K TRADERS Vs. VIJAYA BANK

JUDGEMENT

(1.) PRESENT appeal is filed by the appellant " original defendant under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 29.04.1985 passed by the learned City Civil Court No.5, Ahmedabad in Civil Suit No. 7 of 1977 in decreeing the suit filed by the respondent " original plaintiff and ordering and directing the appellant " original defendant to pay Rs.1,42,035.72 paise to the original plaintiff with interest at the rate of 16% per annum from the date of the suit till realisation.

(2.) THE original plaintiff " Bank filed Civil Suit No.7 of 1977 against the respondent " original defendant to recover and for decree in the sum of Rs.1,42,035.72 paise in respect of the key loan cash credit facility granted by the plaintiff to the defendant. As per the averment in the plaint, the defendant which is a proprietary concern opened current account by depositing Rs.500/ - on 08.11.1973 with the plaintiff " Bank. That thereafter, the defendant requested to the Bank for key loan cash credit facility with a limit of Rs.1 lac. Pending sanction of the cash credit facility, the defendant was permitted to over draw the account. Thereafter, the defendant delivered hosiery goods on or about 26.12.1973 and requested the Bank to grant ad -hoc facility by opening key loan cash credit account till the limit was sanctioned by the Head Office. The Bank opened a key loan cash credit account and allowed withdrawal of various amounts against security of goods delivered. It is further contended that Head Office sanctioned the key loan cash credit account of Rs.1 lac to the defendant and other family concerns of the defendant. Promissory note, repayment of installment letter and pledge agreement etc. were executed by the defendant. In pursuance of the pledge agreement, hosiery goods which were already delivered to the Bank were included as security and the defendant was also required to deliver hosiery goods to keep the margin approved by the Bank. The defendant delivered to the Bank hosiery goods valued by them and supported by the bills produced by the defendant amounting to Rs.1,67,847.62 paise. It was further contended under the said agreement, the defendant agreed to repay the loan within one year and on default of the stipulated repayment, an additional interest at the rate of 3% per annum was to be charged till the date of the actual payment. The defendant made representation to the Bank that the goods which were pledged were genuine and valuable goods worth the amount shown in the original bills given to the Bank by the defendant. The defendant undertook to keep the goods insured for full value against loss or damage by fire, theft etc. It was further contended that four concerns i.e. M/s. Laxmi Vijay Hosiery Mills, M/s.Pareikh Harivallabhdas Mulchand, M/s.Mathurdas Govindas Parikh and M/s. K.Traders were either partnership firms or sole proprietary concerns of Shri Mathuradas Govinddas Parikh and his family members Smt.Gulablaxmi Govinddas Parikh, Shri Mukundbhai Mathurdas Parikh, and Smt.Illaben Mathurdas Parikh.

(3.) THE defendant contested the suit by filing written statement at Exh.21. It was contended on behalf of the defendant that the suit was barred by limitation and for non -joinder of necessary parties. It was contended that Shri Shirish Mehta who was the person in -charge of the Bank and through whom finance was taken was a necessary party. It was contended on behalf of the defendant that the Bank as no authority to file suit and the security must be realised first or in the alternative the plaintiff must deliver the goods to the defendant. It was further contended that it was agreed by and between the parties that on payment of Rs.45,000/ - by the defendant to the plaintiff, the plaintiff must deliver the pledged goods to the defendant. The plaintiff further failed to do so and did not credit the amount of Rs.45,000/ - to the defendant's account. The learned trial Court framed the issues at Exh.30. The learned trial Court held that the suit is not barred by limitation. The learned trial Court has also held that the suit is not bad for non -joinder of necessary party " Shri Shirish Mehta. So far as other issues are concerned, the plaintiff examined its Officer Shri Mahadev Govind Upadhyaya. The defendant did not led any oral or documentary evidence. The plaintiff proved the promissory note, letter stipulating payment of additional interest at the rate of 3 percent per annum on the defaulted, pledge agreement. After appreciating the evidence on record and considering the rival submissions the learned trial Court decreed suit directing the defendant to pay Rs.1,42,035.72 paise to the plaint with interest at the rate of 16% from the date of suit till realization. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court, the appellant " original defendant has preferred the First Appeal.