Original Application No. 117 of 1998. Case: State Bank of India Vs Kothari Trading Company and Ors.. Guwahati Debt Recovery Tribunals

Case NumberOriginal Application No. 117 of 1998
JudgesAbdul Khalique, Presiding Officer
Judgement DateMay 27, 2005
CourtGuwahati Debt Recovery Tribunals


Abdul Khalique, Presiding Officer

  1. The brief story behind the applicant's claim to recover Rs. 2,50,69,684.47 from the defendants is that defendant Nos. 2,3 and 4 were carrying on business in partnership under the name and style of Kothari Trading Company (defendant No. 1) and obtained credit facilities from the applicant against hypothecation of its assets, guarantees of defendant Nos. 2, 3, 6 to 9, 11 to 13, 22 to 24 and 27 and also the guarantee given by late Kundanrual Kothari, predecessor-in interest of defendant No. 5(I) to 5(III), 8 and 13 and also against mortgage of the immovable properties of defendant Nos. 2 to 28. On 30th December, 1991 applicant sanctioned an import letter of credit limit of Rs. 2 crores on terms and conditions contained in the sanction letter which were accepted by Late Kundanmal Kothari by signing the copy of the sanction letter and the defendant No. 1 availed the said credit facilities under the terms and conditions contained in the sanction letter. Mortgages in respect of properties of defendant Nos. 2 to 28 were created on the strength of power of attorneys. Defendant No. 1 admitted and acknowledged its liability in respect of the said facilities and executed two revival letters dated 24th December, 1994 and 24th December, 1996. The balance in the loan account was confirmed and acknowledged by the defendant No'. 1 on 31st October, 1997 with interest calculated upto 30th September, 1997. By a letter dated 23rd February, 1998 signed by the defendant Nos. 2, 3 and 6 and Late Kundanmal Kothari acknowledged and admitted the liability of defendant No. 1 as on 19th February, 1998 to the extent of Rs. 200.0 1 lacs. Defendant No. 1 failed to observe the terms and conditions and due to non-payment of import bills negotiated against the import letters of credit issued on behalf of the defendant No. 1, the applicant had to crystallise the same by debit to the current overdraft account of defendant No. 1 in terms of authority contained in the agreement and debited to the account. In view of the breach of agreement and irregularities in the account, the applicant called upon the loan and demanded payment by a demand notice dated 25th February, 1998. Defendant No. 1 failed to liquidate the outstanding amount and also failed to regularise the account despite demand and the applicant has thus come with the application. The defendants in various sets submitted written statements through their agent, named Mr. Maliram Sharma. All the defendants have taken the common plea of want of maintainability, cause of action and bar of limitation. Defendant Nos. 1 to 4, 6 to 10, 13,14,21 to 24 and 27 by filing a joint written statement have not disputed the facts relating to availment, of credit facilities by the defendant No. 1, execution of guarantee, creation of mortgage but they wanted to say that defendant No. 2 and Late Kundanrn Kothari were neither constituted attorneys for each other nor constituted...

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