Shubham Cement (Proprietor) and Others vs Bank of Baroda, Rampura Branch

Nisha Gupta, J.—The instant civil regular first appeal has been preferred against the judgment and decree dated 01/03/1993 passed by the court of Additional District Judge No. 2, Kota by which the suit filed by the plaintiff-respondent Bank of Baroda for recovery of amount of Rs. 3,41,920/- has been decreed in its favour and against the defendant-appellant.

The facts giving rise to this appeal in brief are that plaintiff-Bank of Baroda, Branch Rampura, Kota has filed a suit for recovery of amount of Rs. 3,41,920/- with the contention that a cash credit facility to M/s. Shubham Cement has been allowed by the bank and defendants No. 2 to 5 stood as guarantor. Cash credit facility was provided by the bank to the firm in October, 1982 to the extent of a sum of Rs. 8,00,000/-, Rs. 4,00,000/- has been allowed on pledge of the goods and Rs. 4,00,000/- has been allowed on hypothetication of stock. Since a sum of Rs. 3,41,920/- remained outstanding hence, suit has been filed for recovery of the said amount.

Defendant-appellant contested the suit on the ground that they have not executed any documents and their signatures have been obtained on blank forms and promissory notes and other documents are without any consideration. Stock has been destroyed in the flood on 25/07/1986. The goods were insured by the bank hence, compensation could be claimed through insurance company and appellant is not under any liability to pay the amount. The court below has decreed the suit hence, this appeal.

Heard learned counsel for the appellant and perused the impugned judgment and decree as well as original record of the case.

The appeal has been filed only with limited contentions. First contention of the appellant is that the suit has not been instituted by a competent person as the Regional Manager was not authorized to file suit as regards to branch of Bank of Baroda situated at Rampura as he was the Branch Manager of Branch Bharoch and Panch region.

The plaintiff has relied upon Ex. 1-Power of Attorney. Bare reading of document Ex. 1 Power of Attorney clearly speaks that it is true that Shri Makvana was posted at Bharoch and Panch region but he has been authorized as an Attorney of the bank for places in India and further he has been authorized to act on behalf of the bank and when he was authorised for all the places in India, no infirmity could be seen in the maintainability of the suit.

Further contention of the appellant is that promissory note is without consideration as no money has been paid to the appellant. A bare perusal of the pleading, which has been supported by the statement of P.W. 1 I.D. Chapadiya clearly speaks that cash credit facility has been allowed to the appellant for Rs. 4,00,000/- in lieu of hypothetication of stock and Rs. 4,00,000/- in lieu of pledge of goods and for the same, documents have been executed hence, it is not the case of the plaintiff-respondent that any cash amount has been paid to the appellant. Statement of accounts and copies of ledger Ex. 17 to Ex. 47 have been submitted and proved by the witness, which clearly shows that documents were not without consideration.

Last contention of the appellant is that the goods were insured, premium has been paid hence, claim should be taken from the insurance company. It is not in dispute that the goods have been insured but claim has been filed by the appellant himself and for which Ex. A4 claim form has been submitted. Apart from it, contention of the appellant was that the goods have been damaged due to flood on 25/07/1986, whereas Ex. A7 communication sent by the appellant clearly says that the insurance had expired on 23/07/1986. Hence, contention of the appellant that from the insurance company, the loss should have been recovered, is misconceived as on the alleged day of damage, no insurance was in force.

In view of above, all the contentions of the appellant are not sustainable. Court below has considered rival contentions as well as evidence produced by both the parties and after considering merit of the case, rightly decreed the suit against the defendant-appellant. Hence, no interference is needed in the impugned judgment and decree.

Hence, the appeal is dismissed. The record be sent back to the court below forthwith.