SODHANLAL AGARWALLA Vs. UCO BANK

JUDGEMENT

(1.) This appeal has been filed by defendant No. 1 the Principal-Debtor against the judgment and decree of the trial Court decreeing the suit of the plaintiff bank for a sum of Rs.31,609.74 paise with interest @ 11.85% per annum from 11.1.1982 uptill the date of filing of the suit and @ 6% per annum from the date of decree till realisation of the decreetal amount. It deserves to be noticed at this stage that the decree of the trial Court has not been challenged by the guarantor who was arrayed as defendant No. 2 in the main suit.

(2.) The plaintiff-bank who is respondent No. 1 in this appeal filed the suit for recovery of outstanding unpaid loan amount with the averments that defendant No. 1 being a Road Transport Operator applied for loan to the plaintiff-bank on 9.1.82 for purchase of a second hand Ford truck. Defendant No. 2 being a business man stood as guarantor for defendant No. 1. The loan amount of Rs.2,05,000.00 was sanctioned on 11.1.1982 to enable the defendant No. 1 to purchase the second hand Ford truck. It was further averred that the defendant Nos. 1 and 2 executed a Memorandum of Agreement with the plaintiff-bank showing therein that the defendant No. 1 was borrower whereas defendant No. 2 was guarantor for defendant No. 1. It was agreed to hypothecate the vehicle with the plaintiff- bank by way of first charge in favour of the plaintiff bank. It was agreed to repay the amount with interest @11.85% per annum in 48 equated monthly instalments.

(3.) It is the further case of the plaintiff- bank that the defendant No. 1 did purchase the truck from one Tapas Kumar Ghosh of Dhubri town on 11.1.1982 and got this vehicle transferred in his name under hire purchase agreement with the plaintiff-bank. Since defendant No. 1 failed to repay the instalments in accordance with the terms of agreement, demand notices were issued. In view of failure of the defendant No. 1, loan was recalled and the suit was filed. Defendant No. 1 contested the suit on the broad pleas that he did not know English language and that all the documents were prepared by the Manager which were signed by him without being explained the contents thereof. It was further averred by defendant No. 1 that the suit was not maintainable and the same was barred by time. It was also stated by defendant No. 1 that he did not apply for loan for a second hand ford Truck and that the loan was taken for purchase of a new vehicle and further that the price of the 2nd hand Ford Truck was not Rs.2,75,000.00. Tapash Ch. Ghosh was described by the defendant to a friend of the Branch Manager of the bank and it was with a view to save said Tapash Ghosh that second hand ford truck was thrust upon on the defendant No. 1. It was further averred that from the very beginning the truck started giving trouble.