INDIAN BANK Vs. CHEESE WAFERS INDIA PRIVATE LIMITED

JUDGEMENT

(1.) This is an application filed by the defendants under Order 37, Rule 3(5) read with Section 151 of the Code of Civil Procedure (for short 'CPC').

(2.) The suit has been filed by the plaintiff-Bank under the provisions of Order 37, CPC. Mr. Shyam Moorjani, learned Counsel appearing for the defendants, has argued that in terms of Order 37, Rule (2) of the CPC, plaintiff is required to state that no relief which does not fall within the ambit of this rule has been claimed in the plaint. However, the plaintiff has claimed 2% additional interest by way of penalty, which has been imposed on the defendants. Mr. Moorjani has further contended that such a recovery of 2% on account of alleged penal rate of interest is nothing but a penalty not covered under the provisions of Order 37, CPC. Mr. Moorjani has also contended that the plaintiff-Bank has sanctioned the credit facilities against hypothecation and pledge of raw material, finished goods, packing material, NSC etc. and the plaintiff should have taken prompt care as is required from a reasonable person dealing with securities of hypothecation and pledge of stocks.

(3.) Counsel has also contended that at the time of taking over the assets of the defendant as well as earlier Rajasthan Financial Corporation had informed about the same to the plaintiff Bank and had also advised to take charge of the hypothecated and pledged stocks. He has contended that huge stocks were lying in the factory premises of defendant No. 1 valued at about Rs. 6.5 lakhs, which was much more than the plaintiff Bank could allege, to be due to them. The same was damaged on account of negligence of the plaintiff and non-action on the part of the plaintiff Bank. Said non-action of the plaintiff was detrimental to the interest of defendants and the defendants are not liable to pay any amount to the plaintiff Bank. He has further argued that whether any liability pursuant to the suit filed by the plaintiff is existing, would be determined only after the evidence is recorded and, therefore, has contended that there are triable issues which have to be tried on the basis of these arguments. Mr. Moorjani has contended that leave to defend may be granted to the defendants unconditionally.