SYNDICATE BANK Vs. JOSE INACIO LOURANCE

JUDGEMENT

(1.) This revision application challenges the order of June 7, 1990, made in Civil Miscellaneous Application No. 161 of 1990/A read with the order dated September 25, 1990, in Civil Miscellaneous Application No. 291 of 1990/A. At the outset, it must be re4corded that this matter was called out on Monday, the January 6, 1992. Neither counsel nor parties were present. When the matter is called this afternoon again, neither counsel nor the parties are present.

(2.) Ordinarily, I would have ventured to dismiss the matter for default but I propose not to do that because this matter was admitted on January 24, 1991, upon a prima facie disclosure of a fraud on the court. The Syndicate Bank which is a nationalised bank is sought to be duped in this matter and a substantial amount is also at stake. Prima facie, if the allegations now made are true, it would, admittedly, reveal a fraud played by the respondent. It is, in this view of the matter, that I have looked into the papers and succinctly point out what it is. ONe Krishna C. Naik obtained a loan in the amount of Rs. 1,03,000 on July 9, 1975, from the Syndicate Bank against the hypothecation of a brand new chassis of the Ashok Leyland for which the respondent, Jose Inacio Lourence, stood as a guarantor. Having found that no recovery was forthcoming, the bank instituted a civil suit. The suit was decreed against both Krishna C. Naik and Jose Inacio Lourence in the amount of Rs. 89,775.30 with interest at the rate of 17 per cent. Needless to say that the suit decreed was joint and several. As against that decree, the respondent, Jose Inacio Lourence, preferred an appeal being First Civil Appeal No. 41 of 1986, in this court and contended before the Division Bench that the Syndicate Bank was negligent in allowing the security, namely, the hypothecated chassis, to go out of the territory and, therefore, no decree could have been made against him. While disposing of the appeal on August 26, 1987 1 the Division Bench held that, from the letters of the Assistant Director of Transport, it is not shown that any charge of the loan was registered in the office of the Regional Transport Officer. The court, therefore, observed that the creditor- bank had parted with the security within the meaning of section 141 of the Contract Act, and, therefore, the respondent is liable to be discharged. It appears that it was pointed out that the vehicle has been sold to somebody in Andhra Pradesh and it was contended on behalf of the respondent that, if the charge had been registered in the office of the Regional Transport Officer, then no such sale would have been possible. The Division Bench accordingly, modified the decree and made the aforementioned Krishna C. Naik against whom the suit proceeded ex parte to pay the decretal amount, discharged the respondent and allowed the appeal with costs.

(3.) The respondent filed execution to recover his costs and it is at this stage that Syndicate Bank moved an application before the executing court that right from day one, that is to say, the date on which or about the time the loan was obtained and the chassis hypothecated in favour of the Syndicate Bank, the respondent was in possession of the said chassis under a written agreement dated July 20, 1975, with the aforementioned Krishna C. Naik and under which the chassis was sold to the respondent at a price of Rs. 1,11,000. Under that agreement, it was the respondent who has otherwise agreed with the aforesaid Krishna 1. See Jose Inacio Lourence v. Syndicate Bank, 1989 65 CompCas 698.