SYNDICATE BANK Vs. RADHANATH JENA

JUDGEMENT

(1.) THIS is an appeal by the unsuccessful plaintiff against the judgment and decree passed by the learned Civil Judge (Senior Division), Jagatsinghpur in M.S. No. 143 of 1992.

(2.) PLAINTIFF is a Nationalized Bank. Defendant No. 1 applied to the plaintiff -Bank for a loan of Rs. 1,65,000/ - for purchase of a Tata Truck. The plaintiff -Bank after considering the said application sanctioned the loan. Defendant No. 2 stood as a guarantor for that loan. Pursuant to the sanction of loan, both the defendants jointly executed a deed of agreement making them jointly and severally liable for repayment of the loan with interest. It was agreed that the loan would be repaid by monthly, instalments of Rs. 3,900/ - commencing from 1.12.1984. Defendant No. 1 defaulted in repayment of the loan in spite of demands by the officials of the plaintiff -Bank and a sum of Rs. 1,91,756.40 remained outstanding. Since this amount was not paid in spite of advocate's notice served by the plaintiff -Bank, suit was filed for recovery that amount along with pendentilite and future interest at the rate of 17.75% per annum. Prayer was also made for attachment and sale of Tata Truck bearing registration No. OAC -5261, which was under hypothecation with the plaintiff -Bank, as well as movable and immovable properties belonging to the defendants. Defendant No. 1 filed written statement, but did not contest the suit and was finally set ex parte. The present respondent No. 2, as defendant No. 2, filed written statement assailing the claim of the plaintiff and raising a counter claim for recovery of Rs.2 lakhs from the plaintiff -Bank. The specific case of the defendant No. 2 was that he no doubt stood as guarantor for the loan of defendant No. 1, but he had no liability for repayment of the loan until all the process against defendant No. 1 and his properties and the hypothecated truck had been exhausted. He also pleaded that he had, deposited Rs. 50,000/ - with the plaintiff -Bank vide Vikas Cash Certificate No. 593690/88 on 28.9.1984 and the deposit was renewable after every six years. According to him, his certificate maturity amount had already become Rs. 2 lacs by 1.8.1995, but the plaintiff -Bank refused to release this amount on the plea that the maturity amount of Vikas Cash Certificate had already been adjusted in August, 1989 towards repayment of the loan of defendant No. 1. Defendant No. 2 specifically pleaded that the plaintiff -Bank had no authority to appropriate his Vikas Cash Certificate amount and therefore, decree be passed directing the plajntiff Bank to pay Rs. 2 lacs to him.

(3.) THE plaintiff examined its Assistant Manager as the sole witness and produced the documents, such as, loan application of defendant No. 1, sanction letter of that loan, deed of agreement executed by the defendants, money receipt, acknowledgement of debts given by defendants, true copy of the statement of accounts of the loan, letters of security given by defendant Nos. 1 and 2, which were marked as Exts. 1 to 9 respectively. Defendant No. 2 examined himself as only witness in support of his case. He did not produce any document. On consideration of the evidence led by the parties, learned trial Court decreed the claim of the plaintiff, but at the same time also decreed the counter claim of defendant No. 2 for recovery of Rs. 2 lakhs from the plaintiff -Bank. The plaintiff -Bank has challenged that decree of counter claim in this appeal.