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IN THE COURT OF THE I ADDL. JUNIOR CIVIL JUDGE: CHITTOOR.
Present: Smt.V. Sri Prathyusha, I Addl. Junior Civil Judge, Chittoor
Thursday, the Twenty Eighth (28 th ) day of May, 2020
ORIGINAL.SUIT.No. 166 OF 2019
Between: Canara Bank, a body corporate constituted under the Banking companies (Acquisition and transfer of undertakings) Act, 1970 having its registered office at Jayachama Rejendra Road, Bangalore, represented by one of its branch manager at Mangasamudram by name P.Mahesh S/o P.Subramanyam, aged about 27 years, holding office at D.No.23, near Gangamma temple, Obanapalle, Mangasamudram post, Chittoor town and District …Plaintiff
And:
1. T.S.Krishna Kishore, S/o T.K.Subramanyam, aged about 38 years proprietor of M/s Darshansai Enterprises, Hindu, carrying Business at D.No.5135/1, Indira nagar, Santhapeta Chitoor town and district.
2. T.S.Usha Rani, W/o T.K.Subramanyam, Hindu, aged about 58 years, Business, resident of D.No.5135/1, Indira nagar, Santhapeta Chitoor town and district.
…Defendants
This suit came before this Court on 10032020 for final hearing in the presence of
Sri. V.Lokanadha Naidu, Advocate for the plaintiff and of Sri G.Vasantha Kumar,
Advocate for defendants 1 and 2 and having stood over for consideration, till this day, this court delivered the following :
J U D G M E N T
This suit is filed for recovery of sum of Rs.5,65,631/ from the defendants together with further interest at 10.40% p.a., from the date of suit till the date of realization and for costs of the suit.
2. In a nutshell, The brief averments of the plaint are as follows :
The plaintiff bank is a body corporate constituted under the Banking companies (Acquisition and transfer of undertakings) Act, 1970. The 1st 2 defendant by name T.S.Krishna Kishore being the proprietor of M/s Darshanai enterprises dealing wholesale and retail business in selling and trading of food products in santhapeta of chittoor town has approached the plaintiff bank along with his mother who is the 2nd defendant herein as coobligant for financial assistance to his business purpose and that the plaintiff bank sanctioned the cash credit loan limit of Rs.4,75,000/ to the 1st defendant on 932016. On the same day I.e.on 09032016 the 1st defendant has executed the deed of Hypothecation for the term loan cum cash credit agreement and demand promissory note for the cash credit loan amount of Rs.4,75,000/ in favor of the plaintiff bank agreeing to repay the same along with interest at 10.40% p.a.., every month periodically by renew the loan account yearly in favor of the plaintiff bank and both the defendants have executed the guarantee agreement for the cash credit loan limit of Rs.4,75,000/ in favor of the plaintiff bank. Inspite of several repeated demands, the defendants have failed to maintain the account regularly by paying monthly interest and failed to renew the loan yearly as per cash credit loan agreement dt.932016 in favor of the plaintiff bank. As per the statement of accounts, the defendants are liable to pay outstanding cash credit loan amount of
Rs.5,65,631 as on 232019 along with further interest to the plaintiff bank.
Hence the plaintiff bank is obliged to file the suit against the defendants for recovery of the suit amount.
3) The 1st defendant filed his written statement and the 2nd defendant filed her adoption memo adopting the written statement filed by the 1st defendant. The defendants by denying the plaint allegations, contended that the 1st defendant's enterprises was not a whole sale and retail business. Before the sanction of loan by the plaintiff's bank, the 1st defendant was insisted by the plaintiff's bank to make a fixed deposit to a sum of Rs.10,000/ and Gold Bonds for a sum of
Rs.23,328/, further the 1st defendant was asked to have a personal insurance on his person by the plaintiff's bank and therefore the 1st defendant had pay a premium of Rs.29,620/ on his persons to the plaintiff's bank and took insurance also. The plaintiff's bank sanctioned cash credit loan limit of Rs.4,75,000/ to this defendant and the 2nd defendant stood as guarantor to the plaintiff's bank. The allegations in Para No.4 of the plaint that the plaintiff's bank officials have taken 3 signatures on various papers from the defendant in granting loan of Rs.4,75,000/ is true and correct but the said papers duly signed by the 1st defendant are deed of hypothecation cum cash credit loan agreement and demand pronote agreeing to repay the interest @ 10.40% per annum and monthly interest are not aware to the 1st defendant. The 1st defendant was not given any opportunity for perusal of documents to know about the details of the documents duly signed by him. The 1st defendant regularly made payment towards the cash credit loan from April 2016 to April 2017 but the plaintiff's bank for the reasons bests has not stated about these payments made regularly by this defendant. The following facts are also brought to the notice of the plaintiff's bank stating the reasons why the further installments were not made by this defendant. One Sri Selva Vinayaka
Traders, No.464B, Bazaar Street, Puttur its proprietor by name D.Murugesan to whom an advance of Rs.5,00,000/ paid by way of cheque bearing No.162005 through the plaintiff's bank and a sum of Rs.25,000/ to S.Venkartesh Murthy as advanced towards price for supply of Tanjara Food Product. This fact is supported by the perusal of statement of account maintained by the plaintiff's bank. As the said Tanjara Food Product has no demand in the market and as there was no cooperation from the said Selva Vinayaka Traders and the said
Venkatesh Murthy, this defendant was forced to suffer loss and sent back the stock of Sri Selva Vinayaka Traders and the said traders have to repay the costs of this stock returned to him, yet this fact was also brought to the notice of the plaintiff's bank and about the loss suffered by this defendant and with a request to the plaintiff's bank to allow this defendant to waive a part of loan amount (actual due only and not the due as alleged by the plaintiff's bank). But the request of the 1st defendant was not considered by the plaintiff's bank officials.
As matter of fact, yet this defendant has to receive back of the price which he paid to the said Sri Selva Vinayaka Traders on return of the said product also. Thus it is clear that the plaintiff's bank officials have allowed the cash credit account proper settlement and to charge penal interest on the actual due amount. The allegations in Para No.6 of the plaint that the outstanding due of the said loan amount is Rs.5,65,631/ and this defendant has to pay future interest to the plaintiff's bank are not true and correct in the above referred circumstances as this defendant is yet to receive back of the price amount he paid, since the stock 4 has been returned and the business of this defendant is failed and at present this defendant is suffering and is not in a financial position to discharge any loan much less the loan of the plaintiff (actual amount due and not the amount as claimed by the plaintiff) and this defendant requested the plaintiff's bank number of time to waive the loan also, even his family also have no source of income and starving the livelihood. The plaintiff's bank is not kind enough even to adjust the
FD amount and Gold Bonds amount in order to reduce the interest claimed.
Hence the suit is liable to be dismissed.
4)On the strength of the above pleadings, the following issues were settled for trial:
1. Whether the plaintiff bank is entitled to the suit claim as sought for?
2. To what relief?
5) During the course of trial, the branch manager namely P.Mahesh examined himself as P.W.1. In addition to that, P.W.1 exhibited Exs.A1 to A6.
On behalf of the defendants, the 1st defendant examined himself as D.W.1. No documents were marked on behalf of the defendants.
6)Heard both the sides arguments.
7) ISSUE NO.1:
i)The learned counsel for the plaintiff has contended that the 1st defendant by name T.S.Krishna Kishore being the proprietor of M/s Darshanai enterprises dealing wholesale and retail business in selling and trading of food products in santhapeta of chittoor town has approached the plaintiff bank along with his mother who is the 2nd defendant herein as coobligant for financial assistance to his business purpose and that the plaintiff bank sanctioned the cash credit loan limit of Rs.4,75,000/ to the 1st defendant on 932016. To prove the same, PW1 exhibited Exs.A1 and A2. He further deposed that on the same day i.e.
on 09032016, the 1st defendant has executed the deed of Hypothecation for the 5 term loan cum cash credit agreement and demand promissory note for the cash credit loan amount of Rs.4,75,000/ in favor of the plaintiff bank agreeing to repay the same along with interest at 10.40% p.a.., every month periodically by renew the loan account yearly in favor of the plaintiff bank and both the defendants have executed the guarantee agreement for the cash credit loan limit of Rs.4,75,000/ in favor of the plaintiff bank. To prove the same, PW1 exhibited
Exs.A3, A4 and A5. Inspite of several repeated demands, the defendants have failed to maintain the account regularly by paying monthly interest and failed to renew the loan yearly as per cash credit loan agreement dt.932016 in favor of the plaintiff bank. As per the statement of accounts, the defendants are liable to pay outstanding cash credit loan amount of Rs.5,65,631 as on 232019 along with further interest to the plaintiff bank. To prove the same, PW1 exhibited
Ex.A6. The Exs.A1 to A6 clearly shows that the defendants are liable to pay the suit claim as sought by the plaintiff bank. He further deposed that the defendants have failed to prove their defence. Hence the plaintiff bank is obliged to file the suit against the defendants for recovery of the suit amount and as such the plaintiff bank is praying this court to decree the suit.
ii)On the other hand, the learned counsel for the defendants has contended that the 1st defendant's enterprises was not a whole sale and retail business and before the sanction of loan by the plaintiff's bank, the 1st defendant was insisted by the plaintiff's bank to make a fixed deposit to a sum of
Rs.10,000/ and Gold Bonds for a sum of Rs.23,328/, further the 1st defendant was asked to have a personal insurance on his person by the plaintiff's bank and therefore the 1st defendant had pay a premium of Rs.29,620/ on his persons to the plaintiff's bank and took insurance also. He has further contended that the 1st defendant is not aware about Exs.A3 and A4 and he was not given any opportunity or perusal of documents to know about the details of the documents duly signed by him. He has further contended that the allegations in Para No.6 of the plaint that the outstanding due of the said loan amount is Rs.5,65,631/ and this defendant has to pay future interest to the plaintiff's bank are not true and correct in the above referred circumstances as this defendant is yet to receive back of the price amount he paid, since the stock has been returned and the 6 business of the 1st defendant is failed at present, the 1st defendant is suffering and is not in a financial position to discharge any loan much less the loan of the plaintiff and the 1st defendant requested the plaintiff's bank number of time to waive the loan also, even his family also have no source of income and starving the livelihood. The plaintiff's bank is not kind enough even to adjust the FD amount and Gold Bonds amount in order to reduce the interest claimed. There is no cause of action to file the suit. Hence there are no merits in the suit and the suit is liable to be dismissed.
iii)This issue casts legal burden on the plaintiff bank to prove that the plaintiff bank is entitled to the suit claim as sought for. To prove the same, the branch manager namely P.Mahesh examined himself as P.W.1 and he filed his affidavit in lieu of his examinationinchief wherein he reiterated the plaint pleadings and as such the examination in chief is nothing but the replica of the plaint. In addition to that, P.W.1 exhibited Exs.A1 to A6. On perusal of Ex.A1, it appears that the defendants have made loan application for availing loan of
Rs.4,75,000/ from the plaintiff bank on 232019 for the purpose of their business. On perusal of Ex.A2, it appears that the plaintiff bank has given sanction letter for an amount of Rs.4,75,000/. On perusal of Ex.A3, it appears that the 1st defendant has executed Hypothecation agreement cum credit cash loan agreement on 932016 in favor of the plaintiff bank for an amount of Rs.4, 75,000/. On perusal of Ex.A4, it appears that the 1st defendant has executed demand promissory note on 932016 in favor of the plaintiff bank for an amount of Rs.4, 75,000/. On perusal of Ex.A5, it appears that both the defendants have executed guarantee deed to the plaintiff bank for an amount of Rs.4,75,000/.
On perusal of Ex.A6, it appears that the defendants are liable to pay an amount of
Rs.5,65,631 as on 2822019. During the cross examination of P.W.1, P.W.1 deposed that the plaintiff bank has sanctioned loan for D1 for the purpose of business and he was not present at the time of sanctioning loan to D1 and he doesn't know whether his predecessors enquired whether D1 is doing business or not. He further deposed that subsequently he enquired and he came to know that
D1 closed his business due to non availability of stock and Subsequently he enquired about D1 and he came to know that D1 is working. He further deposed 7 that he asked D2 about business running by D1 and they have shown the amounts paid by D1 towards loan amount in his loan account. He further deposed that D1 has availed loan open cash credit and Open cash credit means running loan, for eg. If the borrower wants some amount on that day then he can borrow within the limits available and interest will be charged for the said availed amount. He further deposed that every year borrower has to renewal his account and borrower has to pay monthly interest for the availed amount only and D1 has availed total amount of Rs.4,75,000/ immediately as per Ex.A6 and he has paid interest for the said amount for some period as per Ex.A6. PW1 denied the suggestion that the plaintiff bank has not calculated interest amount which he has paid in Ex.A6 and D1 also paid nearly Rs.1,00,000/ to the plaintiff bank, but the plaintiff has not calculated the said amount in Ex.A6. He further deposed that he has not filled the promissory note and other forms and he is giving evidence basing on the records. PW1 further denied the suggestion that Ex.A6 is wrong and basing on that the suit is liable to be dismissed. On perusal of entire cross examination of PW1, it is seen that nothing worth material is culled out from the cross examination of PW1 on behalf of the defendants.
iv) The main defence of the defendants is that “ they suffered heavy loss in the business and closed the same and their business is retail business and it is only an agency and the 1st defendant was not aware that he has executed Exs.A3 and A4 and he regularly paid payment towards the cash credit loan from April 2016 to
April 2017”. To prove the same, the 1st defendant examined himself as DW1.
Chief affidavit of DW1 is nothing but replica of his written statement. During the crossexamination of DW1, DW1 deposed that he has received the documents filed in this suit and perused the said documents and after filling up Ex.A3 only, he has endorsed his signature in that document. On perusal of chief affidavit of
DW1, it is seen that DW1 in para no.4 of his chief affidavit stated that he was not aware of the said documents i.e.,Exs.A3 and A4 and he was not given opportunity or perusal of documents to know about the details of the said documents. But during the cross examination of DW1, DW1 deposed that after filling Ex.A3 only, he has endorsed his signature, it means the 1st defendant is very well aware about
Exs.A3 and A4. Hence the said evidence of DW1 clearly shows that the 8 defendants have taken feeble defence in this case. He further admitted that it is his mother signature in Ex.A5 and Ex.A6 clearly shows about the payments made by him. He further admitted that it is his signature in Ex.A4. He further deposed that he has to renew his loan every year by paying monthly interest on outstanding loan amount and he has paid interest up to 2017 year. He further testified that he never renewed his loan. DW1 denied the suggestion that he has not paid interest regularly and hence the plaintiff bank has filed this suit and he is liable to pay the suit amount as sought by the plaintiff bank and the averments mentioned in their written statement is false and the contents of his chief affidavit are all false. He added that he don't have financial capacity to pay the suit amount as sought by the plaintiff bank as he has sustained loss in his business.
DW1 further denied the suggestion that he is having sufficient means to pay the suit amount but wantonly evading to pay the suit amount and he has not sustained any loss and intentionally not paid any debt amount to the plaintiff bank.
v) On perusal of entire evidence adduced by the plaintiff bank and defendants, it is seen that nothing worth material is culled out from the cross examination of PW1 on behalf of the defendants. During the cross examination of
DW1, DW1 clearly admitted that it is his and mother signature in Exs.A3, A4 and
A5. DW1 in para no.2 of his chief affidavit stated that his business is retail business and it is an agency. If really the 1st defendant business is only an agency, then it is the duty of the 1st defendant to produce any related documents to that effect. Without producing any related documents, mere stating in the written statement and chief affidavit is not suffice to believe the defence of the defendants. DW1 further stated in his chief affidavit that “before the sanction of loan by the plaintiff's bank, the 1st defendant was insisted by the plaintiff's bank to make a fixed deposit to a sum of Rs.10,000/ and Gold Bonds for a sum of
Rs.23,328/, further the 1st defendant was asked to have a personal insurance on his person by the plaintiff's bank and therefore the 1st defendant had pay a premium of Rs.29,620/ on his persons to the plaintiff's bank and took insurance also”. When the 1st defendant has made fixed deposits, gold bonds and personal insurance in the plaintiff bank, then it is the duty of the defendants to prove the 9 said facts to the court through any single piece of paper, mere stating in the written statement and in the chief affidavit is not suffice to believe the said fact.
Hence the said defence taken by the defendants in para no. 2 of chief affidavit of
DW1 does not hold any water. The admissions made by the 1st defendant in his chief affidavit and during cross examination clearly shows that he has availed loan of Rs.4,75,000/ from the plaintiff bank under Exs.A1, A3 and A4 for the purpose of business as mentioned by the plaintiff bank and the 2nd defendant stood as guarantor for the 1st defendant under Ex.A5. The documents filed by the plaintiff very well corroborates with the case of the plaintiff bank. As the 2nd defendant stood as guarantor for the 1st defendant for an amount of
Rs.4,75,000/, her liability is coextensive with that of the principal debtor. Hence the 2nd defendant is liable equally as that of the 1st defendant. The other defence taken by the defendants in their written statement clearly shows that it is feeble defence which is not considerable when the suit is filed by the plaintiff bank for recovery of an amount. The plaintiff bank very well established their case and as such the defendants are liable to pay the suit amount as sought by the plaintiff bank. Hence in view of the above discussion, this court comes to conclusion that the plaintiff bank is entitled to the suit claim as sought for. Hence this issue is answered in favor of the plaintiff bank and against the defendants.
8) ISSUE NO.2:
In view of answering Issue No.1 in favor of the plaintiff bank and against the defendants, the suit has to be decreed.
In the result, the suit is decreed with costs in favour of the plaintiff bank and against the defendants and defendants 1 and 2 are jointly liable to pay an amount of Rs.5,65,631/ along with further interest @ 10.40% p.a. from the date of suit till the date of realization.
Typed to my dictation by the personal assistant, corrected and pronounced by me in the court on this, the 28th day of May, 2020.
I Addl. Junior Civil Judge, Chittoor.
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Appendix of evidence witnesses examined
For plaintiff :
P.W.1: P.Mahesh
For defendants:
D.W.1: T.S.Krishna Kishore
Exhibits marked on behalf of the plaintiff:
Ex.A1: The loan application of the defendants dt.2.03.2019 given to the plaintiff bank.
Ex.A2: Sanction letter dt.09.03.2016.
Ex.A3: Deed of hypothecation agreement cum cash credit loan agreement deed dt.09.03.2016 executed by the 1st defendant in favour of the plaintiff bank.
Ex.A4: Demand promissory note dt.09.03.2016 executed by the 1st defendant in favour of the plaintiff bank.
Ex.A5: Guarantee deed dt.09.03.2016 executed by the defendants in favour of the plaintiff bank.
Ex.A6: Statement of account dt.02.03.2019 of the defendant loan account
Exhibits marked on behalf of the defendants: NIL
I Addl. Junior Civil Judge, Chittoor.
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