1984 PLP 631 (MLD)

The defendants filed their written statement. 2. On the pleading of the parties the following issues were framed:

"(1) Whether plaintiffs agreed to waive interest from 1-4-1978 and accept Rs.4,20,000 from sale proceedings of the barge in full settlement of their claim. If so, what is the effect? (2) Whether the undertaking dated 4-10-1979 was obtained from defendants on assurance that the interest would be written off'' (3) Whether the suit is barred by time? (4) What should the decree be?"

3. The plaintiff in support of their case examined Mr.Sajjad Hussain Naqvi, an officer working in their office at Central Branch. The witness fully supported and proved the facts stated in the plaint and produced the document Exh.P/1, which is the proposal made by the defendant No.1 for obtaining loan. He also produced the letter Exh.5/2, wherein the defendants requested that the loan amount may be reduced to Rs.5,25,000 instead of Rs.6,00,000 as originally sanctioned. This request of the defendant No.1 was acceded to by the plaintiff bank and thus the loan of Rs.5,25,000 was granted to the defendant No.1, who in consideration thereof executed promissory note Exh.5/4 on 2nd March, 1976 and delivered the same to the plaintiff bank agreeing to repay the said amount with interest at the rate of 4% over the bank rate minimum 13% per annum with quarterly rests. The plaintiff has also produced Exh.5/7 which is the deed of hypothecation dated 7-6-1976 of goods to secure demand cash credit loan amount. The letter of guarantee executed on 27-7-1977 by the defendants Nos.2 to 5 has been produced as Exh.5/8 whereby these defendants guaranteed the repayment of all moneys (the principal amount not exceeding Rs.4,55,000) which at any time be due to the plaintiff bank from the defendant No.1. On 12th March, 1979, the defendant No.1 by their letter Exh.5/9 admitted that they were granted loan in the sum of Rs.5,25,

000. According to them they had made payments of various amounts towards the principal as well as the interest and they further requested adjustment of the fixed deposit receipts and for certain facilities in view of the losses suffered by them in the business. Subsequently the defendant No.1 by their letter, dated 10th April, 1979 wrote to the plaintiff bank its follows:

"At our request the bank agreed to release the barge on payment of Rs.4,20,000 against the total liability outstanding against us. For the balance amount of about Rs.75,000 we hereby undertake to repay within a period of three months." The plaintiff bank on 12th May, 1979, however, called upon the defendant No.1 that a sum of Rs.74,579.70 was outstanding in their loan account and that the Executive Board as a special case approved to write off a sum of Rs.15,770 provided the defendant No.1 adjusted the remaining balance i.e.Rs.58,809.70 in lump sum. The defendant No.1 was further informed to arrange to repay the said amount immediately in order to avail the sanctioned rebate. A reminder was also issued by the plaintiffs on 13th June, 1979 Exh.5/13. The defendants however failed to make the payment and comply with the demands made. In the circumstances the plaintiffs by their letter, dated 14th November, 1979 Exh.5/16 called upon the defendants to repay and adjust the total amount outstanding, i.e. Rs.74,615.70 and they were warned that in case they failed to do so legal proceedings would be commenced at the defendants risk and cost. The final notice was given by the plaintiff on 14th November, 1979 Exh.5/16. The plaintiffs have produced the statement of account Exh.5/17, which is duly certified in accordance with the Banker's Books Evidence Act, 1891 which shows that as on 31st May, 1980 the defendant No.1 was liable to pay Rs.89,107.03 to the plaintiff.

4. The evidence given on behalf of the plaintiffs remained un rebutted. The plaintiffs witness was not even cross-examined in spite of opportunity given. The defendant have remained absent and have not led any evidence. Accordingly I find that the defendants have failed to prove that the plaintiffs waived interest from 1-4-1978 or accept Rs.24,000 from the sale proceeds of the barge in full Settlement of the claim. The Issue No.1 is accordingly answered in the negative.

5. The perusal of the defendant's letter Exh.5/10 which has been reproduced in extenso does not establish that the plaintiff had given any assurance that the interest would be written off. There is nothing on the record that this letter, dated 10th April, 1979 (Exh.5/10) was obtained by the plaintiffs from the defendant on the assurance that interest would be written off. Issue No.2 is accordingly answered in the negative.

6. There is nothing on record to show that the suit is barred by time. On the contrary the defendant own letters, dated 12th March, 1979 Exh.5/9 and letter, dated 10th April, 1979 (Exh.5/10) would show, that the defendant No.1, admitted their liability and promised to repay the amount due and also the interest to the plaintiff bank. The liability of the defendants Nos.2 to 5 a guarantors as per Exh.5/8 executed on 27th July, 1979 has neither been disputed nor it has been shown that the claim of the plaintiffs against them is barred by time. The issue A No.3 is accordingly answered in the negative.

7. The upshot of the above discussion is that the suit against the defendants is decreed with costs with interest at the rate of 13% per annum from the date of the suit till realization. M. I. Order accordingly.