M BERNARDSINGH Vs. SYNDICATE BANK NAGERCOIL BRANCH

JUDGEMENT

(1.) THE first defendant in O. S. No. 58 of 1992 on the file of the Sub-Court at Nagercoil is the appellant in this appeal. THE plaintiff in that suit and defendants 2 to 4 therein are respondent No. 1 and respondents no. 2 to 4 respectively in this appeal. In this judgment the parties to the appeal would hereinafter be referred to as the plaintiff and the defendants. THE plaintiff filed the above suit against the defendants praying for a composite decree for a sum of Rs, 1,51,424. 45 together with interest thereon; a preliminary decree for the sale of the hypotheca described in the schedule to the plaint and a personal decree against defendants 1 to 3 in case the entire decree amount is not realised on the sale of the hypotheca. On contest, the learned trail Judge decreed the suit against the 4th defendant. THE first defendant is therefore before this court in this appeal. Heard Mr. G. Subramaniam, learned senior counsel appearing for the appellant; Mr. N. Srivatsamani, learned counsel appearing for the first respondent/decree holder as well as Mr. J. James, learned counsel appearing for respondents 2 and 3. As far as respondent No. 4 is concerned, a Division Bench of this Court passed an order on 19. 10. 1999 dismissing the appeal as against him for non-prosecution.

(2.) THE plaintiff sought for the relief referred to above alleging the following facts: "the first defendant availed a loan of Rs. 65,000 on 25. 9. 1976 for purchasing a second hand mechanised fishing boat. THE boat was purchased with the loan amount advanced by the plaintiff bank. At the request of the first defendant, the loan amount was paid to one H. D. Simon of ganesapuram at Nagercoil. Defendants 2 and 3 stood as sureties for the repayment of the loan amount due to the plaintiff. Defendants 1 to 3 have executed a memorandum of agreement on 25. 9. 1976. Defendants 1 to 3 also promised to r e-pay the loan amount in monthly instalments spread over the period commencing from 25. 10. 1976 and ending with 25. 10. 1980. THE contract also provided for payment of interest not less than 7-1/2 % p. a. above the Reserve bank of India rate subject to the minimum of 16-1/2% p. a as on 31st March; 30th june; 30th September and 31 st December of each year. THE contract provided for payment of over-due interest at the rate of 2-1/2% p. a. , if the defendants commit default in payment of the amount as scheduled. THE first defendant also executed a receipt acknowledging the receipt of the loan amount on 25. 9. 1976. THE first defendant also executed a letter of declaration dated 25. 9. 1976 that he will not borrow on the boat till the loan in favour of the plaintiff is fully discharged. THE first defendant also executed a memorandum of agreement hypothecating the property mentioned in the schedule thereto in favour of the plaintiff on 25. 9. 1976 as security for the due repayment of the loan amount. THE boat had been insured with the Insurance Company. THE plaintiff has been paying the premium regularly and debiting the same in the name of the first defendant. As the policy is to be kept alive, the plaintiff Bank may be permitted to pay the future premium and to recover the same from the defendants. THE first defendant agreed to accept their liability towards the plaintiff on the basis of the statement of account to be sent by the plaintiff bank. A sum of Rs. 1,51,424. 45 is due to the plaintiff as on 20. 7. 1982. A certified true extract copy of the statement of the loan account is filed. On 21. 5. 1977 the plaintiff issued a notice to the defendants to repay the loan amount. Defendants 1 and 2 received the notice. THE notice sent to the third defendant was returned unserved. On 15. 2. 1978 the plaintiff issued another notice to the defendants. THE notice addressed to defendants 1 & 3 were returned unserved. THE second defendant received the said notice and sent a reply dated 27. 2. 1978. THE first defendant acknowledged the debt by signing the acknowledgment of liability dated 20. 7. 1979 in respect of the loan amount concerned in the suit. THErefore the suit is not barred by limitation. As 20. 7. 1982 was a local holiday, the suit filed on the next working day namely, 21. 7. 1982 is in time. THE defendants are not entitled to the benefits of any of the Tamil Nadu Debt Relief Laws. Hence the suit for the reliefs already referred to above. "

(3.) ON the side of the plaintiff one witness was examined as P. W. 1 and on the side of the defendants, the first defendant alone gave evidence as D. W. 1. As many as 13 exhibits were marked on the side of the plaintiff namely, Exs. A. 1 to A13 and on the side of the defendants Exs. B. 1 to b. 5 were marked. ON the above pleadings the learned trial Judge framed the following issues: (a) Whether the defendants are liable to pay the plaintiff the amount claimed in the plaint" (b) Whether the 4th defendant has any right in the hypothecated property and whether he is a necessary party" (c) Whether the interest claimed by the plaintiff is excessive" (d) Whether the suit is barred by limitation" (e) To what relief the plaintiff is entitled to" Inasmuch as the 4th defendant was added as a party to the suit by an order of the lower court on an application filed by the first defendant, the learned trial Judge found that the decision on Issue No. 2 really does not arise and therefore he did not render any finding in regard thereto. The learned trial Judge took up all the other issues namely, Issues nos. 1,3, and 4 together. Issue Nos. 3 and 4 were answered in the affirmative in favour of the plaintiff. In the result the suit as against the 4th defendant was dismissed without costs and a decree as prayed for was passed against defendants 1 to 3. It is the correctness of this judgment that is being questioned in this appeal by the first defendant.