TaxTMI 
TaxTMI 
2005 (4) TMI 640
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Bank has filed a civil suit against all the defendants, i.e., borrower and guarantors for recovery of Rs. 1,17,000/- and interest at the rate of 16.5% p.a. from the quarterly rates as per the rate fixed by the Reserve Bank of India. It was also prayed that the property of defendants Nos. 3 and 4 be auctioned and decretal amount be recovered. Loan was taken by Rishabhchand Jain s/o defendant Nos. 1 and 2 and the application for term loan and cash credit was submitted on 16-12-88. Bank has decided to grant loan to said Rishabhchand Jain on 19-1-1989. Rishabhchand Jain on 2-3-1989 was given a loan of Rs. 34,000/- for manufacture of his product and on 2-3-1989 facility of cash credit of Rs. 28,000/- (working capital) was given. Said Rishabhcha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s taken in the year 1989 and the said loan was extended from time to time, but the extension of period was without the consent of the guarantor. It is further contended that mere deposit of amount in the Bank in the name of borrower will not bring suit within limitation. It is contended by the appellants that any person can deposit the amount in the account of borrower but the deposit by the borrower must be proved by the bank and under the Banker's Books Evidence Act, 1891 it was the duty of bank to prove that the amount was deposited by the borrower in his account. He submitted that the deposit of amount of Rs. 300/- on 10-1-1994 in account vide Ex. P-l and Rs. 200/- on 26-3-1994 vide Ex. P-2 must be proved by the bank. He submitted t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....but not further or otherwise. He submitted that so far as claiming period of limitation from the date of deposit is concerned, it was the duty of the bank to prove that the said deposits were made by the borrower or his duly authorised agent. He submitted that the suit has been filed on 19-2-1997. Thus, the said deposit by the borrower as alleged in the plaint must be proved by the hank, but this fact has not been proved by the hank. He invited attention of the Court to the Para 9 of the deposition of P.W. 1 Jagdish Prasad Nagraj, Branch Manager of the Bank, wherein the Branch Manager has admitted that he has filed the photo copy of the agreement which was executed in favour of bank by late Rishabhchand Jain and his guarantors. Original agr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rrower was dead before filing of the suit, therefore denial or admission by the borrower does not arise. Since original borrower was dead, all the more burden was on the bank to discharge that the said amount was deposited by the borrower. It is true that if the period of limitation is extended by subsequent acknowledgment of borrower, then guarantors will also be liable and limitation will be extended against the guarantors but plaintiffs themselves have pleaded that borrower died on 2-11-1995, therefore burden was on plaintiff to prove that the said borrower has deposited the amount. It may be possible that in order to bring the suit within limitation, bank on finding some person who is interested in continuing the suit may deposited the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that the suit is within limitation from the date of deposit of amount on 10-1-1994 and 26-3-1994. But two things which are required to be proved that whether the said deposit was within period of limitation, which has not been discussed by the Trial Court at all and whether the said deposit was by the borrower. If these two facts are proved then it can be held that the suit is within limitation. 8. P.W. 1 Jagdish Prasad Nagraj has deposed that two facilities have been given to the deceased Rishabhchand Jain. One was towards the term loan and another facility was towards cash credit loan. He has admitted in Para 3 of the deposition that Rishabhchand is dead. He has deposed that the factory is in possession of defendant Nos. 1 and 2 in w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sited the amount. This witness has not uttered a word about the date of death of Rishabhchand Jain. P.W. 2 Harishchandra Rajput has deposed that Rishabhchand has applied to him for grant of loan and he was given two facilities. Under the cash credit facility on 2-3-1989 promissory note for Rs. 28,000/- was executed by the borrower and hypothecation deed for Rs. 62,000/- was executed vide Ex. P-11. Guarantee Ex, P-16 was executed by Kasturibai, which bears her thumb impression, whereby the house is mortgaged with the plaintiff bank. Third guarantee is executed by appellants as guarantor. They have signed the guarantee vide Ex. P-17 and the property was mortgaged by the appellants. P.W. 3 Dinesh Kumar Pachnanda has mentioned about the executi....