BANSIDHAR MOHANTY Vs. UNITED BANK OF INDIA

JUDGEMENT

(1.) The third defendant in T. M.S. 265 of 1969 in the Court of the Subordinate Judge of Cuttack is the petitioner. Plaintiff-opposite party No. 1 has filed the suit asking for recovery of a sum of Rs. 10,86,331.01 paise from defendants 1, 2 and 4 on the basis of a cash credit and/or overdraft facility under which the defendant No. 1-Company had been allowed to draw money from the bank. Initially the limit was for Rs. 3 lakhs which from time to time was extended and in June, 1969, the limit was fixed at Rs. 10 lakhs. While the defendant No. 1Company, defendants 2 and 4 are two of its directors who according to the plaintiff had made themselves liable for the entire loan. Plaintiff also prayed for a decree up to Rs. 9 lakhs within the aforesaid amount against defendants 3 and 5--being two other directors of the defendant No.1-Company on the basis of guarantees.

(2.) Three separate written statements were filed one by defendant No. 2, another by defendants 3 and 5 together and the third one by defendant No. 4. The plaint was amended and paras 59-A and 59-B were new allegations made. Defendants 2 and 3 filed two separate additional written statements with reference to the amended plaint. In these two paragraphs, plaintiff pleaded thus:--

(3.) Before the learned Subordinate Judge it had been made clear on behalf of the defendants that it was not a case of set-off or counter claim, but a clear case of adjustment of the value of the difference in the stock indicated in the original plaint and the amended one. It was maintained that the necessity to raise such a claim arose on account of the changed stand of the plaintiff. In Schedule DD of the original plaint at page 37 of the suit record the total weight was disclosed to be 532.575 tons. During the pendency of the suit, there was a direction for sale of the same. In the amended plaint, the plaintiff made an addition to the following effect: