Bank of India vs Pritam Singh

R.D. Vyas, J.

The Appellant Bank as the plaintiff, has come by way of appeal for enhancement of Rs. 3.449 /- which is decreed less according to it. The case of the appellant is that it filed a suit for the recovery of outstanding amount of loan advanced to respondents No. 1, 2. with 3 and 4 as sureties, or guarantees for the purchase of Metadore Vehicle. According to the Bank. at the foot of the account, an amount of Rs. 255562-50 was outstanding and the suit was for the recovery of the same which inspite of the request of the Bank respondents were not paying. Under the hypothecation agreement, the Bank had a loan over the vehicle and right to sell the same for realisation of the outstanding amount. The Bank by an advertisement published in a News Paper, auctioned the said Metadore under the terms of its contract, which was bid to the highest bidder at the rate of Rs. 21,551/.

The Trial Court after receiving the written statement of the respondents. . raised issues and taking the evidence, and hearing the parties, came to the conclusion that the respondent has not cleared the Bank dues and decreed the suit.

The Lower Court has held that the Bank had fixed the upset price at Rs.25,000/- or at least the Bank''s estimate was that the Metadore in auction or sale would letch more than amount of Rs. 21,551/. There is a default committed by the Bank in not issuing them notice of auction. Shri Consel''s argument that in the decree, amount of Rs. 3,449/- denied is imaginary, as the same is based on imaginary estimate of Rs. 25.000/- by the Bank. It cannot be said that the Bank has defaulted in not being able to fetch any bidder to the tune of the amount estimated by the Bank. Again, he argued that it is not a private sale and sale by Bank has been continued after giving notice to the respondent as also by issuing a public auction and at the public auction the amount revived by the Batik was Rs. 21551. He argued that it is not the case of the respondent any way that the Bank has given by way of concessions any one a lesser price or that the amount has been accepted in spite of the fact that Rs. 21,551 was less than the expected price. In that view of the matter, there is no reason for the Court not to grant a decree for an amount for which the appeal is preferred. I agree with the contention of Mr. Consel. There is no reason for the lower Court for not granting a decree for the whole amount. It cannot be said that an up set price once fixed, becomes the price for the thing, sold in auction. It is. a common practice that at the auction, many factors take place. Some times the estimates may fail. It is also possible that much more amount than the upset price could be fetched. If there is no good bidder, or the goods sold have not much market price, the offered amount is less than the estimate. In that view of matter, the person, who has estimated, cannot he faulted with.

Shri K.B. Joshi, for respondent No. 1 and 2, Shri Rajesh for respondent No. 4 argued that the suit was not maintainable, as the same has not been filed by a properly constituted Power of Attorney Holder.

Shri Counsel reply to this, is that the suit is not tiled by the Power of Attorney Holder, but the same is filed by the Bank of India. Hence the question of Power of Attorney does not arise in the matter. Therefore, the argument of Mr. Joshi stands for rejection. He argues that Power of Attorney is not on a proper stamp. As the question of Power of Attorney does not arise in the matter, this argument cannot stand even for a minute.

Appeal allowed.