High Court · 2009

The respondent, as plaintiff instituted the aforesaid suit for realizati on of an amount of Rs.1,00,557.48P with interest, contending inter alia that on an approach being made by the appellant/defendant, a cash-credit accommodation t o the limit of rupees one lakh was extended to him, for which a demand promissor y note dated 3 May 1990 and an agreement dated 3 May 1990 had been executed, sti pulating repayment of the amount, with interest at the rate of seventeen percent per annum. It has been contended in the plaint that an equitable mortgage had a lso been created by depositing the Title deeds as security. It is also the case of the plaintiff that though the defendant had availed the loan of rupees one la kh, he had not repaid the entire amount in terms of the agreement between the pa rties, despite acknowledgement and confirmation of debts in writing from time to time, for which a demand notice dated 13 May 1994 had been issued demanding pay ment of the Rs.91, 660.48paise with interest calculated up-to 31 December 1993, which having not been paid, the suit has been instituted for realization of the aforesaid amount. The appellant/defendant entered appearance, on receipt of summons, and f iled written statement taking the plea that there is no cause of action for fili ng the suit, the suit is not maintainable and the suit is barred by the law of l imitation. The issuance and service of demand notice has also not been denied in the written statement. The claim that an amount of Rs.91, 660.48paise with inte rest as on 31 December 1993 was due & payable has been denied in written stateme nt. The defendant, however, has admitted the sanction of the loan amount of rupe es one lakh, creation of the equitable mortgage to secure the loan advanced. Acc ording to the defendant, a further amount of rupees fifty thousand was invested in a fixed deposit account on 3 May 1990, that is the date when the loan agreeme nt was executed, which ought to have been adjusted against the amount due and pa yable in the loan account. It is also the case of the defendant that he deposite d an amount of rupees thirty-nine thousand, the receipt of which having been los t could not be produced. According to the defendant, an amount of Rs.69,000/-(Ru pees sixty nine thousand) only is, therefore, due and payable to the plaintiff. On the basis of pleadings of the parties, the following issues were fram ed for consideration and decision: (cid:28)1) 2) Is there any cause of action for the suit? Whether the defendant took loan of Rs.1,00,000/-(Rupees one lakh ) only from the plaintiff. r? 3) 4) Whether the plaintiff is entitled to get the decree as prayed fo To what relief, if any, is the plaintiff entitled? Learned trial Court, upon appreciation of the evidences on record, has decreed t he suit of the plaintiff with interest at the rate of twelve percent per annum w ith quarterly rest under Section 34 of Code of Civil Procedure. Being aggrieved, the appellant/defendant preferred the aforesaid Title A ppeal which has been dismissed by the learned first appellate Court by affirming the judgment and decree passed by the learned trial Court, however, with modifi cation of the interests payable under Section 34 of CPC. The learned first appel late Court has held that the plaintiff would be entitled interest at the rate of six percent per annum, and not at the rate of 12% p.a.. Hence, the present appe al. I have heard Mr TU Laskar, learned counsel for the appellant. It has been contended by learned counsel for appellant that the learned Court be low ought not to have decreed the suit of the plaintiff for Rs.1,00,557/-(Rupees one lakh fifty five thousand and seven) with interest at the rate of 6% p.a. fr om the date of filing of the suit till realization, as the plaintiff had paid a sum of Rs.39,000/-(Rupees thirty nine thousand) as against the loan amount of ru pees one lakh. Learned counsel further submits that to secure repayment of loan amount, a sum of Rs.50,000/-(Rupees fifty thousand) only was invested in a fixed deposit account as security, that ought to have been adjusted by the respondent bank, which has not been done in the instant case. Learned counsel, therefore, submits that the appeal may be admitted for hearing. I have considered the submissions of learned counsel for the appellant a nd also perused the judgments and decrees passed by the learned Courts below. It appears from the judgments and decrees passed by the learned Courts b elow that the defendant did not dispute taking the loan to the tune of rupees on e lakh and execution of the demand promissory note as well as the agreement. The acknowledgement of debts from time to time has also not been disputed by defend ant. What was contended by the defendant is that out of the loan amount of rupee s one lakh, he has paid rupees thirty nine thousand only, leaving a balance of r upees sixty nine thousand only. It is also the contention of the defendant that an amount of rupees fifty thousand deposited in a fixed deposit account as secur ity has not been adjusted by the respondent bank. The judgments and decrees passed by learned Courts reveal that the amoun t of rupees fifty thousand invested in a fixed deposit account was adjusted agai nst the dues payable by the defendant to the plaintiff bank. The plaintiff bank has also proved the statement-of-accounts as required under Banker’s Book Evide nce Act. The learned Courts below having accepted the statement-of-accounts, as p roduced and proved by the plaintiff bank, has negated the contention of the defe ndant. The question raised by learned counsel for appellant in present appeal i s a question of fact, which has been concluded by the concurrent finding. It has not been contended that such finding relating to the question of fact is perver se, being not based on evidences on record, or improper appreciation of the evid ence. That being the position, I am of the view that no substantial question o f law is involved in the present appeal and hence it is dismissed. The appeal accordingly stands dismissed. No costs.