UCO Bank as appellant has preferred this appeal challenging decree of dismissal passed by the learned Civil Judge, Senior Division , Hailakandi on 18.6.2004 in Title Suit No. 37 of 1999.

2. The Regional office of the UCO Bank (shown as United Commercial Bank, Silchar) instituted Title Suit No.37 of 1999 in the court of the learned Civil Judge at Hailakandi stating that on receipt of application for loan from defendant No. 1, M/S Choudhury Rice Mills owned by Md. Abdul Rahim Choudhury for loan of Rs.2,21,000/, the plaintiff bank agreed to sanction Rs.1,93,000/- on condition to produce suitable financially sound guarantor undertaking to repay the loan money subject to terms and conditions. Accordingly, an agreement was executed by defendant No. 1 with the plaintiff relating to term loan on 12.10.1989 and a deed of hypothetication of plant and machinery was also executed on the same date to secure the loan. The defendant No. 1 executed receipt documents in favour of the plaintiff. Defendant No. 2 being a guarantor also executed necessary documents. The aforesaid loan was supposed to be repaid on monthly installments within 7 years with a moratorium of six months and the equated money installments were Rs.2680/- and the last installment was Rs.2720/-. But defendant No. 1 violated the terms and conditions in regard to payment of installment. He paid some money as per his convenience which was duly adjusted against loan amount with interest but the repayment was so negligible that balance continued increasing day by day despite undertakings to liquidate the loan. The defendants ultimately failed to honour the commitment and under such circumstances, bank issued notice through pleader on 3.3.1998 demanding Rs.4,31,631.54 on or before 31st March, 1998. Upon receipt of the notice, the defendants replied that he deposited Rs.10,000/- and Rs.3,000/- on 16.3.1998 and 29.4.1998 respectively with the plaintiff bank and requested the bank to allow him to pay total sum of Rs.2,00,000/- against the whole amount alongwith interest. As the same was not in keeping with the norms of the bank , the bank could not accede to the request and as such filing of the suit became necessary. The suit was accordingly filed on 23.9.1999 praying for a preliminary decree against the defendants for Rs.5,16,761.14/- along with pendentalite interest @ 15.05 % per annum and for a final decree thereafter if defendants failed to make payment of the amount. A final decree was prayed for sale of mortgaged property described in the schedule to the plaint. However, in the body of the plaint there was no recital to the effect that the defendant No.1 made mortgage of any immovable property by deposit of title deed or otherwise.

2. Upon receipt of summon, the defendants submitted a joint written statement denying the averments made in the plaint and denied all the statements in entirety. However, defendants stated that on 29.6.1969 defendant No. 1 prayed for loan of Rs.2, 21, 000/- in respect of installment of rice mill known as M/S Choudhury Rice Mills and accordingly, plaintiff bank sanctioned Rs.1,93,000/- in favour of defendant No. on 28.8.1989 for which defendant No. 2 stood guarantor. But, the Government delayed issuance of license from 19.10.1989 to 7.8.1993 but for which the mill could not start functioning. The department of supply under the Government initiated proceeding against defendant No.1 under the Essential Commodities Act in which defendant No.1 was ultimately discharged on 4.1.1994. It is under such circumstances defendant No.1 requested the plaintiff bank to exempt him from the payment of interest for the period from 19.10.1989 to 7.8.1993. The defendants also requested the bank to provide him with working capital which the bank did not comply and so the very purpose for which the loan was prayed for did not materialize. The bank permitted moratorium only for a period of 6 months. The defendant No. 1 further asserted that he did not commit defaul