R.N. Gupta And Ors. vs ICICI Bank Ltd.

Ranjit Singh, J

Aggrieved against the order passed by the Tribunal below in allowing the OA filed by the respondent ICICI Bank, the appellants have filed the present appeal. The respondent-Bank had filed the OA for recovery of Rs. 21,19,933/- with costs and interest @ 24% p.a. from the date of filing of the application till realization.

This is a case where the appellant No. 1 had approached the Bank for loan facility for purchase of office equipments against their hypothecation. The Bank had accordingly granted financial assistance of Rs. 25.97,700/-, Rs. 5,08,144/- and Rs. 50,01,500/- in three different accounts. The appellants had agreed to repay the same in separate 24 equated monthly instalments of Rs. 1,25,692/-, Rs. 24,640/- and Rs. 2,39,947/- respectively in three different accounts. Appellant No. 2 Mr. Devender Gupta stood as a guarantor for repayment of the loan amount.

The Bank has alleged that the appellants failed to maintain the financial discipline and defaulted on payment of the amount. Once the appellants failed to regularize the accounts and had only paid 15, 15 and 23 instalments respectively, the instalments became overdue. The Bank had then sent three separate legal notices calling upon appellant No. 1 to pay the outstanding amount. It is in this manner a sum of Rs. 21,19,933/- besides interest was claimed in the OA filed by the Bank.

In their written statement, the appellants urged that the Bank had not approached the Tribunal with clean hands and had suppressed the material facts. The appellants would allege that they had furnished Fixed Deposit of Rs. 10 lacs on March 3, 2007 which was to carry interest. This FDR was lien towards the loan account No. LODEL00009689023. There was yet another FDR for Rs. 3,10.585. The appellants had also urged that 16 instalments were paid in respect of two loan accounts and only 8 instalments were due in respect of account No. LODEL000011889075 amounting to Rs. 10,07,696/-. Another sum of Rs. 1,97,120 was due in third account No. LODEL00011890981 and no amount was due in the first account noted above. As per the appellant, at the best, the Bank was entitled to recover a sum of Rs. 12,04,816/-. Plea is that the Bank could return the cheques which were not paid 7 dishonoured and a sum of Rs. 13,10,585/- lying with the Bank since 2007 be returned with interest. As per the appellants, the Bank thus was not entitled to recover any further amount. As per the appellants, they could not pay the instalments as the account of appellant No. 1 was freezed by the Income Tax Department. They accordingly prayed that they could be liable to pay only the principal amount.

The Tribunal below after considering the pleas and evidence has held that appellant No. 1 is the principal borrower, whereas appellant No. 2 is the guarantor. They both have been held jointly and severally liable to pay the dues of the Bank. Without discussing any evidence, the Tribunal below has simply observed that there is no reason to disbelieve the evidence filed by the Bank as the same is filed by way of affidavit and his based on the official documents. The Tribunal below has accordingly allowed the claim of the Bank with interest @ 15% p.a.

The Counsel for the appellants has made a limited grievance in support of this appeal. The Counsel would plead that the two FDRs which the appellant had deposited with the Bank had not been properly adjusted while filing the claim in the OA for Rs. 21,19,933/-. The stand of the Bank was that these FDRs had been adjusted towards the loan account. The Bank, however, could not show or substantiate this plea by any document or evidence on record. Finding this to be a limited grievance, the case was even referred to the Lok Adalat to see if the FDRs obtained by the Bank had been adjusted and if so in what manner. The matter could not be settled during the Lok Adalat.

When the case was taken by this Tribunal again, the Counsel for the Bank had submitted that these FDRs were adjusted in some other account on the request made by the appellants. Time was allowed for the Counsel to produce the said communication. Despite two opportunities, no document could be produced or shown by the Counsel for the respondent Bank indicating that no such request was made by the appellants which has led to adjustment of these two FDRs. That being the position, the Counsel for the appellants is justified in submitting that the matter may be remanded back to the Tribunal below to consider this aspect as despite having made a plea in this regard by the appellants, the Tribunal below has failed to consider the same in any manner. It is fair that this case is remanded back to the Tribunal below to see if the two FDRs of the appellants, which were available with the Bank, had been adjusted by the Bank while making claim in the OA. If the Tribunal below finds that the amount claimed in the OA was after adjusting these two FDRs then the Tribunal would be at liberty to maintain the order already passed. If, on the other hand, the Tribunal comes to this conclusion that these FDRs had yet to be adjusted, then it may pass a fresh order in accordance with law.

The present appeal is accordingly disposed of in the above terms.