CENTRAL BANK OF INDIA Vs. RAVI SHANKAR KOTHWAL

JUDGEMENT

(1.) IN the trial Court, the plaintiff -Bank simply relied on the documents and the statement of account filed by it and did not adduce any oral evidence. The defendants/respondents also examined only defendantNo.1 Ravi Sharan as P. W.1. It is no doubt true that the defendants have admitted the advancement of amount and execution of promissory demand note. The defendant No.1, who was examined as D. W. E., has admitted his signatures on the plaintiff -Bank's documents (Ex. P/1 to Ex. P/7). Exhibit P/8 is the statement of accounts. According to the plaintiff's own pleadings as contained in para 6 of the plaint, the interest was chargeable with six monthly rests, but from perusal of the statement of account (Ex. P/8), it could not be deciphered whether the interest is calculated on the basis of six monthly rests or on the basis of monthly rest. The defendants/respondents in their written statement have specifically pleaded that the plaintiff -Bank has charged interest on monthly rest instead of six monthly rests, contrary to the agreement. Though there was specific pleadings with regard to the improper charge of interest and wrong calculation of interest on that basis yet no issue has been framed by the learned trial Judge nor any finding to that effect has been given. In view of the pleadings of the parties, the onus was on the plaintiff appellant to show that the interest has been charged on six monthly rests and not on the monthly rest as alleged by the defendants. But the plaintiff preferred to adduce no evidence on that account probably because there was no issue to that eject. As said earlier, it could not be known from bare reading of the statement of account (Ex. P/8) whether the interest is charged on six monthly rests or on monthly rest. However, on cursory look to the said statement of account, it appears that it was not on six monthly rests. The correct finding on this scope can be arrived at only after an issue is framed in that behalf and parties are given opportunity to adduce evidence.

(2.) AS regard the grievance about the payment of decreetal amount by instalment, the Court has discretion to grant the instalments under the provisions of Order XX, Rule 11 of the Civil Procedure Code. The trial Court has discretion to grant instalment either by its judgment if there are pleadings to that effect in the written statement of the debtor or after passing of the decree, if any application to that effect is made under sub -Rule (2) of Rule 11 of Order XX of CPC. The discretion in the matter of grant of instalment as in the case of exercise of all discretion under the Code, has to be exercised in a judicial and not in an arbitrary manner where a prayer for instalment is made by the Debtor, it becomes the duty of the Court to see and examine all the facts concerning the means and circumstances of the debtor as well as of the creditor. The ones, however, is on the creditor to show that he is entitled for the indulgence of the Court. In the present case, the defendants have pleaded that the Principal debtor's venture is running in a loss which is only the means of his livelihood as all the machinery has become old and repairable. The defendant No.1 had also examined himself in support of the said pleadings while the plaintiff -Bank did not adduce any evidence in rebuttal. In these circumstances, it cannot be said that the trial Court did not exercise. its discretion in accordance with the settled principle of law in that behalf. The learned counsel for the defendants/respondents, however, submitted that the defendant No.1 is not even in a financial position to pay the decreetal amount in instalments of Rs. 15,000/ - per year. He, therefore, submitted that the amount of instalment be further reduced to Rs. 10,000/ - per year. But since the matter has to go back to the trial Court for adjudication with regard to the chargeability of the amount of interest, such a grievance may be reiterated by the defendants before the trial Court itself and if necessary to adduce further evidence in this behalf.

(3.) THIS brings me to the grievance of the learned counsel for the appellant/plaintiff that the trial Court committed a serious error in directing recovery of the decreetal amount from the Principal Debtor at the first instance and in the event of non -recovery of the decreetal amount from him, to recover the same from the guarantors. It cannot be disputed that the liability of the Principal Debtor and the Guarantors is joint and several. Both are liable to discharge the liability jointly. The direction of the learned trial Judge that the recovery be first made from the defendant/respondent No.1 and in the event it is not recovered from him, the same be recovered from the defendants No.2 to 5, is certainly unjustified and unwarranted.