Appeal No. 161 of 2013/989, 990, 1010, 1449 and Claim Petition O.A. No. 796 of 2012. Case: Asha Luxury Theatre and Ors. Vs Indian Bank. Calcutta DRAT DRAT Cases

Case NumberAppeal No. 161 of 2013/989, 990, 1010, 1449 and Claim Petition O.A. No. 796 of 2012
CounselFor Appellant: T.V.A. Narasimham and Nemani Srinivass, Advocates and For Respondents: D. Chakraborty, A. Das and D.C. Sarkar, Advocates
JudgesG. Rajasuria, J. (Chairman)
IssueIndian Evidence Act, 1872 - Sections 101, 102, 103
CitationIII (2015) BC 71
Judgement DateFebruary 13, 2015
CourtCalcutta DRAT DRAT Cases


G. Rajasuria, J. (Chairman)

Heard both sides.

  1. Broadly but briefly, narratively but precisely the germane facts absolutely necessary for the dispose of this appeal would run thus:

    The respondent Bank on coming to know that the borrower did not give a hang about the demand of the Bank for repayment of the loan dues, filed the OA before the DRT, Visakhapatnam seeking the following reliefs:

    (a) to pass an order granting a certificate against the defendants directing them to pay the debt of Rs. 11,88,685/- due;

    (b) to grant subsequent contract rate of interest @ 19.85% with quarterly rests on amount of Rs. 11,28,685/- from the date of filing of the application till the date of realization;

    (c) To pass an order for recovery of the debt by selling 'A' and 'B' schedule mortgaged and hypothecated properties;

    (d) to pass a order awarding costs of the application including the insurance premia if any paid by the applicant after filing the application;

    (e) to pass such other reliefs as the Hon'ble Tribunal deems fit and proper in the circumstances of the case.

    That matter was contested; ultimately the Presiding Officer with certain findings allowed the OA and the operative portion of it is extracted hereinunder for ready reference:

    It is also argued that a letter was written on 19.4.1997 which is marked as Ex. A-48 stating that there is an admission on the part of the defendants to pay the loan amount. This was only signed by the managing partner Sri Chakravarthy who is shown as managing partner and also D2 in this case but however in spite of admissions the Bank did not maintain the accounts properly in the loan account and there is no explanation from the Bank so far as maintaining of the account is concerned and it is clear in all the Bank cases and the account copy will fasten the liability but in this case the account copy itself is incorrect and people will believe the account copy of the Bank and this account copy seems to be totally incorrect in view of the several pay in slips filed by the defendants which one marked as Ex. B-13 to Ex. B-18 containing many books. In these circumstances the account copy cannot be believed and therefore the OA has to be allowed only for the amount of Rs. 11,28,685/- with simple interest @ 6% per annum from the date of OA till realization. This recovery certificate is being issued since it is public money and there is no document to show how much amount is actually due to the applicant Bank. The Bank never proved the amount due. It is the initial burden on the Bank according to the Evidence Act Sections 101 to 103 and the initial burden is not discharged by the Bank. Therefore, the Bank cannot base on the demerits of the defendants' case.

    In the result the OA is allowed with costs for an amount of Rs. 11,28,685/- only along with interest @ 6% simple interest p.a. from the defendants jointly and severally from the date of OA till realization and by sale of schedule mentioned property.

  2. Challenging and impugning the said order of the Presiding Officer the borrower partnership and the two of its partners filed this appeal on various grounds.

    The learned Counsel for the appellant would pyramid his arguments, which could succinctly and tersely be set out thus--

    The Presiding Officer, DRT in the penultimate paragraph of the order clearly and candidly without mincing words pointed out that the accounts of the Bank could not be believed; however, he allowed the entire O.A. awarding subsequent interest at the rate of 6% per annum from the date of O.A. till realization. Such an approach by the Presiding Officer is antithetical to the judicial...

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