INDIAN OVERSEAS BANK Vs. SUPER PLASTIC INDIA

JUDGEMENT

(1.) This suit for the recovery of Rs. 2,20,138.62 on the "basis of mortgaged property" was filed in 1982. After several unsuccessful attempts to serve the defendants in the ordinary manner, this was finally achieved by publication in the Statesman for 14.12.1983. The defendants were proceeded ex-parte on that date, as no appearance was entered on their behalf. No efforts have been made to have these orders set aside, or to seek leave to file a written statement, although Mr. V.K. Jain, Advocate, has appeared for defendant No. 1 on several dates of hearing and has even conducted the cross-examination of the Bank's witnesses.

(2.) Since no written statement has been filed by virtue of Order VIII, Rule 10 it was open to the Court to pronounce judgment against the defendants or make such orders in relation to the suit as it thought fit. Despite the fact that the defendants were proceeded ex-parte on two occasions, this summary procedure was not resorted to by the Court. Shri G.S. Matta, Manager, Regional Office of the plaintiff Bank has been examined. He has deposed that Cash Credit Limited of Rs. 80,000.00 has been disbursed to defendant No. 1 by Roop Nagar Branch of the plaintiff Bank on 12.9.1978 and that all the three partners of defendants No. 1 had executed the pronote. He has immediately thereafter deposed that two partners, namely, Hazari Lal and Ashok Kumar Jain had executed the Pronote, Letter of Hypothecation and other Letter of Hypothecation relating to machinery. These documents were duly proved and have been exhibited. He has further deposed that subsequently, one key Cash Credit Limit to the tune of Rs. 40,000.00 was released to defendant No. 1 on 11.10.1979. Two partners executed the Promissory Note and the Letter of Pledge. These documents were filled up by the deponent and one other staff member of the Bank. A Letter of Undertaking dated 12.9.1978 has also been signed by Shri Ashok Kumar Jain in the presence of this witness. Furthermore, it has been stated that a letter of confirmation dated 13.9.1978 for the deposit of title deeds was also signed by Shri Hazari Lal Jain (defendant No. 3), in the presence of the witness. In respect of the documents he has deposed that they were first filled up by him and then signed. He has further deposed that a memorandum of equitable mortgage was executed by Shri Hazari Lal Jain. This witness was extensively cross-examined by Shri Hazari Lal Jain. This witness was extensively cross-examined but his testimony has not been shaken or diluted in any manner.

(3.) Thereafter Shri S.S. Ramdass, also an Officer of the Bank was examined. His testimony is that a term loan was given to defendant No. 1 by him as Acting Manager and that this agreement was signed on 29.4.1980. He has also deposed that the entries were first filled up and then signed by Shri Hazari Lal Jain and / or Ashok Kumar Jain. He has also proved the Revival Letter in Form 111 dated 7.4.1981, Balance Confirmation Letters dated 7.4.1981 and 22.4.1981. He has further proved revival letter dated 22.7.1981. He has produced and proved the partnership deed and the rectification deed filed by the defendants with the plaintiff Bank. As in the case of the previous witness the veracity of his statement has not been dented in any manner.