UNITED COMMERCIAL BANK Vs. KUYA COLLIERIES (P LTD

JUDGEMENT

(1.) THIS appeal has been preferred by the plaintiff -appellant against the judgment and decree dated 23 -12 -1987 passed by the then Subordiante Judge, Vth Court, Dhanbad in Money Suit No. 124/50 of 1976/87.

(2.) THE plaintiff -appellant is a Government undertaking banking company having its branch office at Jharia, P.S. -Jharia, District -Dhanbad. As per the plaint, the defendant -respondent No. 1 through its Director, defendant Nos. 2 and 3 approached the plaintiff -Banking company for cash credit facility up to the limit of Rs. two lakhs. Plaintiff -Banking company sanctioned the same. The cash credit account was opened up and the defendant No. 1 agreed to pay interest at the rate of 5% per annum above the Reserve Bank of India rate subject to the minimum rate of interest of 10% per annum. The defendant Nos. 2 and 3 on behalf of the defendant No. 1 agreed to the personal guarantee for the payment of the said advance. As per rules of the Banking company the defendant Nos. 2 and 3 for and on behalf of the defendant No. 1 executed a promissory note on 16 -5 -1970 in favour of the plaintiff -Bank for a sum of Rs. 1,33,OOO/ - payable on demand with interest at the rate mentioned above. The defendants had also hypothecated all the goods by way of security and defendant Nos, 2 and 3 personally .remained the guarantor for the payment of the loan advanced by the plaintiff to the defendant No. 1 -colliery. Some other documents as per Banking rules as letter of continuity etc. were also executed by defendant Nos. 2 and 3 for and on behalf of the defendant No. 1 in favour of the plaintiff. The interest accrued on the amount and on 30 -6 -1972 the defendant No. 1 duly confirmed the balance due amounting to Rs. 1,97,017.91 p. The loan was taken by the defendant No. 1 for the development of Coal Mines and benefit of the said Colliery. It is submitted that the Coal Mines of the defendant No. 1 was nationalised as per provisions of coal Mines Nationalisation Act and the account of defendant No. 1 was frozen after the implementation of the vesting to the Central Government. According to the plaintiff -Bank upto 30. -11 -1976 the amount of Rs. 3,13,894.9 ps. remained outstanding to the Bank and the defendant Nos. 2 and 3 who were the guarantors of defendant No. 1 failed to repay money and hence the suit has been filed for recovery of the amount with interest future and pendents lite,

(3.) ON appearance, the defendant filed written statement separately, but cases were almost the same. According to them, the suit was not maintainable. The plaintiff had no valid cause of action or right to sue. The suit is barred under the provisions of T.P. Act and that the Civil Court has got no jurisdiction after coming of the Coal Mines Nationalisation Act(hereinafter referred to as the Act). As per provisions of the Act, the same claims were preferred by the Banking authorities before the Assistant Commissioner of Payment and by his order and judgment dated 1 -3 -1978 decided the claim and allowed the claim of the plaintiff upto Rs. 1,84,813.13 ps. by calculating the interest on the principal amount upto 1 -5 -1973 when vesting took place as per the Nationalisation Act. As per that decree of the Assistant Commissioner of Payment, a cheque was issued in favour of the plaintiff -Bank and they have received the same without any objection. It is further stated that in view of such position when the same has already been adjudicated by Assistant Commissioner of Payment, further adjudication on the matter before the Civil Court is not maintainable and when receipt of payment has been made by the Bank without any objection, the suit is not maintainable. The defendant Nos. 2 and 3 had also pleaded the same pleas as per defendant No. 1 in their separate written statements.