DENA BANK Vs. CHAMELI BAI

JUDGEMENT

(1.) This first appeal under Section 96 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 23rd April, 2003 passed in Civil Suit No. 3-B/02 whereby the learned II Additional District Judge (FTC), Bemetara has dismissed the suit of the plaintiff/Bank as barred by limitation. (Parties shall hereinafter be referred to as per their description before the trial Court.)

(2.) The plaintiff/Bank filed a civil suit for recovery of loan of Rs. 3,11,880/- advanced to defendant No. 1 for purchase of tractor and trolley with the averment that the loan was advanced on 8-7-1985 after defendant No. 1 executed a demand of promissory note; letter of guarantee by sureties-defendants Nos. 2, 3 and 4; Term Loan Agreement of Hypothecation of Movable Properties; hypothecation of standing crops, as detailed in para 4 (A) (B) (C) and (D) of the plaint. The loan was repayable in half yearly installments in seven years with interest @ 12.50% on six monthly rests. On failure of defendant No. 1 in timely repayment of the instalments with interest and expenditure, notices were served. However, when the defendants failed to repay the installments even after receipt of notices, recovery proceedings were initiated before the Tehsildar in the year 1993 as per provisions of the M.P. Public Money Recovery Act and the same were, subsequently, withdrawn. It was also averred that defendant No. 1 executed a promissory note promising to repay the entire loan amount in lump sum as per loan account acknowledging balance of loan vide acknowledgments dated 14- 8-1995, 24-7-1996 and 30-1-1997. Defendant No. 1 had mortgaged her 29.45 acre of agricultural land in favour of the Bank by depositing the documents described in Schedule B annexed with the plaint as additional security against the loan. Defendants Nos. 3 & 4 had also equitably mortgaged their property described in Schedules C & D. Defendant No. 1 had executed an Acknowledgment of Debt at the time of disbursal of loan and renewed the Acknowledgment of Debt in the year 1991 & 12th May, 1994 and accepted her liability towards the Bank as per her loan account with the Bank.

(3.) The defendants, denying the averments in the plaint, averred in their written statement that the plaintiff/Bank had instituted recovery proceedings before the Tehsildar. The defendants had submitted their legal objection against initiating recovery proceedings without issue of revenue recovery certificate. When their objection was rejected by the Tehsildar, they had filed a writ petition before the High Court of Madhya Pradesh, however, after receiving notice from the High Court, the plaintiff in collusion with the Tehsildar, got the proceedings dismissed as withdrawn and filed the instant suit during pendency of the writ petition.