ORIENTAL BANK OF COMMERCE Vs. MOHAN GUPTA

JUDGEMENT

(1.) This order will dispose of IA No.6832/94 - by the defendant under Order 7 Rule 11 CPC for rejection of the plaint on the ground that averments in the plaint do not disclose cause of action giving rise to a triable issue for a mortgage suit under Order 34 CPC and IA No.9038/94 by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint with a view to convert the mortgage suit into an ordinary suit for recovery of money with other consequential changes in the plaint.

(2.) The facts relevant for the disposal of the applications are as under: The plaintiff bank filed the present mortgage suit for the recovery of sum of Rs. 18,26,014.22 besides pendente lite and future interest, against the defendant, an Officer in its Establishment Branch at the Head Office, mainly on the pleas that: during the course of his employment with the plaintiff bank, while dealing with the staff's vouchers for travelling allowance, medical/hospitalisation bills etc., he made certain interpolations in, the record of the bank and committed certain acts of forgery; opened fictitious accounts in the name of claimants; drew cheques in their names, got them encashed through fictitious accounts and embezzled a sum of Rs. 16,47,356.29 paise, which amount it is claiming through this suit as its own money. (paras 1 to 6 of the pLaint). In the plaint it is also averred that the defendant had obtained housing and car loans from the plaintiff bank thereby adding to his liability towards the bank. It is claimed that the defendant created an equitable mortgage of his immovable property in favour of the bank as also hypothecated the car purchased by him with the bank and for the recovery of the amount so embezzled and loaned, the plaintiff has filed the present mortgage suit. Para 24 of the plaint, spelling out the cause of action for the suit read as follows:

(3.) From the above, it is evident that the suit pertains to both the amounts, namely, the amount allegedly embezzled and the amount advanced as housing and car loans.