BANK OF MAHARASHTRA Vs. UNITED CONSTRUCTION CO

JUDGEMENT

(1.) This is an appeal against the judgment of a learned single Judge of this Court dt. Dec. 18, 1981 dismissing the suit filed by the appellant. We propose to refer to the parties hereafter, for the sake of convenience, by their original description in the suit. The plaintiff is a nationalised Bank. Defendant No. 1 is a partnership firm of which defendants 2 to 4 are the partners. The suit was filed by the plaintiff for recovery of a sum of Rs. 74,047,36 with further interest on Rs. 69,149.26 at the rate of 17% per annum from Sept. 1, 1976 till judgment and thereafter at the rate of 6% per annum.

(2.) The relevant facts have been set out in the judgment of the learned trial Judge and hence we only propose to set out only such of those facts as are necessary for the appreciation of the controversy raised before us. On Oct. 11, 1971 defendant 1 made an application to the Bandra Branch of the plaintiff Bank for opening a current account. That application was signed by defendants 2 to 4. Along with the said application defendants 2 to 4 handed over a letter stating, inter alia, that they were partners of defendant No. 1 firm and gave special instructions that the current account to be opened could be generally operated by cheques signed by any one of the partners. A copy of the said letter is Exhibit 'A' on record. Pursuant to this request of the defendants, a current account bearing No. 115 was opened by the plaintiff Bank. That account was operated upon by defendant 3 on behalf of defendant 1. The case of the plaintiff is that in August, 1973 the defendants requested for an over-draft facility and that facility was sanctioned. Pursuant to this facility, defendant 3 on behalf of the defendant 1 withdrew several amounts from the account and on Sept. 30, 1975 there was a debit balance of Rs. 63,397.37 due from the defendants. The suit was filed by the plaintiff Bank for recovery of this amount with interest at 17%. The plaintiff served a notice of demand on Oct. 6, 1975 on the defendants and an advocate's notice dt. May, 7, 1976. According to the plaintiff, the defendants failed to return the amount and hence the suit was filed on Aug. 31, 1976.

(3.) It may be mentioned that separate written statements were filed by defendants 1, 2 and 4 on the one hand and by defendant 3 on the other. It is not necessary to dilate upon the defences taken up. All the defendants admitted that they had opened a current account with the plaintiff as claimed by the plaintiff but denied that they had sought any over-draft facility from the plaintiff. They further complained that no details about the accounts of the alleged overdraft facility had been supplied to them by the plaintiff. The defendants denied that from time to time there were debit balances in the said account against the defendants, as was claimed by the plaintiff. No issues were framed, as is usually done, before the hearing commenced, but from the judgment of the learned trial Judge it appears that he took the view that the sole issue which required determination in the suit was whether the plaintiff has granted any overdraft facility to the defendants and whether the claim on the basis of that facility was maintainable.