{"id":158794,"date":"2002-01-23T00:00:00","date_gmt":"2002-01-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bank-of-baroda-vs-navratan-trading-co-pvt-ltd-and-on-23-january-2002"},"modified":"2017-12-28T17:53:28","modified_gmt":"2017-12-28T12:23:28","slug":"bank-of-baroda-vs-navratan-trading-co-pvt-ltd-and-on-23-january-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bank-of-baroda-vs-navratan-trading-co-pvt-ltd-and-on-23-january-2002","title":{"rendered":"Bank Of Baroda vs Navratan Trading Co. Pvt. Ltd. And … on 23 January, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Bank Of Baroda vs Navratan Trading Co. Pvt. Ltd. And … on 23 January, 2002<\/div>\n
Equivalent citations: 2002 VAD Delhi 16, 96 (2002) DLT 889, 2002 (65) DRJ 113<\/div>\n
Author: M Sharma<\/div>\n
Bench: M Sharma<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Mukundakam Sharma, J.  <\/p>\n
 1. This is a suit filed by the plaintiff
\nseeking for a decree for recovery of an amount of
\nRs. 2,04,303.59 with interest and costs.\n<\/p>\n
 2. The plaintiff is a schedule bank
\nconstituted under the Banking Companies
\n(Acquisition and Transfer of Undertakings) Act.
\nThe defendant No. 1 is a Private Limited Company
\nregistered under the Companies Act and the
\ndefendants 2 & 3 at the relevant time were the
\nDirectors of the first defendant along with
\ndefendant No. 4. In or about April, 1976,
\ndefendants 2 to 4, on behalf of defendant No. 1,
\napproached the plaintiff bank for grant of
\nfinancial facilities. On 5.5.1976, after the
\ndefendants had signed and executed a Demand
\nPromissory Note for Rs. One lakh, an agreement of
\nhypothecation of goods and other relevant documents
\nwere executed between the plaintiff bank and the
\ndefendants.\n<\/p>\n
 The plaintiff bank granted to the
\ndefendants Packing Credit Limit of Rs. One lakh.
\nSubsequently, the defendants approached the
\nplaintiff bank for extension and\/or renewal of the
\nsame including an increase of the facilities from
\nRs. One lakh to Rs. Two lakhs and upon defendants’
\nexecuting the Demand Promissory Note and other
\nrelevant documents like Letter of Continuing
\nSecurity and Hypothecation of Goods, a Deed of
\nGuarantee, guaranteeing due re-payment of the
\nfacilities, the plaintiff bank increased the
\nfacilities to Rs. Two lakhs some time in July, 1977.
\nThe said increased facilities were duly guaranteed
\nby the defendants 2 to 4., who undertook to clear
\nthe same in case of any default by defendant No. 1.
\nHowever, although the said facilities were utilised
\nby the defendants, the amounts taken on loan were
\nnot re-paid and on 6.10.1978, defendant No. 2<\/span>
\naddressed a letter to the plaintiff bank informing
\nthe plaintiff that he was withdrawing his
\nguarantee. The said defendant was informed by the
\nplaintiff that eh could not withdraw the guarantee
\nat his own and that he could withdraw the same on
\npayment of the entire dues of the defendant No. 1.
\nBy letter dt. 14.12.1979, the plaintiff called upon
\nthe defendants to clear the account, failing which
\nlegal action would be taken but since the aforesaid
\namount was not re-paid, the aforesaid suit was
\nfiled seeking for the aforesaid relies.\n<\/p>\n
 3. The aforesaid suit was contested by the
\ndefendants, who filed their written statement and
\non the basis of the pleadings of the parties,
\nfollowing issues were framed in the suit:-\n<\/p>\n
 1. What is the amount due under the hypothecation
\nof goods account which defendant No. 1 opened
\nwith the plaintiff bank?\n<\/p>\n
 2. Was the guarantee extended by defendants 2 to 4
\nfor payment of the amount due under the said
\naccount subsisting on the date of the
\ninstitution on the suit?\n<\/p>\n
 3. Is the suit barred by time?\n<\/p>\n
4. Has this Court no jurisdiction to try this suit?\n<\/p>\n
5. Relief.\n<\/p>\n
 4. During, the pendency of the suit, defendant No. 2
\ndied and his legal representatives were brought on
\nrecord. In view of addition of the legal representative
\nof decreased defendant No. 2, an additional issue was also
\nframed in the suit by an order dt. 27.10.88 to the
\nfollowing effect:-\n<\/p>\n
  “Whether the L.Rs. of defendant No. 2 are not
\npersonally liable of the amount claimed in the
\nsuit”?\n<\/p>\n
 5. The suit proceeded ex parte as against defendant
\nNo. 4 and defendant No. 1 whereas legal representatives of
\ndefendant No. 2 and the defendant No. 3 were represented by
\ntheir counsel. On behalf of the plaintiff two witnesses
\nwere examined whereas defendant No. 3 examined himself.
\nNo other witness was examined by the parties. After oral
\nand documentary evidence were received, the suit was
\nlisted for final hearing and in that process I heard the
\nlearned counsel for the plaintiff as also the counsel
\nappearing for the substituted defendant No. 2 and
\ndefendant No. 3.\n<\/p>\n
 ISSUE NO.1.\n<\/p>\n
In their deposition, the witnesses produced on
\nbehalf of the plaintiff have stated that in or about
\nApril, 1976 the defendant No. 1 granted packing credit
\nfacility on execution of the documents like Demand
\nPromissory Note and Letter of Continuing Security both
\ndt. 5.5.1976 Ex. PW-1\/2 and Ex.PW-1\/3. It is stated by
\nthem that the said facility was duly availed of. The
\nletter dt. 2.4.1977, by which defendant No. 1 requested for
\nenhancement of the credit facility is also exhibited as
\nEx. PW-1\/4. The aforesaid facility of enhancement of
\ncredit facility to Rs. Two lakhs was also granted in
\nfavor of defendant No. 1 upon defendant No. 2 executing
\nDemand Promissory Note, Ex.PW-1\/6, Agreement of
\nHypothecation of Goods, Ex.PW-1\/7 both dt. 29.7.1977. The
\nDemand Promissory Note Ex.PW-1\/6 was also signed by
\ndefendants 2 & 3. It is stated by the aforesaid
\nwitnesses produced on behalf of the plaintiff that
\npersonal guarantees were also executed by defendants 2 &
\n3 but the same have been misplaced and, therefore, the
\nsame could not be exhibited in the suit. However, some
\ncontemporaneous documents have been placed on record by
\nthe plaintiff’s witnesses marked as Ex.P-8, Ex. PW-2\/1 and
\nEx.PW-2\/2. Ex.P-8 is a letter dt. 6.10.1978 written by
\nthe defendant No. 2 wherein the said defendant had stated
\nthat he had asked for credit facilities for production
\nand export of leather garments and leather articles from
\nthe leather unit of defendant No. 1 and that he signed the
\ndocuments as guarantor for the said credit facilities
\nup to Rs. One lakh. He also stated that he was
\nco-guarantor with Dr. J.Joshi. By the aforesaid letter
\nthe said defendant No. 2 sought to withdraw his guarantee
\nand requested the plaintiff bank to treat that there is
\nonly one guarantor, namely, Dr. J.Joshi for the facilities
\nextended to their business. By letter dt. 25.11.1978, the
\nplaintiff bank informed the defendant No. 2 that the
\nlimits were sanctioned to the defendant No. 1 in addition
\nto other securities on the personal guarantee of
\ndefendant NO. 3 and defendant No. 2. He was also informed
\nthat the debit balance in the aforesaid account as of
\ndate i.e. on 25.11.1978 was Rs. 1,49,772.34 and he was
\ninformed that if he was interested in withdrawing the
\nsaid guarantee, he is to re-pay the aforesaid amount
\nimmediately to liquidate the accounts. Subsequently,
\nanother letter of similar nature was issued by the
\nplaintiff bank to the defendant No. 2, which is
\ndt. 19.12.1978 exhibited as Ex.PW-2\/2. the personal
\nguarantee executed by defendant NO. 4 is proved as
\nEx.PW-1\/8. It was stated by the aforesaid two witnesses
\nexamined on behalf of the plaintiff that the aforesaid
\nfacilities were availed and continued to be enjoyed by
\nthe defendants and the outstandings in the said account
\nwere demanded by the plaintiff bank vide two letters i.e.
\nletter dt. 14.12.1979, Ex.P-2\/9 and Ex.PW-2\/10. The
\nplaintiff bank also proved the statement of account as
\nEx.PW-2\/11, which indicates that the outstanding amount
\nwas Rs. 2,01,031.99 as on 25.6.1980. In addition to the
\nsaid amount, interest was also claimed on the outstanding
\namount from 26.6.1980 to 28.7.1980 and the suit was filed
\nclaiming payment of an amount of Rs. 2,04,303.59.\n<\/p>\n
 6. The aforesaid documents placed on record through
\nthe evidence of PW-1 and PW-2 clearly establish that a
\nsum of Rs. 2,04,303.59 was due and payable under the
\ncredit facilities and, therefore, the Issue No. 1 is
\nanswered in favor of the plaintiff and against the
\ndefendants.\n<\/p>\n
  ISSUE NO. 2.\n<\/p>\n
7. Now, I proceed to decide Issue No. 2 as framed in
\nthe present suit. Guarantee of defendant No. 4 is
\ndt. 29.7.1977, which is exhibited as Ex.PW-1\/8 and is
\nproved. Although it is stated that both defendants 2 & 3
\nalso executed their personal guarantees on the same terms
\nand conditions, the same, however, were not traceable
\nand, therefore, could not be proved in the suit.
\nHowever, the document exhibited as Ex.P-8, proves and
\nestablishes that personal guarantee was executed. The
\nsaid letter Ex.P-8, is dated 6.10.1978 by which the
\ndefendant No. 2 intended to withdraw his personal
\nguarantee. the two letters written by the bank on
\n25.11.1978 and 19.12.1978 also prove that the bank asked
\nthe defendant No. 1 to deposit a sum of Rs. 1,49,772.34 as
\nwas due then, as a condition to withdraw the guarantee.
\nThe said evidence and the aforesaid documents were not
\nchallenged in the cross-examination and therefore, there
\nis no denial to the said facts. The aforesaid documents
\nare, therefore, admitted documents and the same establish
\nthat defendant 2 to 4 gave personal guarantee for due
\npayment of the loan amount. The guarantee was executed
\non 29.4.77 and the suit was filed on 28.7.1980 and thus
\nthe guarantees of defendants 2 to 4 were subsisting on
\nthe date of filing of the suit.\n<\/p>\n
  ISSUE NO. 3.\n<\/p>\n
8. With the decision on the aforesaid two issues, I
\nnow proceed to decide as to whether the suit is barred by
\ntime. The credit facility was availed of and documents
\nwere executed on 5.7.1976 and the credit facility was
\nextended and documents were executed on 29.7.1977 being
\nEx. PW-1\/6 to Ex. PW-1\/8 and the letters dt.6.8.1977
\nEx. PW-2\/7 and dt.16.3.1978 Ex.PW-2\/8 establish and admit
\njural relationship between the parties. There are debit
\nand credit entries in the accounts by which its nature is
\ncurrent, open and general upon 25.6.80 and, therefore,
\nthe suit is clearly within time.\n<\/p>\n
  ISSUE NO. 4.\n<\/p>\n
 9. The defendants also sought to allege that this
\ncourt has no jurisdiction to try the suit. Onus to prove
\nthe said issue was on the defendants. No such evidence
\ncould be led by the defendants to prove as to why this
\ncourt has no jurisdiction to try the present suit. On
\nthe other hand, the plaintiff bank has proved that the
\nfacilities were granted and were repayable at Delhi and,
\ntherefore, the Delhi courts have the jurisdiction to try
\nand decide the present suit.\n<\/p>\n
  ADDITIONAL ISSUE  <\/p>\n
 10. So far the additional issue, which was framed on
\n27.10.88 to the effect whether the L.Rs of defendant No. 2
\nare not personally liable of the amount claimed in the
\nsuit, is concerned, onus to prove the said issue was on
\nthe legal representatives of the said defendant. The
\nsaid legal representatives have not led any evidence and,
\ntherefore, they have failed to establish the aforesaid
\nissue so framed. On the other hand, the bank has proved
\nEx.P8, which is dated 6.10.1978 and which proves the
\npersonal liability of the deceased defendant NO. 2 so far
\nthe suit amount is concerned. The said document along
\nwith Ex.PW2\/1 and Ex.PW2\/2 are not challenged by the
\nlegal representatives of the said defendant No. 2 in
\ncross-examination and, therefore, the said documents
\nfasten liability not only on the said legal
\nrepresentatives but also on the defendant No. 3, who also
\nhas not challenged the said part of the evidence.
\nAccordingly, it is held that the said legal
\nrepresentatives of defendant No. 2 are also personally
\nliable for repayment of the amount claimed in the suit by
\nthe plaintiff bank.\n<\/p>\n
 11. It was also sought to be contended by the
\ncounsel appearing for defendant No. 3 that defendant No. 3
\nwas only a working Director of the company, on salary and
\nhe did not execute any guarantee in his personal capacity
\nin favor of the plaintiff bank for any loans advanced to
\ndefendant No. 1. I have considered the said submission of
\nthe counsel for defendant No. 3 also. The said defendant
\nhas stated in his examination-in-chief that he, in his
\nofficial capacity, signed several documents on behalf of
\ndefendant No. 1 but he did not sign any guarantee for
\nre-payment of the loan. A suggestion was given to the
\nsaid witness\/defendant No. 3, in his cross-examination, by
\nthe counsel appearing for the plaintiff bank, which was
\ndenied by him stating that he had not signed the
\nguarantee and had not undertaken the obligation for
\nre-payment of the loan. However, it is already pointed
\nout from the contents of Ex.P-8, authenticity of which is
\nnot denied by the said defendant No. 3, that the said
\ndefendant No. 3 was also a co-guarantor.\n<\/p>\n
 12. In that view of the matter and on the basis of
\nevidence on record, both oral and documentary, I hold
\nthat the plaintiff has been able to prove its case to the
\nhilt and that the plaintiff is entitled to a decree for
\nrecovery of the amount, as sought for by the plaintiff.
\nApart from defendant No. 1 and defendant No. 4 legal
\nrepresentatives of deceased defendant No. 2 and the
\ndefendant No. 3 are also personally liable for re-payment
\nof the aforesaid loan amount and, therefore, a decree is
\npassed for recovery of an amount of Rs. 2,04,303.59 in
\nfavor of the plaintiff and as against all the defendants
\njointly and severally. In addition, the plaintiff shall
\nalso be entitled to payment of interest @ 9% p.a. from
\nthe date of institution of the suit till the date of
\nrealisation along with a cost, which is assessed at
\nRs. 5,000\/-. Decree be drawn accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Bank Of Baroda vs Navratan Trading Co. Pvt. Ltd. And … on 23 January, 2002 Equivalent citations: 2002 VAD Delhi 16, 96 (2002) DLT 889, 2002 (65) DRJ 113 Author: M Sharma Bench: M Sharma JUDGMENT Mukundakam Sharma, J. 1. This is a suit filed by the plaintiff seeking for a decree […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-158794","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nBank Of Baroda vs Navratan Trading Co. Pvt. Ltd. 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