ORIENTAL BANK OF COMMERCE Vs. DARSHANLAL GABA

JUDGEMENT

(1.) The plaintiff. Oriental Bank of Commerce, has filed this suit for recovery of Rs. 2,22,289.31 to gether with pendente lite and future interest from the date of the filing of the suit till realisation of the decretal amount at the rate of 14.5% per annum, inter alia, for the sale of hypothecated Tata Bus Model LP 121 OE/52, Chassis No. 344-050-1-61340 bearing Registration No. DEP 5782. Defendant No. 1 was the principal borrower and defendant No. 2 is the guarantor. The defendants had filed Written Statements wherein they had denied their liability towards the plaintiff Bank on various grounds. The following issues were framed on 21.1.1991.

(2.) During the pendency of the suit a statement was made on 11.11.1992 by Counsel for defendant No. 1 to the effect that defendant No. 2 had died in September, 1991. Over ten opportunities were granted to the plaintiff for impleading the legal representatives of defendant No. 2 but none of these opportunities were availed of and finally by order dated 15.3.1996 the suit stood dismissed against defendant No. 2. Subsequently on 12.5.1998 ex parte order was passed against defendant No. 1 and the plaintiff was given an opportunity to lead evidence by way of affidavit. The affidavit by way of evidence dated 4.8.1998 was filed on 7.8.1998. This affidavit has been sworn by Shri Vijay Sehgal who has deposed that at the material time he was working in the loan department and that Shri K-K .Kapoor was working as Manager and Principal Officer of the plaintiff Bank and he is fully conversant with the facts of the case. Issue No. I

(3.) It has been deposed that Shri K.K. Kapoor was the Bank Manager at the time when the plaintiff-Bank released the loan to defendant No. 1, and Shri Vijay Sehgal (hereinafter referred to as Public Witness 1) was then working in the loan department. The signatures of Shri K.K. Kapoor have been duly proved as well as the authorisation letter in his favour (Exhibit P1) and the general power of attorney (Exhibit P2) dated 26.5.1997 executed in his favour. Signatures of Shri K.K. Kapoor on the plaint and the vakalatnama have also been proved. This issue is, therefore, decided in favour of the plaintiff. Issue No. 2