VALMIKI KEDA NIKAM Vs. BANK OF MAHARASHTRA

JUDGEMENT

(1.) THE appellants are hereby taking exception to judgment and decree passed by Civil Judge, Senior Division, Nasik in the matter of Civil Suit No.125/1983.

(2.) SOME facts need to be mentioned for unfolding the controversy in issue. The appellants took two loans from the Bank of Maharashtra, Malegaon Branch (hereinafter referred to as, Bank for convenience). The first loan was of Rs. 2,04,000/- which was taken on 17th March 1972. Second loan was of Rs. 76,000/- and it was taken on 13th May, 1974. Some lands were mortgaged as security for repayment of the loan. The appellants paid some instalments and thereafter failed in arrears in repayment of the loan amount which increased to the tune of Rs. 7,63,515.29 paise. A suit notice was issued which was replied to by the appellants. The amount sought to be recovered was not paid by the appellants and therefore, suit was filed in the said Court. Some objections were raised about the maintainability of the suit in respect of its form and on account of the law of limitation. In addition to normal defences raised by the debtor an objection was also taken that as the said lands were mortgaged with the Co-operative Society, the suit was not tenable in view of sections 47 and 48 of Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as, Societies Act for convenience). The learned trial Judge after recording the evidence and appreciating it passed the judgment and decree against the appellants and therefore, this appeal.

(3.) MS . Baxi further submitted that the loan was taken on 17th March, 1972 and that was to the tune of Rs. 2,04,000/- and thereafter, another of Rs. 76,000/- was taken on 13th of May 1974. Therefore, the period of limitation would start from 7-3-1972 and 13-5-1974. It is her submission that, the trial Court committed the error in not properly noticing this infirmity in the case of respondent bank. The learned trial Judge has held that the demand notice issued by the bank was mentioning the amount recoverable as Rs. 7,63,513.29 paise. He has concluded that the suit was within the period of limitation when it was filed on 27th of June, 1982. Though he did not elaborate the reasons for justifying his said conclusion, this Court is not precluded from perusing the material on record for the purpose of answering the submissions advanced on behalf of the appellants. The cause of action means the bundle of facts which the plaintiff is required to prove for getting decree from Civil Court of competent jurisdiction. Therefore, each and every facet which the bank was obliged to prove for getting decree for against present the appellants will have to be considered and that would include acknowledgment of the liability of repaying the said debt acknowledged by the appellants. The rozanama shows that when P.W.1 Arun Vinayak Kukde was examined on behalf of the bank he proved the loan application dated 17-3-1973 which was marked as Exhibit 54/19-P. Thereafter, loan applications preferred by Ramrao Motiram Nikam, defendant No.8, defendant No.7, defendant No.6, defendant No.5, defendant No.4, defendant No.3, defendant Kedu Vedu Nikam were filed and were admitted in evidence. Thereafter the payment vouchers were produced in respect of payments made to the appellants. Thereafter extract of statement of account were tendered in evidence and were admitted at Exhibit 3/38-P, 3/39-P, 3/40-P, 3/42-P, and 54/-43-P. Payment voucher in respect of Rs. 6000/- was produced so also Exhibit 2/19-P, 320-P, 3/21-P, 3/22-P, 3/23-P were produced and were admitted on record. Those are the acknowledgments given by appellant Nos.1, 2, 3, 4,