The primary duty of keeping a vehicle comprehensively insured lies with the borrower, and the bank is not obligated to insure the vehicle unless the borrower fails to do so.

( 1 ) THE plaintiff-bank has filed this suit under Order 37 of the Code of Civil Procedure (Code for short) for recovery of Rs. 1,00,391. 74 and also for sale of the hypothecated vehicle under Order 34, Rr. 4,5 and 15 of the Code against the defendants. The allegations are that the plaintiff-bank is a body corporate constituted by the State Bank of India Act, 1955 with its local head office at 11, Parliament Street, New Delhi and central office at Madam Cama Road, Nariman Point, Bombay. The branch at Azadpur is one of its branches. Shri M. P. Singh being the Branch Manager and principal officer of the bank at the time of filing of the suit is authorised by the concerned officers of the bank in the local head office to sign, verify the pleadings and institute the suit.

( 2 ) ON or about 2nd June, 1980, defendant No. 1 approached, requested and applied to the bank vide an application for a medium term lojan of Rs. 1,36,000. 00 for purchasing a transport vehicle, Ashok Leyland Comet 176" (1980) for use in his business of transportation. The loan was sanctioned to de- fendant No. 1 payable in 40 monthly instalments of Rs. 3400/ - us interest commencing from 2nd June, 1980. Defendant No. 1 purchased the truck from Delhi Automobiles Pvt. Ltd. on the strength of advance/finance granted by the plaintiff. Its body was got made from M/s. Royal Body Builders at an expenditure of Rs. 25,000. 00. Defendant No. 1 executed an agreement of hypothecation of the vehicle on 2nd June, 1980 agreeing to repay the principal amount with interest at the rate of 5. 50% above the State Bank of India advance rate with minimum of 11 % per annum rising and falling therewith calculated on the daily balance of the amount due subject to enhancement. It was also agreed that in the event of any instalment being not paid, the bank shall have the option to determine the agreement and the whole balance of the said loan shall become payable immediately and the bank will be entitled to charge enhanced rate of interest on the outstandings. Defendant No. 1 also furnished a third party guarantee duly executed by defendants 2 and 3. Defendants made themselves jointly and severally liable for the repayment of the principal and interest in accordance with the terms of agreement of hypothecation and guarantee. Defendants, however, did not co-operate and did not maintain any proper or regular payment from time to time despite requests, reminders and assurances of the defendants. Defendant No. 1 did not even produce the vehicle for inspection and verification in terms of the agreement between the parties. The books of accounts maintained regularly by the plaintiff-bank show a debit balance of Rupees 1,00,91. 74 with interest accrued therein up to the date of the suit.

( 3 ) ON being served, defendants put in appearance within time. It was stated on their behalf that only a copy of the plaint was served on them while copies of the documents relied upon were not served. The defendants also moved IA 29-86 under Order 7, Rule 14 of the Code in January, 1986. From the proceedings dated 4th April, 1986 it appears that copies of the documents were supplied and, therefore, the aforesaid application was not pressed. The proceedings of the same date also show that IA 7154/86 was moved on behalf of the plaintiff for issue of summons for judgment.

( 4 ) ULTIMATELY the present application i. e. I. A. No. 4028/86 was moved on behalf of defendant No. 1 for leave to defend the suit. It is stated as a preliminary objection that the suit is time-barred. On merits it is stated that the suit under Order 37 is not maintainable because the plaintiff did not file original documents and also did not supply copies of the same to the answering defendants. Plaintiff is also alleged not to have filed the true statements of accounts for all the dealings and transactions between the parties. Interest is alleged to have been charged at a rate higher than the agreed rate of interest. The bank is