SHIV KUMAR AND OTHERS Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) This first appeal arises out of judgment referred to above, whereby the learned trial Court decreed the suit filed by the Punjab National Bank, Nangal Chaudhary Branch District Mahendragarh (for short "the plaintiff - Bank") against the defendants appellants.

(2.) The facts, briefly stated, relevant to this appeal are that the plaintiff Bank filed the aforesaid suit against the defendants appellants for recovery of a sum of Rs.' l,08,816.25p. and interest thereon, on the averments that Late Hajarilal father of the defendants appellants was granted a loan to the tune of Rs. 72,660.00 for the purchase of a tractor on 31.7.1980 on the guarantee of defendant No. 10 (Bahadur Singh) at the agreed rate of interest @10.5% per annum, provided that six monthly instalment of Rs. 5190.00 plus interest shall Against judgment & decree dated 1.5.98 passed by Shri Abdul Hafiz Khan, RHJS, ADJ Kotputli (Jaipur District) in Civil Suit No. 93/92 be paid as against repayment of loan amount by Hajarilal regularly, failing which penal interest would be charged. Hajarilal agreed to the terms and conditions of the loan and pursuant thereto, requisite deeds and papers were executed by him with the Bank, especially the mortgage and hypothecation besides guarantee deed, and accordingly Hajarilal purchased tractor bearing registration No. RRB 749. By way of collateral security, an agricultural land measuring 26 bighas and 8 biswas situated in village Badabas Tehsil Kotputli belonging to Hajarilal was also mortgaged with the plaintiff Bank on 18.8.1980. Thereafter Hajarilal continued to make repayment of the loan by way of six monthly instalments till he died in Feb., 1983. After the death of Hajarilal, defendant No. 2 Ramesh Chand Kaushik admitted the liability and confirmed the outstanding repayment of loan amount on 8.10.1983 and 24.9.1985. The defendant No. 10 stood guarantor to Hajarilal for the loan amount. In para 12 of the plaint, it has been averred by the plaintiff Bank that defendant No. 2 made acknowledgement of the liability towards outstanding loan amount on 30.6.1983 and the defendant Nos. 1, 3 to 9 were impleaded as defendants for the reason that they were sons and legal heirs of deceased Hajarilal (borrower). The suit was filed on 31.1.1986 initially before the District Judge Jaipur District and on the establishment of the new court of Additional District Judge at Kotputli, the said suit stood transferred to the new court.

(3.) Upon notice to the defendants to the spit having been served, defendant No. 2 only filed written statement to the plaint and no other defendants contested the suit thereby order to proceed ex-parte against them was passed by the learned trial court. In written statement, defendant No. 2 denied to be conversant with the terms & conditions of the contract of loan of Hajarilal but contended that in fact loan for principal amount of Rs. 72,660.00was taken by his father Hajarilal, out of which Rs. 32,000.00 was repaid to the plaintiff Bank upto Aug., 1984, therefore, according to him, Rs. 40,660.00towards principal loan amount remained as outstanding and uptil filing of the suit, only Rs. 32000.00 could at the most be outstanding as against interest, it has also been contended in written statement that the plaintiff Bank had wrongly claimed a sum of Rs. 1,08,816.25p. and, therefore, he (defendant No. 2) wrote a letter on 6.6.86 to the plaintiff Bank as to his willingness to make repayment of the outstanding loan amount of his father Hajarilal provided he is permitted to sell the hypothecated tractor, but this permission to sale of the tractor was not granted so the defendants are not liable to the payment of interest since June, 1986 nor any penal interest was agreed to be paid and the plaintiff Bank was just entitled to the maximum interest @ 10.5% p.a. on the remaining principal amount of Rs. 40,660.00.