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High Court Of Himachal Pradesh
SURINDER SARUP
CM.AUTO STORES - Appellant
Versus
UNION BANK OF INDIA - Respondent
R.S.A. No. 193 of 1997
Decided On : 11/11/1997
LIMITATION - SUIT FOR RECOVERY OF MONEY - OVERDRAFT FACILITY - BANKING - EVIDENCE ACT - BANKERS BOOK EVIDENCE ACT - CIVIL PROCEDURE CODE - INTERPRETATION OF STATUTES - SUBSTANTIAL QUESTION OF LAW - POWER OF ATTORNEY - AUTHORISATION - EXECUTION OF DOCUMENTS - ADMISSIBILITY OF EVIDENCE - LIMITATION ACT - PLEADING - AMENDMENT OF PLEADINGS - DELAY IN FILING SUIT - CONDONATION OF DELAY - JURISDICTION OF APPELLATE COURT - DUTY OF APPELLATE COURT - BIASED APPROACH OF JUDICIAL OFFICER - ADVERSE COMMENTS ON JUDICIAL OFFICER.
Fact of the Case:
The plaintiff-respondent, being the Union of India, filed a suit against the defendants-appellants on the pleadings that the defendant Nos. 2 and 3, on 30.9.1978 had been granted overdraft facility in the sum of Rs. 50,000/ by the plaintiff-bank. They had agreed to pay interest @ 6% over and above the bank rate with minimum of 15% per annum with quarterly rests. The operation of their accounts by the defendants was stated to be unsatisfactory. Hence a sum of Rs. 71,865.10 p., inclusive of interest was outstanding against them till the institution of the suit. Hence the suit for recovery of the said amount.
Finding of the Court:
The suit was barred by limitation as the plaintiff had not pleaded the question of limitation specifically, as required under Order 7 Rule 7 C.P.C. The suit was not maintainable as the plaintiff had not filed the documents in support of its claim along with the suit. The suit was not properly instituted as the plaintiff had not been properly authorised to file the suit. The statement of account produced by the plaintiff-respondent (Ex.P-2) which was not certified properly under the Bankers. Book Evidence Act, the same cold not be read in evidence. The document Mark E, which was relied upon by both the Courts below, was not admissible in evidence as it had not been exhibited in accordance with law as enshrined in Section 67 of the India Evidence Act. The non-filing of the documents, on which the claim of the plaintiff rested in the suit, would make the suit liable to be dismissed. There has been interpolation in the agreement of hypothecation.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the suit was not maintainable as having not been signed and instituted by authorised person as alleged? 3. Whether the suit was within limitation? 4. Whether the plaint was not properly verified as alleged? 5. Whether the plaint was bad for misjoinder of Defendant No. 3? 6. Whether the suit was not maintainable in view of the preliminary objection No. 5 of the written statement ? 6-A. What is the effect of the absence of averments regarding limitation in the plaint?
Ratio Decidendi: 1. The suit was barred by limitation as the plaintiff had not pleaded the question of limitation specifically, as required under Order 7 Rule 7 C.P.C. 2. The suit was not maintainable as the plaintiff had not filed the documents in support of its claim along with the suit. 3. The suit was not properly instituted as the plaintiff had not been properly authorised to file the suit. 4. The statement of account produced by the plaintiff-respondent (Ex.P-2) which was not certified properly under the Bankers. Book Evidence Act, the same cold not be read in evidence. 5. The document Mark E, which was relied upon by both the Courts below, was not admissible in evidence as it had not been exhibited in accordance with law as enshrined in Section 67 of the India Evidence Act. 6. The non-filing of the documents, on which the claim of the plaintiff rested in the suit, would make the suit liable to be dismissed. 7. There has been interpolation in the agreement of hypothecation.
Final Decision: The appeal succeeds and is accepted. The judgments and decrees of both the Courts below are set aside and the suit of the plaintiff-respondent is dismissed with costs.
SURINDER SARUP, J.—The present appeal has been filed by the defendants-appellants against the concurrent judgments and decrees of the two Courts below whereby a decree for recovery of Rs 71,865.10 p. has been passed in favour of the plaintiff-respondent along with future interest at the agreed rate.
2. The plaintiff-respondent, being the Union of India, filed the suit against the defendants-appellants on the pleadings that the defendant Nos. 2 and 3, on 30.9.1978 had been granted overdraft facility in the sum of Rs. 50,000/ by the plaintiff-bank. They had agreed to pay interest @ 6% over and above the bank rate with minimum of 15% per annum with quarterly rests. The operation of their accounts by the defendants was stated to be unsatisfactory. Hence a sum of Rs. 71,865.10 p., inclusive of interest was outstanding against them till the institution of the suit. Hence the suit for recovery of the said amount.
3. The defendants in their written statement took up the perliminary objections that the suit was barred by limitation; that the suit was barred by misjoinder of parties and that the suit was not maintainable. It was also pleaded that the plaintiff had not filed the documents in support of its claim along with the suit. Hence the suit was not maintainable and was liable to be dismissed. Since no plea regarding limitation was made, therefore, the suit was time-barred. On merits, the overdraft facility in question was admitted to have been sanctioned to defendant Nos. 1 and 2 on 30.9.1978, while the suit had been instituted on 18.8 1986. The plaintiff was required to state as to how it was within limitation. It was also pleaded that the suit had not been instituted by a duly authorised person, therefore it was incompetent and merited dismissal.
4. On merits, it was pleaded that Defendant No. 1 was the sole proprietorship concern of Defendant No. 2, while Defendant No. 3 had nothing to do with Defendant No. 1. The Defendant Nos. 1 and 2 had admitted having availed of overdraft facility in the sum of Rs. 50,000/- from the plaintiff-bank on 30.9.1978. According to them, they had not agreed to pay interest at the rate of 6% over and above the bank rate with a minimum of 15% per annum with quarterly rests.
5. On the pleadings of the parties, the trial Court framed the following issues :
1. Whether the plaintiff is entitled to the suit amount. If so, with what rate of interest ? OPR
2. Whether the suit is not maintainable as having not been signed and instituted by authorised person as alleged? OPD.
3. Whether the suit is within limitation? OPP
4. Whether the plaint is not properly verified as alleged? OPD.
5. Whether the plaint is bad for misjoinder of Defendant No. 3? OPD.
6. Whether the suit is not maintainable in view of the preliminary objection No. 5 of the written statement ? OPD 6-A. What is the effect of the absence of averments regarding limitation in the plaint? OPD,
7. Relief
6. All the Issues were decided in favour of the plaintiff resulting in the suit being decreed by the trial Court, i.e. the Court of Shri R.L. Raghu, Senior Sub-Judge, Shimla by its Judgment and decree dated 13.7.1989. The appeal by the defendants-appellants having been dismissed by Shri Shamsher Singh, the then Additional District Judge, Shimla on 31.8.1996 has given rise to the present second appeal.
7. I have heard the learned Counsel for the parties and have examined the record. It has first been submitted by Shri R.L. Sood, learned Counsel for the appellants that the substantial question of law, as framed vide serial No. 11 to the effect as to what is the effect of non-production of the sanction/ authorisation by the bank in favour of the Manager of the branch to file the suit and whether the suit was bound to be dismissed in the absence of the same, stands established from the cross-examination of PW-1 Shri { Anil Kapur. Therefore, I have proceeded to examine the statement of PW- 1. He has categorically admitted that the power of Attorney Ex. P-1 i
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