Bombay High Court High Court

Sanjay Hunduroa Warake vs Branch Manager And Constituted on 8 September, 2009

Bombay High Court
Sanjay Hunduroa Warake vs Branch Manager And Constituted on 8 September, 2009
Bench: J. H. Bhatia
                           1


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                          
              CIVIL APPELLATE JURISDICTION




                                 
             FIRST APPEAL NO. 2088 OF 2008

     1.Sanjay Hunduroa Warake
       Age 34 yrs., Occ. Business,




                                
       Residing at 37, Nale Colony,
       Kalaamba Road, Kolhapur.
     2.Shri Murlidhar dattatraya Killedar,
       Age 44 yrs., Occ.Agrigulture,
       Residing at Majare Kasarwada,




                         
       Tal. Radhanagari,
       Dist. Kolhapur.
                
     3.Shri Hinduroa Marutroa Warake,
       Age 60 Yrs., Occ. --do--
       Residing at 37, Nale Colony,
               
       Kallamba Road, Kolhapur
     4.Anandroa Mahadev Warake,
       Dead through his legal heirs,
      

       4-A Smt.Bharati Anandroa Warake,
       Age 55 yrs., Occ.Household,
   



       Residing at Majare Kasarwada,
       Tal. Radhanagari, Dist.Kolhapur
       4-B Shri.Yuvaraj Anandroa Warake,
       Age 35 yrs, Occ. Agriculture,





       Residing at --do--
       4-C Sou. Namrata Ajit Patil,
       Age 35 yrs, Occ. Household,
       Residing at --do--
       4-D Rupali Anandroa Warake,





       Age 25 yrs, Occ. Housework,
       Residing at --do--
       4-E Savita Anandroa Warake,
       Age 23 yrs, Occ. Housework,
       Residing at --do--
       4-F Vidya Anandroa Warake,
       Age 21 yrs, Occ. Housework,
       Residing at do--
     5.Shrimati Banubai Yashawant Warake,




                                  ::: Downloaded on - 09/06/2013 14:59:22 :::
                                  2

        Age 50 yrs, Occ. Household,
        Residing at do--              ...Appellants




                                                                
        V/s.
    The Ganesh Bank of Kurundwad Ltd.,




                                        
    A Body Corporate constituted
    under the Companies Act, 1913,
    having it s head office at
    Kurundwad and one of its




                                       
    Branch Manager and constituted
    power of Attorney holder
    Shri Vijaykumar Bhanusaheb
    Yadav, Age 43 yrs.
    Occupation : Service,




                                
    Residing at 24   A,
    Yashwant Colony,
    Ichalkaranji,
    Tal. Hatkanangale,
    Dist. Kolhapur                    ...Respondent
                   
                           ....
    Mr.Siddharth R.Karpe i/by Rupesh Nalavade, for the
    appellantd.
    Mr.P.M.Arjunwadkar,Advocate, for respondent no.1.
      

                           ....
   



                            CORAM    : J.H.BHATIA,J.
                            DATE     : 8th September, 2009.

    ORAL JUDGMENT :





1.With consent of the learned counsel for the

parties, the appeal is taken for final hearing

and disposal. The appellant has filed the

compilation of the oral and documentary

evidence.

2.The appeal is preferred against the judgment

and decree passed by the Vth Ad-hoc Additional

::: Downloaded on – 09/06/2013 14:59:22 :::
3

District Judge, Kolhapur for recovery of money

in Spl. Suit No.60 of 1999. It is a case of

the plaintiff-respondent that it is scheduled

bank and the defendant-appellant no.1 Sanjay

had taken the loan of Rs.3,00,000/- for

purchase of bulldozer. The amount of the

loans was to carry interest at the rate of Rs.

     16%    p.a.     with
                    ig         quarterly     rests.          In     case        of

     failure       to     pay      installments,              the         penal
                  
     interest       of    1%   could    be     charged.           Defendant

nos.2 and 3 stood guarantors for repayment of

loan. Accordingly, defendant nos.1 to 3

executed the necessary documents in favour of

the bank on 25th April 1990. Defendant no.1 to

3 acknowledged the balance due on 7th January

1993 and again on 26th December 1995.

Defendant no.4 had also joined them in

acknowledging the liability. However, he died

pending the suit, therefore, his legal heirs

were brought on record. The suit was filed on

28th December 1998. It was contended that the

::: Downloaded on – 09/06/2013 14:59:22 :::
4

period of limitation on the basis of the last

acknowledgment had expired on 25th December

1998, when the Civil Court was closed due to

Winter vacation. Hence the suit was filed on

28th December 1998, that is the first day after

opening of the court after Winter Vacation and

therefore the suit was within the period of

limitation. At the time of filing of suit the

loan of Rs. 5,72,156/- was due from the

defendants. The charge was also crated on

certain agricultural properties bearing gut

nos.206, 249, 541 and 254 of village Kasarwada

belonging to defendant no.1. Defendant no.5

had purchased the land gut no. 206 from the

defendant no.1 in spite of the knowledge of

the charge on the said property.

3.Defendant no.1 contested the suit by filing

written statement. He denied to have made any

request for loan or to have executed any

document. He also contended that the suit is

barred by limitation. It was contended that

::: Downloaded on – 09/06/2013 14:59:22 :::
5

the plaintiff is a co-operative bank

registered under Maharashtra Cooperative

Societies Act and defendant no.1 is not a

shareholder of the plaintiff bank and

therefore without proper notice under section

164 of the Maharashtra Co-operative Society

Act, the suit could not be filed.

4.On the basis of the pleadings, several issues

are framed by the trial court at exhibit 16.

After hearing the parties, the trial court

held that defendant no.1 had taken the loan

and defendant nos.2 & 3 had guaranteed to

repay the same. The trial court also found

that the suit was within a period of

limitation. The trial court passed the decree

directing defendant no.1 to 3 to pay the

decretal amount of Rs.5,72,156/- jointly with

a future interest of Rs.16 p.a. from the date

of filing of suit till realization of the

amount. The said judgment and decree are

challenged in the present appeal.

::: Downloaded on – 09/06/2013 14:59:22 :::
6

5.Heard the learned counsel for the parties.

Following two points are pressed in the

present appeal. Firstly, as to whether the

suit was barred by limitation and secondly,

whether the future interest granted by the

trial court at the rate of Rs.16 p.a. is

justified.

     6.The record       reveals
                       ig             that       on      behalf           of      the

       plaintiff/appellant,                two        witnesses                 were
                     

examined to prove all the documents and the

acknowledgments which were executed by

defendant nos.1 to 3 from time to time. The

witnesses were not even cross-examined on

behalf of defendants. Defendants did not

enter into witnesses box to depose on oath

that those documents were not executed by

them. In view of this, the trial court

rightly came to the conclusion that defendant

no.1 had taken loan of Rs.3,00,000/- for

purchasing bulldozer and defendant nos.2 & 3

had guaranteed the repayment of the loan.

::: Downloaded on – 09/06/2013 14:59:22 :::
7

Accordingly, they had executed necessary

document in favour of the plaintiff-bank. From

the facts and the evidence on record, it is

clear that the loan was taken on 25th April

1990 and the amount was to be repaid within

three years in quarterly installments of Rs.


     60,000/-.       The        loan     amount         was        to       carry




                                  
     interest       at
                    ig    the    rate     of   16%       p.a.           If      the

installments were not paid on the stipulated

dates, the bank could charge penal interest of

1% p.a. The record reveals that defendant

nos.1 to 3 had acknowledged liability on 17th

April 1993 by executing letter of

acknowledgment of the of debts and dues. As

this acknowledgment was made before the expiry

of the three yeas from the date of loan, the

fresh period of limitation would begin to run

from 7th January 1993. Thereafter on 26th

December 1995, they executed letter of

acknowledgment of debts and dues. This

acknowledgment was also within the period of

::: Downloaded on – 09/06/2013 14:59:22 :::
8

three years, from earlier date of

acknowledgment and therefore, fresh period of

limitation would begin to run on 26th December

1995. The period of limitation came to and

end on 26th December 1998. The plaintiff-bank

has explained that on the last day of the

period of limitation, suit could not be filed

because, the Civil Court was closed due to

Winter Vacation and on opening of the Courts

after vacation immediately on 28th December

1998, suit was filed. Thus, it is clearly

within limitation.

7.Taking into consideration, the oral and

documentary evidence lead by the bank it is

difficult to find any fault in the findings of

that the trial court that defendant nos.1 to 3

were liable to repay the loan amount.

8.The next question is about the interest. The

trial court held that as per the agreement

between the parties, the interest was to be

paid @ 16% p.a. with quarterly rests and

::: Downloaded on – 09/06/2013 14:59:22 :::
9

accordingly, the amount claimed by the bank

was found to be Rs.5,72,156/- at the time of

filing the suit. Now that amount becomes

principal for the purpose of future interest

and therefore, the trial court has also

granted future interest at the rate of Rs.16%

p.a. on the decretal amount. The learned

counsel for the appellant contends that this

rate of interest is very heavy. Taking into

consideration, the rates of interest in the

market, judicial notice can be taken that in

the year 1994, when loan was advanced the

interest rates on deposits and loan were

really high and therefore it was fixed at the

rate of 16% p.a.. The rates of interests

continued to be high up to 1999. Thereafter,

from the year 2000 and particularly from the

year 2001, the rates of interest have

substantially come down. Prior to 2001, on the

fixed deposits the nationalized banks used to

give interest @ 10% to 11 % p.a., but now the

::: Downloaded on – 09/06/2013 14:59:22 :::
10

rates have come down to about 5% to 6% p.a. On

the National Savings Certificates the interest

used to be 12% p.a. but now it has come down

to about 8% p.a. It is material to note that

the loan was taken to purchase bulldozer as an

agricultural equipment. It is possible that

said bulldozer could not have been used by the

defendant-appellant
ig only for his own

agricultural works and possibly he was using

it for other business also but it appears that

the loan was advanced to purchase the

bulldozer as an agricultural equipment.

Anyhow, taking into consideration, overall

reduction in rates of interest on loan, in my

considered opinion, the future interest could

not be more than 10% per annum. Therefore, to

that extent, the appeal deserves to be

allowed.

9.For the aforesaid reasons, the appeal is

partly allowed only in respect of the future

interest and it is hereby directed that

::: Downloaded on – 09/06/2013 14:59:22 :::
11

defendant nos.1 to 3 shall jointly pay the

decretal amount of Rs.5,72,156/- with future

interest at the rate of Rs.10% p.a.from the

date of the institution of the suit till

realization of the amount. Remaining part of

the decree is confirmed. Parties shall bear

their own costs in the appeal.

(J.H.BHATIA,J.)

::: Downloaded on – 09/06/2013 14:59:22 :::