PARESH CHANDRA BANIK Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This first appeal arises out of judgment and decree dated 24.8.1996 and 28.8.1996 respectively passed by the learned Civil Judge, Senior Division, South Tripura Udaipur in Title Suit (Mortgage) No. 31 of 1992, decreeing the ^uit of the plaintiff-Bank passing a preliminary decree with cost. The appellant herein was impleaded as Defendant No. 2 in the suit, who was the guarantor in respect of the loan, availed by the Defendant No. 1. The Defendant No. 1 loanee who availed the loan from the Bank has not challenged the impugned judgment and decree which was passed exparte against him.

(2.) The case of the plaintiff-Bank is that on the prayer of the Defendant No. 1 Shri Subash Saha, the Bank sanctioned a loan for a sum of Rs. 1,44,900 in his favour for purchasing a truck and assessories for carrying out transport business, inter alia on condition that the Defendant loanee would repay the same on equal monthly installment of Rs. 5,500 and the first monthly installment to be paid to the Bank on 13.10.1981. It was further stipulated that the loan amount would carry interest at the rate of 15% per annum with quarterly rest. As a security for due repayment of the aforesaid loan the loanee/Defendant No. 1 executed necessary document in favour of the plaintiff Bank as per requirement of the Bank. The Defendant No. 2, who is the present appellant in this appeal stood as a guarantor for the Defendant No. 1 for due repayment of the loan with interest and executed necessary deed of guarantee on 13.7.1981, in case of default on the part of the Defendant No. 1, loanee, to repay the loan amount to the plaintiff- Bank. The Defendant No. 2 also executed an equitable mortgagee of landed property belonging to him, which is described in Schedule 'B' of the plaint in favour of the plaintiff. The loan amount was disbursed on 14.07.1981 and the Defendant No. 1 purchased a vehicle bearing registration No. TRL-2855, Model 1210-SE/42 Chassis No. 3440771 028446, Engine No. 692001109291 and hypothecated the said vehicle in favour of the plaintiff-Bank by executing a deed of hypothecation. The defendant defaulted in payment of the monthly installment and failed to repay the loan amount as per the terms and conditions of the sanction of the loan within the stipulated period in spite of repeated demands made by the plaintiff-Bank and accordingly as on 29.01.1991 the loan and interest accrued thereon stood at Rs. 2,67,646.40. In spite of demand made by the plaintiff-Bank by publishing notice in the local newspaper, defendant did not repay the Iqan amount. It was also within the knowledge of the Bank that the vehicle in question was in the custody of the Defendant No. 2 the present appellant. The Defendant No. 2 with a view to obtain clearance certificate under Motor Vehicles Act requested the Bank to issue a clearance certificate in his favour and for that purpose he also deposited some amount but he also failed to liquidate the entire outstanding dues of the plaintiff-Bank. It is the further case of the plaintiff that on 23.4.1990 the Defendant No. 2 informed the Bank that it is not possible on his part to take the vehicle repaying the huge outstanding amount of interest and in the said letter he admitted that he paid some amount to the plaintiff-Bank for getting the clearance certificate. Again on 16.4.1991 the Defendant No. 2 requested the plaintiff-Bank to transfer the loan account in his favour and also to provide a suitable reduction ofthe interest, which is against the terms of the loan. In the aforesaid premises, filing the said suit the plaintiff-Bank inter alia prayed for a decree against the defendants for realisation of the sum of Rs. 2,67, 646.40 with interest accrued thereon till repayment for a preliminary mortgage decree with costs and subsequent interest and in default, to pass a final decree in preliminary form for sale of the mortgaged properties for satisfaction of the decree.

(3.) The Defendant No. 2 contested the suit by filing written statement whereas the suit proceeded exparte against the Defendant No. 1, who preferred not to appear in spite of service of notice. In the written statement the Defendant No. 2 it is inter alia stated that the suit is bad for breach of contractual obligation by the plaintiff-Bank and it is not maintainable under the present form and also bad for non-joinder of necessary parties and hit by principles of waiver and acquiescence. In the said written statement the Defendant No. 2 admitted the fact of granting loan to the Defendant No. 1 but he pleaded that on the verbal assurance by the Branch Manager of the Bank, the defendant deposited some of amount towards the credit of the borrowers account to get a clearance certificate from the plaintiff-Bank to get necessary route permit to run the vehicle, but the plaintiff-Bank in defiance of their verbal assurance did not issue clearance certificate in favour of the Defendant No. 2 and, as a result of which he sustained huge loss. It was further pleaded that for breach of contract on the part of the plaintiff-Bank, the Defendant No. 2 could not get the route permit and for this reason he could not run the vehicle and as a result the defendant failed to liquidate the loan amount which stood outstanding in the name of the Defendant No. 1. It was further stated that he is ready to repay the outstanding balance standing the name of the Defendant No. 1 by monthly installment of Rs. 2,000 after the plaintiff-Bank issues the clearance certificate in respect of the said vehicle so that he gets the route permit to run the vehicle and in the aforesaid premises the Defendant No. 2 prayed for dismissal of the suit with cost.