BHARAT NIDHI LIMITED Vs. SHITAL PRASAD JAIN

JUDGEMENT

(1.) PLAINTIFF filed this suit inter alia alleging that it is a Public Limited company incorporated under the Companies Act and carries on business of investment and finance. V.N. Bhasin is the Secretary of Company and is authorised to file the suit. By a letter dated 14th December, 1974 the defendant requested the Board of Directors of the plaintiff Company for a loan of Rs. 2 lacs. In the board's meeting held on 21st December, 1974, loan in the said sum carrying interest @ 17% p.a. with monthly rest was sanctioned to the defendant. The plaintiff Company thereafter advanced loan of Rs. 2 lacs to the defendant who in consideration thereof executed a promissory note dated 23rd December, 1974 and also receipt dated 24th December, 1974. It is alleged that the plaintiff had been issuing to the defendant on the expiry of every month the statement indicating the amount of interest due on loan amount. By a letter dated 8th January, 1976 it was brought to the notice of defendant by the plaintiff Company that a sum of Rs. 37,660.30 was outstanding by way of interest. On 16 October, 1976 the plaintiff through its Advocate sent a notice to the defendant to pay the amount of Rs. 2,69,767.80 due from it was n 1st October, 1976 within a period of two weeks of the receipt of that notice failing which suitable legal proceedings were to be initiated for recovery of the said amount. However, said notice was received back undelivered. A sum of Rs. 2,85,557.35 inclusive of interest upto 31st January, 1977 was due to the plaintiff Company from the defendant which he has failed to pay despite repeated reminders. It is prayed that decree for recovery of Rs. 2,85,557.35 with interest pendent lite and future @ 17% may be passed in favour of the plaintiff Company and against the defendant.

(2.) IN the amendment written statement by way of preliminary objec tions it is alleged that the suit is bad for non-joinder of Ashok Kumar Jain and Shanti Prasad Jain; that the document purported to be the promissory note, is not a promissory not nor is it stamped sufficiently; that the alleged promissory note is devoid of consideration and is not legally enforceable. On merits, although it is admitted that the plaintiff is an existing Company within the meaning of companies Act, 1956 but for want of knowledge it is denied that N.V. Bhasin is the Secretary thereof and competent to file the suit. It is further alleged that it was decided by said A.K. Jain and Shanti Prasad Jain on their behalf and on behalf of the plaintiff and PNB to pay certain amounts to the defendant in lieu of the services rendered by him in the past. Ashok K. Jain as Chairman of the plaintiff Company told the defendant that the amount of Rs. 2 lacs was to be shown ostensibly as loan for accounting convenience by the plaintiff but the same would never be recovered from him and written off. Ashok K. Jain further told the defendant to give certain writings including the purported promissory note and as directed by him, certain writings including the purported promissory note were executed in good faith by the defendant in favour of the plaintiff Company. It is stated that the assurance to the said effect was also recorded in writings signed by Ashok K. Jain and handed over to the defendant. The same were also confirmed by said Shanti Prasad Jain, 1975 a large number of armed persons entered into the house of defendant bearing No. 6 hasting Park Road in Alipore, Calcutta and they forcibly opened the locked rooms, almirah etc. and forcibly took away numerous documents which were in the possession of the defendant. The defendant had reason to believe that the raid at his house and attempt of his life on that night was a prearranged planning of said Ashok K. Jain and Shanti Prasad Jain, Defendant thus instituted certain proceedings in the Court of First Subordinate Judge, Alipore, Criminal Proceedings in the Court of Executive Magistrate, Alipore, Calcutta and also in the Calcutta High Court against said Shanti Prasad Jain, Ashok K. Jain and their associates. Thereafter Sahu Shriyans Prasad Jain, Sahu Bajendra Prasad Jain and Sahu Ramesh Chandra Jain, common relatives of the parties approached the defendant and wanted him to withdraw the Court proceedings to pave way for amicable settlement. Accordingly, the Court proceedings were got withdrawn by the defendant. It is further alleged that the documents forcibly taken away on the night of 8th June, 1975 also included the writings referred to above executed by Ashok K. Jain. Liability to pay the suit amount is emphatically denied.

(3.) ON the pleadings of the parties, the following issues were framed: