BANK OF BARODA Vs. ABASAHEB SIDU CHAVAN

JUDGEMENT

(1.) THE Bank of Baroda has preferred this appeal against decree dated 25th February, 1977, passed by the Court of CivilJudge, Senior Division, Sangli at Sangli in Special Civil Suit No. 90 of 1974. The parties to the appeal are hereinafter referred to as the 'Plaintiffs and the Defendants'.

(2.) ON or about 1st July, 1974, the plaintiffs bank filed the above referred suit against the defendants for recovery of a sum . of Rs. 49,161.60 alongwith interest thereon at 11% per annum from the date of filing of the suit till realisation and cost of the suit. It was averred in the plaint that defendant No. 1 was the principal debtor in respect of the said amount and defendants No. 2 and 3 were the guarantors. The plaintiffs also sought enforcement of the hypothecation as well as the mortgage created by defendant No. 1 in favour of the plaintiffs to secure the amount of suit claims as set out in the plaint. It was the case of the plaintiffs in the plaint that defendant No. 1 had inter alia executed a writing of hypothecation as well as Deed of Mortgage in favour of the plaintiffs to secure the amount of the suit claim. According to the plaintiffs, the said Deed of mortgage was executed by defendant No. 1 on 12th January, 1970. The defendant No. 1 executed Demand Promissory Note for Rs. 35.000/ - (Exhibit 47), a Deed of Hypothecation in respect of machinery (Exhibit 49) as well as a registered Deed of Mortgage creating security on lands specified in the Deed of mortgage '(Exhibit 48). The Plaintiff Bank is supposed to have obtained three bearer cheques from defendant No. 1 as and by way of security i.e. cheques marked as exhibits 58, 61 and 62 respectively. It was the plaintiffs' case in the plaint that the defendant No. 1 was liable to return the amount of the suit claim with interest as stipulated in various documents referred to in the plaint. The defendant No. 1 is an agriculturist. It was the case of the plaintiffs in the plaint that the defendant No. 1 had agreed to pay interest to the plaintiffs on the sanctioned amount of loan at the rate of 4% per annum above the bank rate of Reserve Bank of India subject to a minimum of 9% per annum. According to the plaintiff, the plaintiff paid a sum of Rs. 10.000/ - to defendant No. 1 on 4th February 1970, a sum of Rs. 10.000/ - on 22nd September, 1970, and a sum of Rs. 6400/ - on 19th January. 1971. The plaintiff Bank debited the defendant No. 1 in sum of Rs. 8538.30 on account of amounts paid to Bhanu Cement Pipe Industries on 23rd February 1972 at instance of defendant No. 1. The defendant No. 1 did not admit the suit claim. The defendant No. 1 filed his written statement in the suit raising all sort of pleas.

(3.) AT the trial of the suit, the trial Court framed issues as detailed in para 5 of its judgment. At the trial of the suit the plaintiffs bank examined several witnesses. The defendant No. 1 did not enter the witness box. The defendant No. 2, the guarantor, did not enter the witness box.