CANARA BANK BHLMAVARAM BRANCH Vs. DEVI METAL INDUSTRIES

JUDGEMENT

(1.) The appellant-Bank has preferred this second appeal against the judgment dated 16-9-1987 of the learned District Judge, West Godavari in A.S.No. 55 of 1986 in so far as it is against it. The learned District Judge allowed the appeal in part granting decree for realisation of the suit debt at the contract rate of interest against the assets of the first defendant firm, first respondent herein and dismissing the appeal against the defendants 2 to 4, respondents 2 to 4 herein.

(2.) A.S.No. 55 of 1986 was preferred by the Bank against the judgment and decree of the learned Subordinate Judge at Bhimavaram dated 8-4-1986 in O.S.No. 14 of 1985 to the extent they are against the Bank. That suit was laid by the Bank for the recovery of Rs. 24,015.24 ps. being the balance of principal and interest due to the appellant-Bank from the defendants on account of two loans of Rs. 15,000/- and Rs. 25,000/- given to the first defendant firm on the security of plaint 'B' schedule properties. A mortgage by deposit of title deeds has been created in respect of the said properties by defendants 2 and 4, the owners of the said properties. Defendants 2 and 3 are the partners of the first defendant firm. The defendants claimed that they were agriculturists and that therefore the interest claimed by the appellant-Bank had to be scaled down as per the provisions of Act 4 of 1938 i.e., the A.P. (Andhra Area) Agricultural Relief Act. The trial Court accepted the said contention of the defendants and held that the defendants were entitled to the benefits of the said Act and that the appellant- Bank ought to have calculated the interest on the amounts as per the provisions of the said Act from the date of the inception of the loan. This was questioned by the Bank in A.S.No. 55 of 1986. Ground No. 10 in the said appeal is as follows:

(3.) The learned counsel for the appellant-Bank points out that at the time when the judgments were rendered by the lower Courts in the appeal as well as in the suit, the law as declared by a Division Bench of this court in Indian Bank, Alamuru vs. M. Krishna Murthy was holding the field wherein it was held that Section 4(e) did not apply to the Indian Bank because it was not a Corporation and because it was not formed in pursuance of an Act of British Parliament or in pursuance of any special Indian Law or Rule or Royal Charter or Letters Patent the ugh it was created under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and that therefore debts due to it from agriculturists could not be refused to be scaled down. The learned counsel for the appellant-Bank points out that the Supreme Court in Bank of India vs. M/s. Vijay Transport by its judgment dated 11-11-1987 overruled the decision of this Court in Indian Bank, Alamuru vs. M. Krishna Murthy and held that the Banking Companies Act was a special Indian Law and that Section 4(e) of Act 4 of 1938 was applicable to a Bank nationalised under the Banking Companies Act. The appellant-Bank has also raised a ground in that regard in the memorandum of grounds in the present second appeal. In view of this decision, the learned counsel for the appellant contends that the learned District Judge was not right in observing that respondents 2 to 4, being agriculturists, were entitled for the benefits of Act 4 of 1938. The learned counsel for the respondent does not dispute this position but contends that in the lower appellate Court this question was not pressed and in fact it was given up even though a ground might have been raised in that regard. He relies on the judgment of the Judicial Commissioner of Ajmer in Sheo Prasad vs. Kanhiyalal wherein it was held that if the point has not been urged before the first appellate Court, or if it has been deliberately abandoned, it cannot be raised in second appeal. He also relies on the judgment of the Supreme Court in Gauri Shanker vs. Hindustan Trust Limited wherein it was held that raising grounds in memorandum of appeal was not sufficient to show whether a particular point was actually argued or pressed before the Court and that if the Court expressly stated that only certain points had been argued and no other point had been argued, the statement in the judgment prima facie had to be accepted as correct and that it was open to the party questioning the said observation to file a proper affidavit, preferably of his councel, who had argued the case, along with the memorandum of appeal, stating that the said point had been raised but the Court recording the concession had done so either wrongly or under some misaprenension. the learned counsel for the respondents points out that no such affidavit was filed in the present case.