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Andhra Pradesh High Court
Judges : B.PRAKASH RAO, CH.S.R.K.PRASAD
Indian Bank, Chittoor - Appellant
Versus
V.R.Venkataraman - Respondent
A.S.No.1688/91
Decided On : 12-17-03
Advocates Appeared :
Mr.P. Suresh, Mr.V.L.N.G.K. Murthy
Appellant, bank contends that signature on guarantee bonds and confirmation letters are admitted and burden is on defendant to show that there is fraud and collusion in execution of documents - When party does not appear into witness box and state his own case presumption would arise that case set up by him is not correct.
Suppression of important documents - In the absence of production of originals one cannot make cryptic analysis of documents - Adverse inference is justified to be drawn for suppression of documents when party in possession does not produce originals.
In this case, failure of defendants to give reply to notice issued by plaintiff, bank would only go to show that it is against conduct of a prudent person to keep silent when documents are manipulated and fraud was played.
When some of signatures are admitted by one of defendants, it is for other defendants to show as to how and in what circumstances documents are manipulated.
Bankers’ Book Evidence Act, Sec.2(8) - Contention that reliance cannot be placed on true copies of accounts produced by bank which goes contra to provisions of Cl.(8) of Act - Statute gives exemption under Banker’s Book Evidence Act from production of original - It lays down particular procedure to produce copies which can be treated as certified copies - In the present case certified copy does not contain seal and stamp of Bank - Endorsement required u/Sec.2(8) of Act is sine qua non in order to treat copy as true copy - In the absence of certificate issued u/Sec2(8) of Act it cannot be acted upon.
In absence of making mention of rate of interest in guarantee bonds, interest has to be granted at rate of 6% on decretal amount from date of suit till realization - Judgment and decree passed by trial Court dismissing suit against defendants 2 and 3, set aside - Appeal, allowed.
( 1 ) THIS appeal is directed against the judgment and decree dated 24-6-1991 passed in O. S. No. 106 of 1988 on the file of the Additional Subordinate Judge, Chittoor, dismissing the suit against defendants 2 and 3 which has been filed on the strength of an alleged mortgage of deposit of title deeds. The plaintiff is the appellant.
( 2 ) THE facts that arise for consideration can be briefly stated as follows: on 25. 8. 1985 the first defendant, who is the first respondent herein, applied for credit facility for his arrack and toddy business. Defendants 2 and 3, being respondents 2 and 3 herein, agreed to provide necessary security and offered themselves to be guarantors on behalf of the first defendant to the plaintiff for payment of the amount advanced to the first defendant and they submitted the details of assets and liabilities to the plaintiff. The first defendant executed the guarantee agreement on 30-9-1985 in favour of the plaintiff. All the defendants on 30-9-1985 executed letters of lien and set off in favour of the plaintiff. On 30-9-1985 defendants 2 and 3 executed an agreements of guatantee in favour of the plaintiff. The 2nd defendant on 1-10-1985 deposited title deeds in respect of the properties described in A Schedule with an intention to create a valid equitable mortgage over the said property. The deposit of title deeds on 1 -10-1985 has been confirmed by the letter dated 3-10-1985. The 3rd defendant also deposited his title deeds in respect of b Schedule properties on 1-10-1985 executed guarantee agreement on 30-9-1985. The deposit of title deeds by the 3rd defendant has been confirmed by the plaintiff by letter dated 3-10-1985. The 1st defendant requested the plaintiff bank for the issue of bank guarantees in favour of the excise Department valid for a period of 15 months, with 30% cash margin in the form of fixed deposit and 1% commission for 15 months. The plaintiff bank issued guarantee no. 12/85 for a sumof Rs. 26,65,788-02 towards two months rental during the excise year 1985-86 and guarantee No. 12-A/85 for rs. 2,18,915-00 being the MGQ deposit to lift mgq of 4,37,839 liters of arrack during the excise year 1985-86. The 1st defendant also pledged with the plaintiff the fixed deposit fdr No. 138665 dated 20. 9. 1985 for a sum of Rs. 8,65,450/- for 15 months due on 30-12-1986. For failure to pay the rentals by 20-7-1986 for the month of July 1986, the excise Superintendent invoked the bank guarantee No. 12/85 on 21-7-1986 for the payment of Rs. 13,32,894. 01 Ps. The plaintiff also foreclosed the FDR pledge towards the margin amount towards guarantee to the extent of Rs. 9,14,869-56 Ps. , inclusive of interest of Rs. 49,419-56 Ps. As the amount for rental is not sufficient, the plaintiff remitted one month rental to the Excise department after debiting the balance amount of Rs. 4,18,024. 45 Ps. , to the defaulted guarantee account of the 1st defendant. The 1 st defendant also failed to pay rentals for the succeeding month of august 1986, the Excise Superintendent by his letter Rc. No. 1014/86a dated 20-8-1986 invoked the bank guarantee No, 12/85. There was no amount available in the account of the 1st defendant. The plaintiff on 26. 8. 1986 paid the sum of Rs. 13,32,894. 01 Ps. , to the excise Department towards one month rental due for the month of August, 1986 and debited the said amount also the defaulted guarantee account of the 1st defendant. As such a sum of Rs. 17,50,918-46 Ps. , has been debited in the defaulted guarantee account of the 1st defendant. The plaintiff issued notice on 20-11 -1986 demanding the amount of Rs. 15,68,078. 25 Ps. , with interest at the rate of 17. 5% from 24-7-1986 to 31-3-1987 along with 2% penal interest and from 1-4-1987 interest at the rate of 16. 5% with 2% penal interest. The defendants did not give any reply. Thereupon, the plaintiff filed the suit against the defendants for realization of the amount of rs. 16,94,404. 00.
( 3 ) THE 1st defend
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