ASHOK Vs. BANK OF INDIA

JUDGEMENT

(1.) ONE of the defendants filed the present appeal against the order dated 14. 9. 2004 passed by the IInd A. D. J. , Indore in M. J. C. No. 46/2002, rejecting the application filed by the appellant under Order 9 Rule 13 of the Civil Procedure Code for setting aside ex parte judgment and decree dated 25. 10. 1996 passed in Civil Original Suit No. 47-A/1996.

(2.) THE respondent No. 1 Bank of India (hereinafter called as the Bank) filed a suit against the appellant, his brother and two other defendants for recovery of money of Rs. 5,44,342,12 with 22. 5% interest from the date of filing of the suit up to execution of the decree. The Bank pleaded that it granted a cash credit (hypothecation) loan to a proprietary firm of Rs. 2,40,000 and gave initial advance of Rs. 30,000 on 8. 7. 1983. The appellant was one of the guarantors of the loan and mortgaged his property, a house in favour of the Bank on 4. 6. 1987. The Bank in para 9 of the plant under the head 'plaintiff's claim' submitted that on 29. 6. 1992 Rs. 3,04,338. 87 were due in cash credit account out of which Rs. 2,24,159. 70 were the interest from 1. 7. 1989, from the above pleadings it is not clear that how much amount was due on account of principal and interest @ 22. 5% from the date of filing of the suit up to execution of decree on whole amount Rs. 5,44,342. 12 including interest.

(3.) THE suit was filed by the Bank on 29. 6. 1992 and on 2. 7. 1992 an order was passed sending summons to the defendants, it could not be served to the defendant/appellant, hence on 4. 11. 1992 the Judge ordered again payment of process by registered post as well as ordinary post. On 5. 10. 1993 acknowledgement of registered A. D. , sent to the appellant received by the Court. The appellant did not present on the date i. e. 16. 12. 1983, hence ex pane proceedings were ordered against him by the Court by observing that in spite of service of summon nobody including the defendant was present on the date fixed for hearing of the suit.