RAJESH KUMAR AGGARWAL Vs. PUNJAB AND SIND BANK

JUDGEMENT

(1.) The plaintiff, Punjab and Sind Bank filed a suit against three defendants for recovery of Rs. 4,85,250.40 with pendente lite and future interest. According to the case pleaded by the plaintiff, Sh. Mathura Yadav, Sole Proprietor of defendant No. 1. i.e. Shree Ganesh Trading Company was having a current account with the plaintiff bank and during the course of their business and on their request made on 3.4.1997, the plaintiff bank agreed to extend the financial facility to defendant No. 1 in relation to the bills for sale of goods worth Rs. 3,17,804.40 to M/s. Parul Poultry Farm vide bill No. 291 dated 1.4.1997. Defendant Nos. 1 and 2 had drawn hundi on the said buyer for the amount of the above stated bill. Defendant Nos. 1 and 2 had represented that they were in dire need of money and wanted an advance/purchase of the bill/hundi which was granted to the defendants on the assurance that the amount would be adjusted upon payment. The bill/hundi was sent to the State Bank of India but the plaintiff bank was informed on 10.7.1997 that the purchaser had refused to accept the consignment and the hundi and the defendants refused to pay the amount despite request. Defendant No. 3 is stated to have stood as a guarantor for repayment of the amount. The demand was raised by the plaintiff bank on the defendants through legal notices dated 20.7.99 and 3.8.99 which according to the plaintiff were received by the defendants and still they refused to make the payment resulting in filing of the suit under the provisions of Order 37 of the CPC, claiming the relief on the basis of the hundi and the guarantee deed.

(2.) Summons in the suit were issued to the defendants. Defendant Nos. 1 and 2 did not put in appearance and file any application for leave to defend. Thus, the suit was decreed against defendant Nos. 1 and 2 by the Court. Defendant No. 3 filed an application for leave to defend and took up the plea that he had never stood as guarantor for defendant Nos. 1 and 2. It was stated that the suit against defendant No. 3 was frivolous, vexatious and illegal. The specific stand taken was that M/s. Rajesh Sales Corporation, a partnership firm was having its O.D.P. Account No. 5005 with the plaintiff bank where the said defendant was a partner and credit facility was given to the said concern. Still, there was another current account being operated by brother of defendant No. 3, Sh. Deepak Kumar in the name of his sole proprietor ship concern M/s. Anand Kumar Deepak Kumar and the said firm was also availing the credit facilities from the plaintiff bank. Defendant No. 3 had stood surety for his brother in respect of the current account of M/s. Anand Kumar Deepak Kumar and the blank papers were got signed by the bank officials to provide credit facility to the brother of defendant No. 3 and he had never stood as surety for defendant Nos. 1 and 2 in the suit. It was also stated that a sum of Rs. 40,000/-, without any instructions from the partnership concern of defendant No. 3 M/s. Rajesh Sales Corporation, was also got debited from its account and credited in the account of defendant Nos. 1 and 2 illegally and in a arbitrary manner. It was specific pleading of the said defendant that the blank papers got signed by the bank officials have been misused by the plaintiff bank. The case of the plaintiff thus was based on fabricated and manipulated documents. It was also stated that the suit of the plaintiff was not covered under the provisions of Order 37 of the CPC.

(3.) This application for leave to defend was rejected by the learned trial Court vide its order dated 18.9.2001 whereupon a decree was passed in favour of the plaintiff bank and against defendant No. 3 for a sum of Rs. 4,85,250.40 with pendente and future interest @ 12% p.a. The findings of the trial Court in the impugned order read as under: