IMPORTANT POINT
.

AMIT RAWAL, J.

CMNo.4869-C of 2015 in RSA No.1810 of 2015

For the reasons mentioned in the application, which is supported by an affidavit, delay of 34 days in filing the appeal is condoned.

CM stands disposed of.

CMNo.4883-C of 2015 in RSA No.1818 of 2015

For the reasons mentioned in the application, which is supported by an affidavit, delay of 34 days in filing the appeal is condoned.

CM stands disposed of.

RSA Nos.1810 & 1818 of 2015

2. This order of mine shall dispose of two Regular Second Appeals bearing No.1810 and 1818 of 2015 preferred by the appellant-plaintiff against the judgment and decree of the trial Court dated 9.9.2013, whereby the suit for recovery of Rs.79,518/- was partly decreed along with interest at the rate of 9% per annum from the date of filing of the suit till realisation against the claim of Rs.5,66,545/-, which was assailed by both the parties, i.e., the Bank and the legal representatives of defendant No.3 Rajinder Kaur. The Lower Appellate Court, vide judgment and decree dated 11.12.2014, dismissed the appeal of the Bank and allowed the appeal preferred by the legal representatives of defendant No.3.

3. Before adverting to the arguments of the respective counsel, it would be apt to give brief preface of the matter.

4. Appellant-plaintiff instituted the suit for recovery of the aforementioned amount on the premise that defendant Nos.1 and 2 M/s Matta Electronics, 187-188, Railway Road, Ambala Cantt through its Proprietor Tejinder Singh Matta, who was arrayed as defendant No.2, approached the Bank for availing the cash credit/hypothecation limit of Rs.1,25,000/- by offering the guarantee of Rajinder Kaur-defendant No.3. The Bank sanctioned the aforementioned facility on 2.1.1997 for carrying on the business of electronic goods, T.V., Tape Recorder, Two in one and Radio etc. and defendant Nos.1 and 2 executed various documents in favour of the Bank as referred to in Paras 3 and 4 of the plaint, whereas defendant No.3 created equitable mortgage in respect of her property by depositing original title deeds with the Bank as a collateral security. The rate of interest agreed to be paid by the defendants was 14% per annum with quarterly rests, which was further agreed to be revised from time to time when notified by the Reserve Bank of India.

5. In addition to the equitable mortgage, defendants No.1 and 2 hypothecated electronic goods with the Bank. Defendants No.1 and 2 again approached the Bank for availing the facility of overdraft of Rs.2,50,000/- vide letter dated 3.3.2001 and application dated 20.6.2001 for enhancement of cash credit limit from Rs.1,25,000/- to Rs.2,50,000/-, which was enhanced vide order dated 20.6.2001 and the defendants executed various documents.

6. Defendants No.1 and 2 again approached the Bank for temporary overdraft of Rs.25,000/- for one week which was sanctioned. However, defendants No.1 and 2 submitted letter dated 20.7.2003 for adjustment of the amount within one month and also executed the balance confirmatory-cum-acknowledgment of security letter on 5.2.2004, but when failed to adhere to financial discipline, instituted the suit.

7. Defendants No.1 and 2 by filing a joint written statement contested the suit by taking customary pleas. On merits, it was stated that defendant No.3 Rajinder Kaur (since deceased being represented through legal representatives), filed a writ petition before this Court, wherein she was directed to approach the Debt Recovery Tribunal. An application was filed, which was pending adjudication.

8. Defendant No.3 filed independent written statement and stated that a sum of Rs.4.00 lacs had been deposited with the bank, therefore, recovery amount in question was disputed one. Since the parties were at variance, the trial Court framed the following issues:-

(a) Whether plaintiff is entitled to recover Rs.5,66,545/- from the defendants with interest @ 14% p.a. with monthly rests from the date of filing of the present suit till the date of actual realizati