1989 PLP 384 (CLC)

S.12 (2) & 0. XXXIV. Rr.4 & 5‑‑Fraud Debtor alleging that Bank had obtained preliminary and final decrees by fraudulent misrepresentation and suppression of fact in respect of certain amount/ advances allegedly outstanding against him Perusal of judgment whereby preliminary decree was passed clearly indicated that a statement of account of debtor had been filed wherein a certain amount was shown as outstanding against him and correctness thereof was not disputed Debtor conceded that he had failed to pay even a single instalment Alleged misrepresentations having been duly pleaded in written statement application under S.12 (2), Civil Procedure Code, held, was wholly uncalled for and unsustainable in law. Azhar Ali Siddiqui for Applicant. Mohammad Shibli for Opponent. Dates of hearing: 30th and 31st March,1988. This application under section 12 (2), C.P.C. has been presented by the defendant alleging that the plaintiff had obtained the preliminary and final decrees in Suit No.57/77 by fraudulent misrepresentation and suppression of facts and hence they are liable to be set aside. 2. It is mentioned in this application that in a letter of the Bank dated 7‑8‑1974 certain demands had been made in respect of house building advance, the motor‑car advance, exclusive of interest, and excess salary paid for the period for December 1974. In this very letter certain amounts toward provident fund contribution (own) P.F. Contribution (bank) totalling Rs.32,886/67 were shown payable to the applicant. In the list of amounts payable to the applicant the amount of gratuity was not included which was later on calculated at Rs.22,000 and thus the applicant was entitled to be paid a total sum of Rs. 56,704 and if the amount allegedly outstanding against the applicant was deducted therefrom then there was no amount left outstanding against the applicant and hence there was no question of any recovery of any amount from him. However, through misrepresentation in para 8 of the plaint, a sum of Rs.53,210. 93 instead of a sum of Rs.36,476.32 was shown as recoverable from the defendant /applicant although if the amount of gratuity, applicant s provident Fund (own) contribution and the bank contribution towards provident fund, was taken into consideration the applicant had to receive a . sum of Rs.53,210.93 from the plaintiff /opponent. The suit was thus filed upon fraudulent misrepresentation of facts and in breach of service rules of the plaintiff opponent, and consequently the preliminary decree was obtained fraudulently. Moreover, in the preliminary decree it was observed that an amount of gratuity of Rs.22,000 would also be adjusted but no fresh account was filed after adjustment of the said amount in the application for praying for final decree and the order to the final decree passed by this Court is also silent on this point and no recoverable amount has been mentioned in the final decree. Lastly, it is mentioned in the application that the suit had been filed as mortgage suit under Order 34 and as such it should have been confined only to the advance of house building for which the property was mortgaged. The other items had been included illegally as they could not form part of the suit. 3. I have heard the learned counsel for the parties. Mr. Azhar Ali Siddiqi, learned counsel for the applicant, reiterated the same contentions before me which are mentioned in the application. The learned counsel for the opponent/ plaintiff, on the other hand, opposed the application by contending that the applicant /defendant had full and reasonable opportunity to raise all sorts of objections and place against the plaintiff s claim and he actually did so. The written statement was filed by the applicant /defendant and he had taken all the pleas now mentioned in the application and later on, in his application under Order 47 read with sections 151 and 152, C.P.C., dated 29‑5‑1979. The counsel also drew my attention to the fact that the preliminary decree was passed with the consent of the applicant. He further stated that the applicant /defendant filed L.P.A. which was dismissed. He then filed application for leave to appeal in Supreme Court being No.K‑6/80 but it was subsequently withdrawn on 10‑1‑1981 in view of the fact that the preliminary decree had been passed by consent of the parties. 4. As a matter of fact, a perusal of the judgment dated April 18, 1979 whereby a preliminary decree was passed, clearly indicated that statement of account of the defendant had been filed wherein a sum of Rs.36,996.29 was shown as outstanding against him and the correctness thereof was not disputed by Mr. Asad Ali Bilgrami, learned counsel for the applicant‑defendant. Hence a preliminary decree in the sum of Rs.36,996,29 less the amount of gratuity was passed, and by consent of parties the applicant/defendant was allowed to pay the decretal amount in instalments of Rs.500 per month commencing from 1‑6‑1979 with a clear stipulation that in case of default in payment of any three instalments, the plaintiff would be entitled to apply for the passing of final decree. Since no instalment was paid, by the defendant /applicant into the Court or to the plaintiff direct, the plaintiff made two applications (C.M.As. 617/80 and 3356/85) for final decree. The applicant‑defendant was represented by Mr.Ansar. Hussain, Advocate, who conceded that the defendant had failed to pay even a single instalment. It was, however, submitted that the application under Order 34 rule 5 read with Section 151, C.P.C. (C.M.A. 3356/85) was time‑barred. The said application was, however, found to have been wrongly made during the pendency of the first application (C.M.A. 617/80) and consequently, a final decree was ordered to be passed as prayed, vide order of the Court dated 19‑1‑1987. 5. From the statement filed by the plaintiff /opponent it is evident that after deducting the gratuity amount of Rs.22,000 the amount payable by him has been shown as Rs.36,993.29 only. I do not, L therefore, find any substance in this application. The alleged misrepresentations were duly pleaded in the written statement and hence this application is wholly uncalled for and unsustainable in law. It is, therefore, dismissed hereby. M . Y . H / B‑88/ K Petition dismissed.