State Bank Of India v. Mary John

The Original Application has been filed on 02.09.2003 under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 — for short ‘the Act’ - for recovery of the sum of Rs. 45,76,774.35 due under the current account in respect of the bills discounting facility with interest thereon @14.10% per annum with monthly rests from the defendants jointly and severally and by sale of the schedule immovable properties.

2. The case of the applicant as stated in the Original Application in brief is as follows:— The 1 defendant — sole proprietress of M/s. J.K. Trading Corporation carrying on dealership business of rubber in Kerala was enjoying bill discounting facility from the applicant since the year 1989 initially with a facility of Rs. 20 lakhs which was enhanced subsequently to Rs. 25 lakhs, again to Rs. 40 lakhs and later on to Rs. 60 lakhs as per Ext. A1 sanction letter dated 31.10.1996 which was duly countersigned by the defendants in token of having accepted the terms and conditions therein. As security for repayment of the amounts due under the aforesaid facility, the 1 defendant on 30.10.1996 executed Ext. A2 agreement of loan for overall limit, Ext. A3 agreement of hypothecation of goods and assets and Ext. A5 letter regarding the grant of individual limit within the overall limit in favour of the applicant bank agreeing to repay the amount on demand. On the same day i.e., 31.10.1996 the defendants 1 and 2 executed Ext. A4 deed of guarantee for overall limit of Rs. 60 lakhs in favour of the applicant bank personally guaranteeing due repayment of the amounts under the aforesaid facility. The aforesaid facility was granted for one year subject to review after six months when it may be cancelled/reduced depending upon the conduct and utilization of advance. As collateral security to secure due repayment under the bills discounting facility, the 2 defendant had created equitable mortgage of the properties set out under Exts. A6 to A10 title deeds and vide Ext. A11 registered letter dated 04.11.1996 confirmed the creation of mortgage on 31.10.1996 for the above facility as well upon extending the equitable mortgage already created by him on 03.05.1989, 08.09.1990 and 13.02.1991 while availing the earlier loans. The 1 defendant availed the facility. But several bills discounted against the bills discounting facility were returned unpaid and have been debited to the current account in the name of the 1 defendant. In spite of repeated requests and demands made and Ext. A12 lawyer notice dated 13.09.2002 issued by the applicant bank, the defendants did not regularise the overdue amount debited in the current account. However, the defendants on 25.06.1999 and 20.02.2002 executed Exts. A13 and A14 revival letters reviving the account and on 02.04.2002 executed a balance confirmation letter in favour of the applicant, confirming the balance under the current account in respect of the bills discounting facility as on 31.03.2002. The interest rates are subject to revision from time to time as may be decided by the applicant bank in conformity with the stipulation and the present rate of interest is 14.10%. No penal interest has been applied or capitalised in the account. As per Ext. A16 account maintained by the applicant bank in its due course of business and Ext. A17 separate calculation in respect of the interest of loan, as on 31.08.2003 a sum of Rs. 45,76,774.35 under the current account relating to the bills discounting facility is due to it from the defendants jointly and severally and hence the OA.

3. The defendants jointly filed a written statement denying the averments in the OA and contending as follows:— The claim made in the OA is barred by limitation. Exts. A13, A14 and A15 produced in the OA were signed by the defendants while availing the loan without putting the date therein and as such they are documents fabricated by the bank which were not executed on the date mentioned. The defendants had signed at the bottom of page No. 4 of Ext. A1 and had not countersigned in other pages. Ext. A1 sanction letter is manipulated by the applicant bank. It is incorrect to state that hundies were drawn on M/s. Peddar Tyres and M/s. Dunlops India Ltd. when the fact remains it were drawn on M/s. M.D. Rubbers, Ludhiana and M/s. Shiv Rubber Industries, Ludhiana. Ext. A11 document was got signed on printed matter as well as on blank page of the inland at the time when the loan was originally availed and as it does not contain the date on which mortgage was created, there is no valid equitable mortgage as contended. The documents of title produced along with the OA were actually collected by the applicant's then Manager to ascertain the solvency of the 2 defendant and even if there is an equitable mortgage in the year 1989 the applicant's claim of any charge is barred by limitation, as no extension of mortgage is made on the dates mentioned in the OA. It is the primary duty of the applicant bank to intimate about the return of bills unpaid, which has not been done by it in the instant case. Moreover, once the bills are returned unpaid it is the bounden duty of the applicant bank to call for the materials in order to avoid the loss of materials. In the instant case, the applicant bank has not taken any steps to get back the materials covered under the lorry way bills through which the materials were dispatched to the destination. The applicant has neglected and failed to do anything as per the condition of the bill discounting facilities. The applicant is the consignee as per the lorry way bills and all returned bills and the materials covered under the said documents being primary security the bank has a bounden duty to encash it immediately. In the present case, 12 of the bills covered under 12 different hundies and lorry way bills were discounted by the applicant bank which were returned due to non-acceptance by the party. There were seven bills from January, 2001 to May, 2001 amounting to Rs. 16,30,199/- raised in favour of M.D. Rubbers, Ludhiana and five bills between December, 2000 to August, 2001 amounting to Rs. 14,19,836/- raised in favour of Shiv Rubber Industries, Ludhiana which were dishonoured and Ext. A16 statement of accounts shows the dates on which the credits were given in respect of the discounted bills as also the dates when the debits were made when the bills were returned. The defendants are not liable to pay the amount covered under the above twelve bills due to the laches on the part of applicant, as the factum regarding dishonour of such bills was never communicated to the defendants at any point of time. The applicant has not mentioned about the discounting of the bills in respect of M.D. Rubbers and Shiv Rubber Industries and there is no cause of action for the bank to file the above OA. The applicant bank has no right to claim the said amount or any interest on the same and the interest calculated is excessive and unconscionable. The applicant had violated the terms and conditions of loan and not the defendants. Exts. A13 to A15 which are revival letters and confirmation of debit balance have no legal sanctity and are no valid acknowledgments by the defendants. Ext. A16 statement is invalid and inadmissible in evidence as it is not properly authenticated under relevant provisions of law. The statement of account does not reflect the actual amount payable by the defendants. With the above contentions, the defendants prayed for dismissal of the OA with costs.

4. The evidence on the side of the applicant bank consists of the proof affidavits of its Chief Managers, AWs 1 and 2 and Assistant General Manager AW3 along with Exts. A1 to A33. The 2 defendant as DW1 filed counter proof affidavit and additional counter proof affidavit. Exts. B1 to B7 are marked on the side of the defendants.

5.1 On scanning through the pleadings and evidence of both parties and on hearing the arguments that came to be advanced by the Ld. counsel appearing on either side, for determining whether the applicant is entitled to the reliefs claimed for in this OA, the following issues arise for consideration:—

(i) Whether the applicant is entitled to recover from the defendants the OA claim amount emanating from the bill discounting facility?

(ii) Whether the applicant has violated any terms and conditions of the loaning/security documents?

(iii) Whether a lawful equitable mortgage is created by the 2nd defendant over OA schedule immovable properties?

(iv) Whether the defendants had not executed Exts. A13 and A14 revival letters and Ext. A15 confirmation of balance by way of reviving/acknowledging the liability due under the bill discounting facility?

(v) Whether the OA claim is barred by limitation?

(vi) Whether there is any cause of action for filing of the OA?

(vii) Whether Ext. A16 statement of account is not legally valid and is inadmissible in evidence?

(viii) Whether the interest charged is excessive or unconscionable as contended by the defendants?

(ix) What, if any, is the amount due to the applicant bank from the defendants, and the relief and costs?

5.2 Issue Nos.(i) & (ii):—

(i) According to the applicant, the 1 defendant who was enjoying bill discounting facility with it from the year 1989 had been accommodated with the enhanced usance bill discounting facility of Rs. 60 lakhs vide Ext. A1 sanction letter dated 31.10.1996 against the primary security of accepted hundies accompanied by delivery challans and other invoices, personal guarantee of defendants and extension of mortgage of OA schedule immovable properties of 2 defendant. Ext. A2 agreement of loan for overall limit, Ext. A3 agreement of hypothecation of goods and assets, Ext. A4 deed of guarantee and Ext. A5 letter regarding grant of individual limit are loaning/security documents dated 31.10.1996 executed in favour of the applicant by the defendants 1 and 2 as the case may be in respect of the above mentioned bill discounting facility. Pursuant to revival of the said facility by the defendants upon execution of Exts. A13 and A14 revival letters dated 25.06.1999 and 20.02.2002, the 1 defendant was enjoying the said bill discounting facility with the applicant.

(ii) The applicant's case is that several bills discounted against the said facility were returned unpaid and consequently the current account of 1 defendant was debited with the returned/dishonored bill amounts as and when they were returned unpaid. The applicant bank contended further that the 1 defendant was informed about the dishonor of such bills and Ext. A15 balance confirmation letter dated 02.04.2002 was executed by her acknowledging the balance amount due as on 31.03.2002. It is the further case of the applicant that as the 1 defendant violated the terms and conditions of the agreement and failed to meet the repayment obligation despite repeated requests and demands made by it, Ext. A12 lawyer notice dated 13.09.2002 came to be issued and the defendants by way of Ext. A32 reply dated 07.11.2002 admitted the transaction and sought for some more time to discharge the dues. It is submitted further that on the defendants failing to repay the amounts debited in 1 defendant's current account towards the amount outstanding and due in respect of the bill discounting facility, the present OA is filed against them for recovery of the OA claim amount which is lawfully due to it.

(iii) Per contra, the defendants had in their pleadings as also in their course of submissions raised a definite contention as to the applicant having flouted the terms and conditions of the bill discounting facility accommodated to the 1 defendant concern, disentitling it to seek any relief by way of this OA. According to them, the dishonored bills having been purchased by the applicant are its property in so far as the applicant is shown to be the ‘consignee’ in the lorry way bills and pursuant to the discounting of such bills, the bank having accepted the materials covered under the said bills as a primary security has a bounden duty to call back the said materials from the transporters or to enforce/encash the said security immediately by initiating timely action against the carriers or the drawees of such bills as the case may be.

(iv) The Ld. counsel for defendants contended that the fact of dishonor/return of 12 bills covered under 12 different hundies and lorry way bills discounted by the applicant bank, had not been intimated to the defendants by the bank at any point of time. Of the 12 dishonored bills, it was submitted on the side of the defendants that 7 bills were raised in the name of M/s. M.D. Rubbers, Ludhiana during the period January 2001 to May 2001 amounting to Rs. 16,30,199/- and 5 other returned bills were raised in the name of M/s. Shiv Rubber Industries, Ludhiana during the period December 2000 to August 2001 amounting to Rs. 14,19,836. Due to non-mentioning about the discounting and return of such bills by the applicant in this OA, it is submitted that the applicant is not entitled to recover the same from the defendants.

(v) It is the definite case and contention of the defendants that the OA claim emanating from such dishonored bills, the non-production of the bills, lorry way bills and corresponding hundies are fatal to the applicants' claim and in any event as the bank had not appropriated the primary security on account of its gross default, it is not entitled to press for any reliefs in this OA. Ld. counsel for the defendant urged this Tribunal to draw adverse inference as against the bank for non-production of the material and vital documents like dishonored bills despite my predecessor in office observing about it in the proceedings dated 27.04.2007.

(vi) Ld. counsel for the defendants emphatically contended that the applicant had deliberately refrained from production of lorry way bills in this case as it would expose to light the factum of the bank been shown therein as the ‘consignee’ having privity of contract with the carrier, as also its bounden legal duty to sue the carrier for not returning the materials/goods back to the bank which it is obligated to part to the drawees only on their acceptance and remittance of the proceeds of the bills. It was pointed out on the side of the defendants that the applicant which had no pleadings in the OA as regards the missing of the dishonored bills, lorry receipts etc., had only in their counter affidavit filed in the year 2015 vaguely stated as if the said documents could not be traced out from and out of the files pertaining to various cases got transferred to SARC of the applicant that came to be established subsequently.

(vii) Ld. counsel for the defendants also submitted that on the mere production of Ext. A32 reply notice dated 07.11.2002 caused by the defendants counsel, the applicant's onus to prove the OA claim arising out of the bill discounting facility would not be discharged, more so for the reason that there is nothing indicative therein about the admission of debt by the defendants as contended by the applicant.

(viii) Mr. George Thomas Mevada, Ld. Senior Advocate appearing for the bank vociferously contended that none of the defendants' above submissions deserve consideration of this Tribunal as they have come to be made without any respectability for truth. Ld. Senior counsel strenuously submitted that the factum of dishonor/return of bills was intimated to the defendants on many occasions and invited the attention of this Tribunal to Ext. A18 registered letter dated 01.06.2002 sent by the applicant to the 2 defendant divulging therein about the correspondences, telecons and discussions in person which the bank officials had with the defendants on several occasions with regard to their indebtness to the bank on account of the dishonored bills pertaining to the 1 defendant concern and their two other concerns. Ld. Senior counsel pointed out to the reference made in Ext. A18 letter as regards the list of dishonored bills enclosed therewith in respect of M/s. J.K. Trading and the defendants' repeated assurance made in vain for the past 6 months with regard to the regularisation of the said accounts.

(ix) Ld. Senior counsel appearing for the bank took this Tribunal through running page No. 129 of the OA paper book and pointed out the balance shown as due as on 31.03.2002 in Ext. A16 statement of account to be one in consonance with the balance amount confirmed by the 1 defendant in Ext. A15 balance confirmation letter dated 02.04.2002. This Tribunal also incidentally found the outstanding amount due (i.e., 38.56 lakhs) shown in the applicant's Ext. A18 letter dated 01.06.2002 to be in conformity with the balance amount shown as due as on 31.05.2002 in Ext. A16 statement of account.

(x) The applicant bank also urged the Tribunal to see Ext. A33 letter dated 04.07.2002 sent by the 1 defendant, wherein she has categorically admitted as to her business concern enjoying a bill discounting facility of Rs. 60 lakhs with the applicant bank and some bills having been dishonored during the past one or two years due to failure of the parties. In the said letter, the 1 defendant had set out the details of dishonored bills and stated further as follows:—

“The details of the dishonored bills are as follows:—

M/s. DebDip Tyers (P) Ltd (Vebross Freight Carriers Ltd.) DATE INVOICE NO L/R NO HUNDI NO HUNDI AMOUNT 18/12/2000 48 29156 01/00-01 326,858.00 326,858.00

M/s. Shiv Rubber Industries (Indo Arya Central Transport Ltd) DATE INVOICE NO L/R NO (SOUTHASSAM) HUNDI NO HUNDI AMOUNT 13.12.00 46 187/3745 04/00-2001 256,926.00 22.12.00 51 187/3752 05/00-2001 269,798.00 22.12.00 52 187/3753 06/00-2001 269,798.00 01.08.01 24 187/3879 02/01-2002 301,860.00 01.08.01 26 187/3880 03/01-2002 321,394.00 1,419,776.00

MD Rubbers (Indo Arya Central Transport Ltd.) DATE INVOICE NO L/R NO (SOUTHASSAM) HUNDI NO HUNDI AMOUNT 26.02.01 74 187-3778 08/00-01 262,717.00 10.03.01 75 187-3779 09/00-01 260,663.00 23.04.01 5 187-3865 01/01/2002 259,097.00 26.04.01 7 187-3838 02/01/2002 270,930.00 02.05.01 8 187-3839 03/01/2002 288,896.00 05.05.01 9 187-3840 04/01/2002 288,896.00 1,631,199.00

Since the part is note making payments the transporter who had supplied material to them have been asked to return the material and legal notice has already been issued to the following transporters in this regards; Viz.,

Indo Arya Central Transport Ltd.,

Vebross Freight Carriers (P) Ltd.,

It is expected that since the above transporters enjoy very good reputation in the market, will force the parties to make the payment or they will be forced to return the material through legal action. The money generated by the sale of the above material will be sufficient enough to clear the bank dues.

Considering all three facts it is prayed that no legal action should be taken.

Thanking you,

Yours truly,

J.K. TRADING CORPORATION

Proprietress”

(xi) It was vehemently argued on the side of the applicant that merely for the reason of the 1 defendant having shown the name of the bank as ‘consignee’ in the lorry receipt, hundies or invoices, the bank which is not a party in preparation of such documents cannot be compelled to sue the carriers or the drawees of such bills as the case may be, though, the bank may have a right under law to sue the carriers or transporters going by any enabling clauses or terms found in such lorry receipts. Ld. counsel for the bank submitted that it is the 1 defendant/consignor who obtains lorry receipts or draws hundies and bills and merely for the reason, the bank's name is shown as ‘consignee’ therein the bank cannot be stated to have entered into any contract with the carriers independent of the one entered by and between the applicant and defendants. It was persuasively pleaded that even if any power or right to sue vests with or enures to the benefit of the bank by virtue of such lorry receipts, the applicant is not legally obligated to pursue such recourse alone at the beck and call of the defendants. On the side of the bank it was urged to appreciate that the defendants are personally, jointly and severally liable to pay to the applicant the amounts outstanding towards the dishonoured bills debited in the 1 defendant's current account, the 1 defendant being the consignor/drawer of such bills and the 2 defendant being the guarantor.

(xii) Ld. Senior counsel appearing for the applicant forcefully submitted that the defendants are bound by the terms and covenants agreed upon by them with the applicant in Exts. A1 to A5 loaning/security documents. The defendants as well placed reliance on Clause (44)(d) provided in Ext. A2 agreement of loan for overall limit wherein the bank is held to have good title to the bills discounted and could deal with such bills as the holder thereof. The terms and covenants agreed upon by the 1 defendant in Ext. A2 loan agreement which are relevant for the purpose of adjudication of this case is extracted out hereunder:—

“25. [4] The Borrower shall indemnify the Bank [i] against all losses, costs damages expenses whatsoever that the Bank may incur or sustain by reason of the Borrower's act, default or omission of the Borrower's servants or employees or other persons acting on behalf of the Borrower in respect of goods movables and other assets pledged to the Bank and released to the Borrower on trust; [ii] against all losses, costs, damages, expenses or consequences whatsoever that the Bank may incur or sustain as a result of the Bank's complying with the Borrower's instructions to deliver to the borrower or to the Borrower's clearing agents the documents covering the goods movables and other assets [a] whether or not the said documents are in order; [b] notwithstanding any discrepancies that may be present in document's and; [c] notwithstanding any discrepancy between the price/Value, quantity and quality of the goods movables and other assets covered by the documents and price, quantity and quality specified interest he contract; and [iii] against all consequences losses and damages that may arise as a result of the Bank's complying with the Borrower's requests to effect advance payments from time to time to the suppliers [a] whether or not the suppliers consign the goods movables and other assets; [b] whether or not the documents in respect thereof are received by the Bank; and [c] not withstanding any discrepancy between the quantity or quality of the goods movables and other assets received from the suppliers and that of the contracted quantity and quality.

41. The bank shall not be under any liability whatsoever towards the Borrower or any other person for verification of the quantity and/or quality of any goods movables or other assets shown interest he relevant invoices statements or other documents notwithstanding that it may have taken possession of such goods movables or other assets by way of hypothecation pledge or otherwise or for any loss or damage to the goods, movables and other assets and other documents and given as security from whatever cause or in whatever manner arising whether such goods movables or other assets shall be in the possession of the bank or not at the time of such loss or damage or the happening of the cause thereof. The borrower doth and shall at all times indemnify and keep indemnified the bank from and against all actions, suits, proceedings, costs, charges, claims, and demands whatsoever that may at any time arise or be brought or made by any person against the bank in respect of any acts matters and things lawfully done or caused by the Bank in connection with the said goods movables and other assets or in pursuance of the rights and powers of the bank under this Agreement or other security documents. No responsibility will lie with the bank in respect of the quantity, quality or condition or on whatever account on final out-turn of the goods movable and other assets in possession of the Bank under this Agreement or under security documents between the Bank and the Borrower including goods movable and other assets which may have come into the possession of the Bank by the Bank exercising any of its rights under this Agreement or any security documents or otherwise and/or respect final order the correctness, validity, sufficiency or genuineness of any of the documents relating thereto.

43. In respect of advance granted by the Bank to the Borrower by way of purchase/negotiation/discounting of clean/documentary/demand/usance bills of exchange drawn by the Borrower on his/its/their various customers and expressed in foreign currency or Indian rupees and whether under letters of credit or otherwise and/or in respect of said bills tendered for collection the borrower agrees and covenants with the Bank as under;

(a) xxxxxxxxx

(b) that the bills shall be drawn with usance, ordinarily, of not exceeding 90 days.

(c) xxxxxxx

(d) that at the time of offering upcountry usance bills for discount the bills shall be accompanied by railway receipts or motor transport receipts of approved Transport Companies together with the relative original invoices and that the documents will be delivered to the drawees only after the bills are accepted;

(e) that in the case of local sales, bills shall be accompanied by copies of invoices bearing acknowledgements of the purchasers in token of their having received the goods and shall be offered for discount only after acceptance of bills by the drawees;

(f) that upcountry or local bills will not be collected by the Borrower through other banks;

(g) that the Borrower shall ensure that upcountry bills are accepted by the drawees on presentation and retired on due dates. In the event of the bills remaining unaccepted on presentation or unpaid on due dates, the Bank shall be entitled to recover the amount of such bills along with overdue interest and other incidental charges by debit to the accounts of the Borrower.

(m) the Bank may send the bills either by registered acknowledgment due post or registered post or ordinary post or by any courier service, as is decided by the Bank in its discretion to any of its own officers or to any of the Scheduled Banks (reference being to Schedule II of the Reserve Bank of India Act, 1934) or other Commercial Bank and/or Co-operative Bank or directly to the drawees at the Borrower's risk and responsibility as to the losses if any on the bills or the proceeds of the bills or of the goods represented by the bills due to any cause whatsoever and the Borrower agrees to hold the Bank harmless and indemnified from and against all consequences that may arise from its doing so and from and against all losses, charges and expenses in sending the bills accepted under these arrangements in the manner aforesaid;

(p) the Borrower shall repay the Bank's advances within such number of days as may be stipulated by the Bank of the utilization of the advances by the Borrower on each occasion whether or not the payment of the said bills/invoices is received by the Borrower or if the bills are returned unpaid for any reason whatsoever the Borrower shall reimburse the Bank immediately on receipt of the Bank's advice;

(t) where the drawees return unpaid the bills/invoice to the bank and the Bank's acceptances thereof shall be without prejudice to its right to recovery of the amounts covered by the bills/invoice from the borrower.

44 (d) The Borrower declares and confirms that on the Bank discounting the Bills the Bank will have good title thereto and will be entitled to have the Bills rediscounted with Reserve Bank of India, Discount and Finance House of India Limited, any scheduled commercial bank or any other approved financial institution or otherwise deal with the Bills as the holder thereof.

(e) The Borrower further confirms that notwithstanding anything to the contrary contained in any documents or letters written by the Borrower to the Suppliers or by the Suppliers to pay to the Borrower, the Borrower shall be irrevocably, absolutely and unconditionally liable to the Bank amounts of the Bills discounted with the Bank at the maturity of such Bills.

(f) The Borrower agrees, declares and confirms that the Borrower will be liable to the Bank as aforesaid on the bills and that the Bank shall be entitled to enforce all its rights against the Borrower as the holder of such bills and that the Borrower shall continue to be so liable notwithstanding any claim, right, dispute or litigation arising or which may arise between the Borrower and the Suppliers/Drawers.

50. The Bank shall not be responsible for any damage caused to goods, movables and other assets in course of transit covered by the Bills accepted by the Bank as security or for loss of the goods, movables and other assets or for delayed delivery, short delivery or wrong delivery of goods, movables and other assets or for delayed or wrong presentation of bills to Paying Authorities or Drawees for any reason whatsoever and in case the bills are sent for collection direct to other Banks or Bankers or Government Departments/Agencies/Institutions or quasi-Government bodies/public sector undertakings, Railways or other parties or the Borrowers' customers the Bank shall not be responsible for the non-receipt by it of the remittance representing the proceeds of the bills and the relative bills will be collected entirely at the Borrower's risk and responsibility. The Borrower shall be responsible for the costs and charges incurred by the collecting Bank or Bankers in this behalf and shall pay the Bank these costs and charges.”

(xiii) Mr. George Thomas Mevada, Ld. Senior Advocate appearing for the bank strenuously submitted that the defendants having filed criminal complaints as against the carriers and the drawees of the bills as is evident from Exts. A20 to A25/Exts. B4 and B5 complaints admitting the availment of bill discounting facility from the applicant as also the discounting of bills raised in favour of the consignees named in the said criminal proceedings cannot be heard to contend anything contra to the above admissions.

(xiv) From Ext. A33 letter dated 04.07.2002 sent by the 1 defendant, as also the pleadings found in her criminal complaints filed against the carriers/drawees of bills and her written statement filed in this OA, it could be discerned without any room for doubt that the 1 defendant herein had availed the bill discounting facility with the Commercial Branch of the applicant and had consequently discounted the bills raised in the names of the drawees namely viz., M/s. Debdip Tyres (p) Ltd. to the tune of Rs. 3,26,858/-, M/s. Shiv Rubber Industries to the tune of Rs. 14,19,776/-, M/s. M.D. Rubbers to the tune of Rs. 16,30,199/- and M/s. Thirupathy Tyres (p) Ltd. to the tune of Rs. 6,23,254/-. It has been specifically averred in the said complaints by the 1 defendant concern that they had come to know from the applicant bank about the non-acceptance of such bills by the drawees as also regards the bank debiting the bill amounts to the 1 defendant's account. It is the 1 defendant's further case in her above said criminal complaints that she had come to know about the collusion of the carriers and the drawees resulting in taking delivery of goods by the latter without making any payment to the bank and without producing the lorry receipts to the carrier.

(xv) Going by the 1 defendant's version and submissions made in the above Court proceedings, the factum of the applicant bank's timely information given to the 1 defendant as regards dishonor/return of such bills comes to the fore and it is only futile on the part of the defendants to make a dubious claim as if the bank had committed fault on its part in having not initiated timely action and having not informed the defendants about the returned bills at any point of time. Further to that, as admitted by the defendants themselves in para 10 of their written statement, the Tribunal finds in Ext. A16 statement of account the corresponding credits and debits in respect of the bills discounted and bills returned on its respective dates, which is very much in consonance with the facts admitted by the 1 defendant as regards discounting of the bills with the applicant bank in the criminal complaints referred to above.

(xvi) The submission made by the Ld. counsel for defendants as to Ext. A32 reply notice dated 07.11.2002 caused by them not indicating anything as to their admission of debt did not impress this Tribunal going by the fact that the defendants had besides admitting the entire transactions set out in the applicant's Ext. A12 lawyer notice dated 13.09.2002, requested the bank for granting some more time for remitting the amount due to the bank. Ext. A32 reply notice caused by the defendants' counsel Sri. A.C. Thomas Adhikaram, B. Com, LLB is extracted below:—

REPLY NOTICE

Date 7-11-2002

George Varghese Narayenparambil,

Advocate,

Sayeed Complex,

Doraiswamy Iyer Road,

Ernakulam, Kochi — 35.

With reference to your notice dated 13-9-2002 (posted on 11-10-2002) to my clients (1) M/s. J.K. Trading Corporation, Ernakulam (2) Smt. Mary John, Proprietress, J.K. Trading Corporation, Paingattoor (3) Sri. Johny Paul, Kalathil House, Paingottoor, Kothamangalam, I have been instructed to send the following reply to you.

1. The transaction mentioned in your notice are admitted by my client.

2. My client have sent raw rubber under consignment through different carriers to different rubber companies. Lorry receipt of each consignment was entrusted with bank. It was specifically contracted with the carriers that the goods shall be delivered to the consignee only after the receipt of lorry receipts and letter from the concerned banks, on payment of the bill amount to the bank.

3. On enquiry, my clients came to know that the carriers and the consignee companies colluded together and delivered the goods to the consignees, without making payment to the Bank and without the receipt of lorry receipts. The consignees were also agreed that they will accept all the bills by making payment. On their assurances, my client have sent the goods. Actually, the carriers committed criminal breach of trust and the consignee companies committed cheating.

4. Immediately, after the receipt of information of the above said facts, my clients have filed private complaints before the Judicial Ist Class Magistrate Court, No. II, Muvattupuzha, against the carriers and consignees for the offence punishable under Section 407 and 420 IPC respectively. All the complaints were forwarded to the S.H.O., Pothanicadu police station and are pending investigation.

5. Since my clients have not received any amount from the said transactions, they are not in a position to clear off the entire debts due to the bank.

6. My clients are under the belief that the consignees will settle the matter with my clients within a reasonable time. Remittance will be made as and when my clients received the said amount. Now my clients sought some more time for remitting the amount due to the bank.

These being the facts, kindly advised your client accordingly.

Adv. A.C. Thomas Adhikaram.

(xvii) As rightly pointed out by the Ld. Senior Counsel for the bank, in the Ext. A32 reply, the defendants had not disputed the amount claimed in Ext. A12 notice even by a rupee and had only stated therein that they are under the belief that the consignees will settle the matter with them within a reasonable time and remittance will be made as and when they received the said amount. Ld. Senior Counsel appearing for the bank upon adverting to the referral reports (Exts. A27 to A31) which is found to be in Malayalam submitted that the bank is given to understand therefrom that the Inspector of Police had found the case to be false and the applicant has every reason to suspect that the defendants had since then received the money for the consignments in issue from the drawees directly. On the side of the bank it was succinctly pointed out that the defendants who could/should have filed civil suits for recovery of monies if still due and payable to them by the consignees or carriers as the case may be, had strangely and for reasons only known to themselves have not initiated any such action for recovery.

(xviii) Ld. Counsel for the defendants refuted the said contentions of the applicant by adverting to the judgments produced vide Exts. B1 to B3 in Criminal Appeal Nos. 400/2012, 401/2012 and 404/2012 wherein the conviction recorded by the Trial Court against the respective carriers had been upheld and the carriers consequently proceeded with payment of fine vide Exts. B6 and B7. Be as it may, from the above narrated facts and the evidence placed for consideration, it is only established that the defendants had concededly discounted the bills reflected in Ext. A16 statement and the liability so crystallized had been further admitted by them vide Ext. A15 balance confirmation letter, Ext. A33 letter dated 04.07.2002 and the pleadings of the 1st defendants in the criminal complaints as also the written statement in this OA.

(xix) I anxiously pondered over the defendants' contention as to whether the non-production of the respective dishonoured bills, lorry receipts and hundies would be fatal to the applicant's case and claim put forth in this OA in the backdrop of the observation as regards non-production of the dishonoured bills recorded by my predecessor-in-office in the proceedings dated 27.04.2007. Going by the preceding factual narrative and the evidences placed by the applicant as well as the defendants in this case, this Tribunal could only arrive at an inevitable conclusion that the applicant bank is entitled to recover the amounts due and payable to it by the defendants towards the bills discounting facility concededly availed/enjoyed by the 1 defendant concern pursuant to their execution of Exts. A1 to A5 loaning/security documents and Exts. A12 to A15 revival letters/balance confirmation letter.

(xx) The Tribunal of course is not appreciative of the applicant's casual submission as to missing of such vital documents it being not expected of from a nationalized bank like the applicant and is of the definite view that the production of such documents would have been ideal and appreciable in a case of the present sort going by the defendants' persistent demand for production of it. However, as the factum of discounting/dishonour of the bills in issue stood proved by the other evidences narrated supra as also the categorical admission made by none other than the defendants themselves vide their aforesaid criminal complaints, pleadings in para 10 of their written statement in this OA, Ext. A32 lawyer's reply notice dated 07.11.2002 and Ext. A33 letter dated 04.07.2002, the applicant's OA claim stood substantiated despite the non-production of such dishonoured/returned bills and therefore the applicant is definitely entitled to recover the amounts debited in 1 defendant's current account towards the liability arising from the bill discounting facility.

(xxi) The Tribunal is placing respectful reliance on the judgment rendered by the Hon'ble Supreme Court in the case titled Punjab and Sind Bank v. C.S. Company reported in (2012) 2 SCC 743 wherein a case akin to the present one has come to be authoritatively decided. The relevant portion of the said judgment is reproduced hereunder:

“12. The High Court has non-suited the Plaintiff-bank primarily on the ground that the Plaintiff-bank has not produced originals of the Bank Guarantees and it has not adduced any secondary evidence after giving explanation as to the non-production of the originals (Roman Catholic Mission……………The High Court was impressed by the case of the Defendants that the title deeds were forwarded to the Plaintiff-bank for scrutiny and it virtually come to the conclusion that there was no deposit of title deeds as security for the Bank Guarantees. It was impressed by the Defendants' case that the Plaintiff-bank had concocted the documents.

13. We need to ascertain how far the Defendants' case is truthful. They admit the Plaintiff-bank's basic case, but try to evade their liability to pay through their inconsistent, contradictory and evasive stand. From the narration of the written statements of the Defendants, it is clear that so far as Defendants 1, 2, 3 and 4 are concerned, they have clearly admitted issuance of the Bank Guarantees. ………They have denied that any mortgage was created in favour of the Plaintiff-bank and they contended that they do not admit the Deed of Indemnity and Counter Guarantee dated 11/5/1983 ……… Their case, however, is that the title deeds were sent for scrutiny. It is not understood for what purpose the scrutiny of the title deeds was necessary and done. …… They contended that all the documents were fabricated by the Plaintiff-bank by utilizing the signed blank papers taken from them by the Plaintiff bank. Thus, they denied that any equitable mortgage was created as security for the Bank Guarantees. Similarly, Defendants 6 to 8 denied that any equitable mortgage was created. They came out with the case that the Deeds of Indemnity, Counter Guarantees, Memoranda of deposit of title deeds and Confirmation Letters were fabricated by the Plaintiff-bank by using the blank signed papers taken from them on or about 11/5/1983 when the first Bank Guarantee for Rs. 1 lakh was issued in favour of KSEB.

14. The Defendants' case regarding blank signed papers is not substantiated by any evidence except their say so. The trial court has rightly rejected this story and we concur with the trial court. Apart from the fact that there is nothing on record to establish the case of the Defendants that the plaintiff-bank was party to such a fraud of creating fabricated documents after obtaining blank signed papers from the Defendants, it also does not stand to reason that the Defendants and its partners and other Defendants are so gullible as to hand over to the Plaintiff-bank several signed blank papers. Falsity of their case is seen from the documents on record.

15. The title deeds are at Ex-A39 to Ex-A43, Ex-A45 to Ex-A48, Ex-A53, Ex-A54 and Ex-A63. The tax and revenue receipts relating to the properties are at Ex-A57 to Ex-A62, Ex-A65 and Ex-A67. Encumbrances certificates upto April, 1983 are at Ex-A44, Ex-A49, Ex-A50, Ex-A51, Ex-A55, Ex-A56, Ex-A64 and Ex-A66. Confirmation letters regarding deposit of title deeds are at Ex-A24, Ex-A30, Ex-A34 and Ex-A72. We have carefully perused these letters. It is impossible to come to a conclusion that the Plaintiff-bank has fabricated these letters on the blank signed papers allegedly given to it by the Defendants. There is no manner of doubt that they are genuine documents. There are Memoranda of deposit of title deeds duly signed by the Defendants giving details of the properties. They are at Ex-A9 to Ex-A15, Ex-A22, Ex-A23, Ex-A25, Ex-A26, Ex-A28, Ex-A29, Ex-A32 and Ex-A33. We have seen these exhibits also. We are convinced that they are genuine documents. The Defendants have not been able to give any valid acceptable explanation as to how so many original title deeds came in the custody of the Plaintiff-bank. ……………Even assuming without admitting that some blank papers with their signatures were taken by the Plaintiff-bank from them, unless they were concerned with the Bank Guarantee, such documents would not be demanded from them nor would they have given such documents to the Plaintiff-bank. ………We concur with the trial court that all these documents cut at the very root of the defence regarding the non-existence of the equitable mortgage. The case of the Defendants that there was no equitable mortgage will have to be, therefore, rejected.

18. Perhaps the most significant piece of evidence which has not been noticed by the trial court and though referred to by the High Court but not appreciated by it, is the letter dated 7/7/1984 (Ex-A6) in which the Managing Partner of Defendant 1 has admitted execution of Bank Guarantees and expressed willingness to pay the amount. This is a letter written by Defendant 1 to the Plaintiff-bank in response to the demand notice dated 23/6/1984 issued to Defendant 1. DW-1 in his evidence has admitted that the said letter (Ex-A6) was written by Defendant 1.

19. ……… Once Defendant 1 admits execution of the Bank Guarantees and expresses its desire to repay the amount and when Counter Guarantees, number of title deeds, encumbrance certificates and confirmation letters are on record, in the facts of this case, decree must follow. In our opinion, the conduct of the Defendants needs to be deprecated. After having taken the benefit of the Bank Guarantees, the Defendants have tried to persuade the court to absolve them of the liability to repay the amount by taking up untenable and false contentions. ………. We must, however, express our extreme displeasure about the conduct of the officers of the Plaintiff-bank. The Plaintiff-bank is a nationalized bank. It is surprising how the originals of the Bank Guarantees could not be produced by it in the trial court. Such conduct is not expected from the officers of the Plaintiff-bank who deal with public money. They have dealt with this matter with extreme casualness.”

(Emphasis is mine)

(xxii) The Tribunal proceeded to consider whether the bank has violated any of the terms and covenants contained in Ext. A2 agreement of loan for overall limit dated 31.10.1996 disentitling it to recover the OA claim amount from the defendants. The clauses and covenants extracted out supra are explicit and categorical to the effect that the bills shall be drawn with usance ordinarily of a period not exceeding 90 days, that the borrower shall ensure the bills are accepted by the drawees on presentation and retired on due dates, that the bank shall be entitled to recover the amounts of such bills along with overdue interest and other incidental charges by debiting it to the account of the borrower, that the borrower agrees to hold the bank harmless and indemnified from and against all consequences, losses, charges and expenses that may arise or occur in sending the bills accepted under the said arrangement, that the borrower shall repay the bank's advances within such number of days as may be stipulated by the bank whether or not the said bills/invoices is received by the borrower or if the bills are returned unpaid for any reason whatsoever and that the borrower will be liable to the bank which shall be entitled to enforce all its rights against the borrower as the holder of such bills notwithstanding any claim, dispute or litigation arising between the borrower and the suppliers/drawers. Clause 43(t) of Ext. A2 specifically provides that where the drawees return unpaid the bills/invoice to the bank, the bank's acceptance thereof shall be without prejudice to its rights to recover the said amount from the borrower and clause 50 contained therein is to the effect that the bank shall not be responsible for loss of the goods due to wrong delivery of it to drawees for any reason whatsoever and the bank shall not be responsible for the non-receipt by it of the remittance representing the proceeds of the bills and the relative bills will be collected at the borrower's risk and responsibility.

(xxiii) On a conspectus of the aforesaid specific clauses and covenants contained in Ext. A2 agreement and in view of the foregoing discussion, the Tribunal arrives at an inescapable conclusion that the bank is entitled to recover the outstanding amount due under bill discounting facility from the defendants - the borrowers/consignors of such bills and sees no reason to hold that the bank had violated any of the terms and conditions thereof. Accordingly this issue is thus decided in favour of the applicant.

5.3 Issue No. (iii):—

(i) The defendants had contended in their written statement as if the documents of title in respect of OA schedule immovable property were actually collected by the applicant's then Manager to apprise himself about the solvency of 2 defendant and no valid equitable mortgage have come to be created in favour of the bank as claimed by it. The defendants further contended that even if there was an equitable mortgage in the year 1989 in view of there being no extension of mortgage on the dates mentioned in the OA, the bank could not claim any mortgage charge over the subject property as it is clearly barred by limitation. The defendants also contended that as no date of equitable mortgage is mentioned in Ext. A11 - EM confirmation letter, the said document cannot be considered as an extension of mortgage already created in the year 1989. The defendants though had taken such contentions in their pleadings, had no serious submissions to be made in the above regard in the course of their arguments.

(ii) The Tribunal still delved into the defendants' such submissions to ascertain as to whether the 2 defendant had not created equitable mortgage in favour of the bank and had not extended the benefit of it to the enhanced bill discounting facility of Rs. 60 lakhs accommodated to the 1 defendant concern in the year 1996. Ext. A1 sanction letter dated 31.10.1996 discloses stipulations regarding the equitable mortgage of the OA schedule immovable properties, apart from the requirement for obtention of sureties of the defendants and primary security of the hundies to be drawn on consignees. Merely for the reason of the defendants 1 and 2 countersigning only in page No. 4 of Ext. A1 sanction letter dated 31.10.1996, they cannot be permitted to disown the other terms and conditions set out in the first three pages of the said letter for the purpose of conveniently feigning ignorance of the terms agreed by them with regard to the property offered as security, interest rate and so on.

(iii) A mortgage by deposit of title deeds in terms of S. 58(f) of the Transfer of Property Act is lawfully created by the act of a debtor in delivering or submitting his title deeds with the creditor at a notified town with an intent to create a security thereon. In the instant case, Exts. A6 to A10 documents of title are handed-over to the bank as security and Ext. A11 confirmation letter dated 04.11.2016 sent by registered post by the 2 defendant to the applicant is further evidential of the fact that he had extended the benefit of mortgage by deposit of title deeds for the usance bill discounting facility which stood enhanced to Rs. 60 lakhs from Rs. 40 lakhs. As Ext. A11 confirmation letter dated 04.11.1996 divulges the factum of the 2 defendant calling on the applicant on 31.10.1996 for declaring that the benefit of mortgage by deposit of title deeds shall apply, stand extended to and cover the enhanced limit of Rs. 60 lakhs, the non-mentioning of the earlier date of EM in the said letter by itself is of no consequence.

(iv) The factum of 2 defendant creating mortgage of the OA schedule immovable properties for the enhanced credit limit of Rs. 60 lakhs accommodated to 1 defendant's business concern was reiterated by the bank in its Ext. A12 lawyer notice dated 13.09.2002, making it known to the defendants that if the amount claimed therein towards the discounted bills are not remitted the bank would be forced to initiate legal steps against them and their properties. The defendants who had caused Ext. A32 reply notice dated 07.11.2002 through their lawyer had admitted in unequivocal terms as to all the transactions set out in Ext. A12 notice to be true. Therefore it only appears to be an effort in vain on the part of the defendants to turn around and contend as if no valid equitable mortgage was created by 2 defendant in favour of the applicant. Had it been true that the title deeds were handed over by the 2 defendant to the then Manager of the applicant only for the purpose of ascertaining his solvency, nothing would have precluded them from demanding and obtaining return of such title deeds all these years. The Tribunal wherefore holds that the applicant is possessed of a lawful equitable mortgage over the OA schedule immovable property and the defendants cannot be now heard to say anything contrary to the same.

5.4 Issue No. (iv) & (v):—

(i) According to the applicant, the 1 defendant availed the enhanced bill discounting facility of Rs. 60 lakhs pursuant to the defendants' execution of loaning/security documents on 31.10.1996 in favour of the applicant, which was subsequently revived on 25.06.1999 and 20.02.2002 upon execution of Exts. A13 and A14 revival letters respectively. It is also the case of the applicant that the equitable mortgage created by 2 defendant on 03.05.1989 securing repayment of the earlier loans was extended from time to time, as also on 31.10.1996 as evidenced by Ext. A11 confirmation letter dated 04.11.1996 sent by 2 defendant to the applicant bank. The applicant also relies on Ext. A15 balance confirmation letter dated 02.04.2002 to prove their contention that the OA is filed well within the period of limitation.

(ii) Per contra, the defendants definitely contended that Exts. A13, A14 and A15 produced along with the OA were got signed from the defendants by the applicant bank while availing the loan without putting the date and filling any columns therein. They contended further that the said exhibits are documents fabricated by the bank for the purpose of defeating their legal rights. As per the defendants' version, Exts. A13 to A15 have no legal sanctity and in so far as the applicant bank claims creation of equitable mortgage in its favour as early in the year 1989, the above OA is barred by limitation in the backdrop of the 2 defendant's specific denial as regards his execution of any extension of mortgage including Ext. A11 letter dated 04.11.1996.

(iii) The Tribunal finds that the defendants do not deny or dispute the signatures of the 1 defendant in Exts. A13 and A14 revival letters and Ext. A15 balance confirmation letter, as also the signatures of the 2 defendant in Ext. A11 - EM confirmation letter dated 04.11.1996 and Exts. A13 and A14 revival letters. The defendants have no case or contention as to they not executing the other loaning/security documents while availing the OA subject bill discounting facility. It is however the definite case of the defendants that their signatures on Exts. A11, A13 to A15 have come to be obtained by the applicant bank on blank printed forms while availing of the original loan without mentioning any date therein and was subsequently misused by fabricating it to be revival letters or confirmation letters as the case may be to suit their convenience.

(iv) Mr. George Thomas Mevada, Senior Advocate appearing for the applicant took strong exception to such submissions that came forth from the side of the defendants and took this Tribunal through Ext. A1 sanction letter dated 31.10.1996 issued by the then Ernakulam Branch of State Bank of India and Exts. A13 & A14 revival letters dated 25.06.1999 and 20.02.2002 as also Ext. A15 balance confirmation letter dated 02.04.2002 executed by the defendants in favour of the Commercial Branch of State Bank of India, to which the loan account had by then stood transferred. The defendants' version that Exts. A13 to A15 have come to be fabricated with their signatures obtained on blank printed papers while availing of the loan say in the year 1996, is only to be disbelieved going by the applicant's aforesaid submission that the bill discounting facility granted by Ernakulam Branch of SBI in the year 1996 had since been transferred to its Commercial Branch prior to the year 1999, which is further evident from the seal of Commercial Branch found affixed in Exts. A13 and A14 respectively.

(v) That apart, Exts. A13 and A14 revival letters dated 25.06.1999 and 20.02.2002 as also Ext. A15 balance confirmation letter dated 02.04.2002 under any stretch of imagination could not be held to be the documents obtained at the time of availing of the loan in the year 1996 for more than one reason. The said documents besides bearing the rubber stamp and seal of Commercial Branch, Ernakulam, are itself the forms printed at different point of time, going by the further glaring fact that Ext. A14 revival letter is seen executed on a printed format having the numeric ‘20’ printed on it signifying the year commencing from 2000 onwards. Instead Ext. A13 revival letter form is seen to contain the numeric ‘19’ printed on it signifying the year/period of use of such forms by the bank in its normal course of banking business. Ext. A15 balance confirmation letter dated 02.04.2002 is found to have been executed by the 1 defendant on a form containing the address of applicant's Commercial Branch divulging the debit balance amount as on 31.03.2002 in consonance with the debit balance shown as due in Ext. A16 statement of account. All these only go to prove the applicant's case that the defendants' allegation as to their subscribing of signatures alone on Exts. A13 to A15 blank printed forms while availing of loan, smacks of malafides.

(vi) The defendants' other allegation that Ext. A11 letter dated 04.11.1996 could not be considered as an extension of mortgage also does not impress the Tribunal for the reason of it giving a finding supra as to the 2 defendant creating a lawful equitable mortgage in favour of the applicant bank. In view of the above, the Tribunal has no hesitation to hold that Exts. A11, A13 to A15 are properly and validly executed by the defendants as the case may be on the respective date it bears and the defendants' contention as to their signatures alone been taken on the said documents while availing the original loan only appears to be farce.

(vii) Ld. counsel for the defendants also contended that in so far as Ext. A1 sanction letter dated 31.10.1996 is stated to have been issued by sanctioning the bill discounting facility for one year subject to review after six months, the claim made by the applicant in this OA in respect of the bill discounting facility accommodated between the year 2000 and 2001 based on loaning documents got executed on 31.10.1996 is clearly barred by limitation. The said arguments does not stand in view of the defendants executing Exts. A13 and A14 revival letters dated 25.06.1999 and 20.02.2002 and Ext. A15 balance confirmation letter dated 02.04.2002 whereby the said bill discounting facility granted vide Ext. A2 agreement of loan dated 31.10.1996 stood revived. On a conjoint reading of Exts. A1 to A5 and Exts. A11, A13 to A15, the OA claim made consequently wherefore is found to be well within the period of limitation. These issues are thus decided in favour of the applicant as aforesaid.

5.5 Issue No. (vi):—

(i) Ld. counsel for the defendants contended that as the applicant had come out with a specific case that the bill discounting facility was primarily secured by the accepted hundies drawn on M/s. Peddar Tyres Ltd. and M/s. Dunlops India Ltd., no cause of action has arisen to sustain their OA claim in respect of the 12 bills discounted by defendants in respect of M/s. M.D. Rubbers and M/s. Shiv Rubber Industries. It is urged to appreciate that for the mere reason of non-mentioning about it, the OA has to fail. It is also submitted that the cause of action shown in para 5.12 is erroneous and the OA has to be non-suited for the reason of non-disclosure of any cause of action.

(ii) Mr. George Thomas Mevada, Senior Advocate appearing for the applicant submitted that cause of action could not be restricted to one single fact or transaction as it would relate and be referable to a bundle of facts which the applicant would be required to prove for sustaining its claim. It was submitted further that the applicant had mentioned in this case different dates on which cause of action had arisen besides setting out by way of pleadings as to the availment of bill discounting facility and the dishonour of several such bills discounted by the 1 defendant. According to the Ld. counsel for the bank, the mentioning of the names of M/s. Peddar Tyres Ltd. and M/s. Dunlops India Ltd. in the OA pleadings could be an act of oversight and inadvertence and that by itself would not absolve the defendants from their liability to discharge the OA claim.

(iii) The Tribunal sees that the applicant had pleaded in para 5.12 of the OA as to the cause of action having arisen on 31.10.1996 when the 1 defendant had availed the enhanced loan facility, on 25.06.1999 and 20.02.2002 when the account was revived by executing the revival letters, thereafter on 02.04.2002 when the balance outstanding came to be confirmed, on 13.09.2002 when lawyer notice was sent to them and so on. In para 5.7 of the OA the applicant had averred as regards the several bills discounted against the bill discounting facility been returned unpaid, the 1 defendant been informed about it and his current account been debited with the said amount to a tune of Rs. 39,64,924.64.

(iv) On a reading of the pleadings in whole and Ext. A1 loan sanction letter issued on 31.10.1996 what is discernible is that when the usance bill discounting limit of Rs. 60 lakhs came to be accommodated pursuant to loan application dated 07.10.1996, such advance was then required to be secured by accepted hundies drawn on M/s. Peddar Tyres Ltd. and M/s. Dunlops India Ltd. as primary security. Going by loan sanction letter, the said facility was originally granted for one year time which was subject to review after six months depending upon the conduct and utilization of the accounts. Ext. A13 dated 25.06.1999 and Ext. A14 dated 20.02.2002 are revival letters reviving the said facility of Rs. 60 lakhs accommodated to the 1 defendant concern vide agreement dated 31.10.1996 and the 2 defendant had also extended his deed of guarantee dated 31.10.1996 for facilitating such revival of facility. The defendants themselves had in para 10 of their written statement admitted about the discounting of 12 bills covered under 12 different hundies and lorry way bills by the applicant bank pertaining to M/s. M.D. Rubbers and M/s. Shiv Rubber Industries during the period December, 2000 to August, 2001 and the subsequent dishonour of such bills, as also the factum of Ext. A16 statement of account showing the dates on which the credits were given in respect of discounted bills and the dates when the debits were made as and when the bills got returned.

(v) From the above, it is discernible that the usance bill discounting facility of Rs. 60 lakhs remained intact and was revived from time to time upto the year 2002 and in the course of the said banking activity, of the several bills which were discounted against the said facility, few of them were returned unpaid and the OA claim is made seeking to recover the same. The defendants' submission that there is no cause of action merely for non-mentioning of the details of each and every returned bills merits no appreciation, as the amount so debited in current account of the 1 defendant has been further admitted to be true and proper by the defendants vide Ext. A15 balance confirmation letter dated 02.04.2002 and Ext. A19 lawyer's reply notice dated 07.11.2002.

(vi) It is well settled that the expression ‘cause of action’ means, bundle of facts which gives rise to a right or liability. If any authority is needed we find the same in the decision of the Hon'ble Supreme Court in Sonic Surgical v. National Insurance Company Limited [reported in (2010) 1 SCC 135]. Each and every fact pleaded by the applicant in this OA is such which has a nexus or relevance with the lis that is involved in this case leading to the conclusion that that fact gives rise to a cause of action. The defendants have no case that the facts pleaded by the applicant bank in this OA have no bearing with the dispute involved in this case or that they do not give a right to the applicant bank to seek relief against them before this Tribunal. Therefore, in the above circumstances, the Tribunal find that there is no merit in the contention of the defendants that there is no cause of action, and on the contrary the facts pleaded by the applicant are such that which give right to it to seek relief before this Tribunal. The issue, thus, is found in favour of the applicant.

5.6 Issue No. (vii):—

(i) Ld. counsel for the defendants emphatically contended that the accounts reflected in Ext. A16 statement of account is legally invalid as it is not corroborated by any independent evidence to show the entries therein are correct, authentic and represent the real transactions that transpired between the applicant and defendants. It is urged to appreciate that the OA claim amount emanating from bill discounting facility, in the absence of the dishonoured/returned bills no credence could be given to Ext. A16 statement of account as the entries in the said statement by itself would not suffice to fasten the defendants with any liability. It is further submitted that the said account statement is also inadmissible in evidence for the reason of it being not duly authenticated in the manner contemplated under law.

(ii) To buttress the said contention, Ld. counsel for the defendants placed reliance on the judgment rendered by the Division Bench of the Hon'ble High Court of Kerala in the case titled Chirag Enterprises v. Star Traders, reported in 2012 (4) KHC 271 wherein it is held as follows:—

“15. Let us consider the evidentiary value of Exts. A6 to A8 also. These are ledger books which show the entries of the alleged transactions with the defendants. The learned counsel for the respondent submitted that entries in Exts. A6 to A8 cannot be taken as substantive evidence, unless those are corroborated by other independent evidence which was not forthcoming, in view of the mandate under Section 34 of the Evidence Act. He placed reliance on various decisions in Chandradhar Goswami and others v. Gauhati Bank Ltd ( AIR 1967 (SC) 1058), Shambhu Bhat v. Karnataka Vyavasaya Varthaka Sangha Ltd. (1987 (1) KLT 768), Narayanan v. Indian Handloom Traders (1999 (1) KLT 700), Manilal v. Johnson (2011 (1) KLT 321), Central Bureau of Investigation v. V.C. Shukla (1998 (2) KLT SN 47 (SC).

16. Section 34 of the Indian Evidence Act reads as follows:—

34. [Entries in books of account including those maintained in an electronic form] when relevant- [Entries in books of accounts including those maintained in an electronic form], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

17. A close analysis of the above said decisions would show that the Case Law as it stands today set out in the above decisions is as follows: The entries in books of account are not by themselves sufficient to charge any person with the liability. There must be independent evidence of the transaction to which the entries relate and in the absence of such evidence, no relief can be given to the parties who rely upon such entries to support their claim against another. As per the evidentiary value of entries relevant under Section 34 of the Evidence Act such entries though relevant are only corroborative evidence and it is to be proved by further independent evidence that the entries represent honest and real transactions and money was paid or due in accordance with those entries.

(Emphasis is mine)

18……… Even if entries in the books of account are correct and authentic, such books of account cannot fix the liability upon the person, in the absence of independent corroborative evidence. To sum up, Exts. A1 and A2 are not by themselves sufficient to charge the defendants with the liability in the absence of independent corroborative evidence in view of Section 34 of the Indian Evidence Act. Ext. A3 is neither admissible nor relevant as it cannot be considered as books of account contemplated under Section 34…………”

(iii) Mr. George Thomas Mevada, Senior Advocate appearing for the bank contended that as and when the bills came to be discounted, amounts were credited then and there to the 1 defendant's account and she has no case that the amounts so credited were not withdrawn by her. He succinctly pointed out that even if a single entry in Ext. A16 statement of account is found or alleged to be wrong, it can be challenged by the borrower and the defendants in this case could not point out any such discrepancy. Ld. counsel also pointed out that Ext. A32 reply notice caused by the defendants through their lawyer to the applicant's Ext. A12 lawyer's notice, does not dispute the amount claimed as due by the bank even by a rupee and therefore the defendants who had thereby admitted the entire transaction and liability cannot be heard to say anything now contrary to their admissions already made. It is the definite case of the applicant bank that Ext. A16 statement of account reflects the correct and authentic entries relating to transactions that transpired between applicant and the defendants besides being properly authenticated in the manner contemplated under law.

(iv) The defendants' aforesaid contentions appear to have been made only in vain, that too very vaguely without any factual basis or force. In para 10 of the written statement, the defendants themselves had admitted that Ext. A16 statement of accounts produced by the bank clearly shows the dates on which the credits were given in respect of the discounted bills, as also the dates when the debits were made when the bills were returned. Further to that, the defendants had admitted as regards the applicant's discounting of 12 bills and the return of said bills due to non-acceptance of the party of which seven bills pertain to M/s. M.D. Rubbers, Ludhiana to the tune of Rs. 16,30,199/- and five bills pertain to M/s. Shiv Rubber Industries, Ludhiana amounting to Rs. 14,19,836/-. They therefore are estopped from raising any contention as regards the correctness of any credit/debit entries reflected in Ext. A16 account statement relied by the bank. The defendants of course could not show or point out even one entry in Ext. A16 statement of accounts to be in any way incorrect or erroneous.

(v) The law remains trite that the borrowers' who dispute the correctness of any debit or credit entry in a statement of account will have to substantiate the same by adducing cogent, acceptable evidences. If any authority is required we find the same in the constitution bench judgment of the Hon'ble Supreme Court in Central Bank of India v. Ravindra [reported in (2002) 1 SCC 367 : AIR 2001 SC 3095 : 2002 (1) KLT 743 (SC)] which reads as follows:

“56……… On the Court being prima facie satisfied, if a dispute is raised in that regard, of the permissibility of debits, the onus would be on the borrower to show why the amount of debit balance appearing at the foot of the account and claimed as principal sum cannot be so accepted and adjudged. This practice would narrow down the scope of controversy in suits filed by banking institutions and enable an expeditious disposal of the suits, the issues wherein are by and large capable of being determined by documentary evidence. ……The court can act on assumption that transactions or dealings have taken place and accounts maintained by banks in conformity with RBI directives.”

(Emphasis is mine)

(vi) On a respectful reading of the judgment of the Hon'ble High Court of Kerala rendered in the case titled Chirag Enterprises v. Star Traders extracted supra, the Tribunal finds the said case to be distinguishable from the present one. The said judgment relates to a suit for recovery of money based on accounts (not coming within the ambit of Banker's Book Evidence Act, 1891), wherein in terms of S. 34 of Indian Evidence Act it is held that the entries of alleged transactions in ledger books, unless they are corroborated by other independent evidence, could not be sufficient to charge any person with liability. In the present case, the defendants besides being unable to show any entry in Ext. A16 statement of account to be incorrect or erroneous, had admitted as to the said account statement clearly showing the credits given on the date of discounting of bills and corresponding debits made when the said bills had returned unpaid. Ext. A15 balance confirmation letter dated 02.04.2002 executed by 1 defendant is further evidential of the outstanding debit balance amount shown as due in her current account as on 31.03.2002.

(vii) The Tribunal is reminded of a judgment rendered by the Hon'ble High Court of Rajasthan in the case titled State Bank of India v. Sharda Spuntex Pvt. Ltd., reported in wherein the debit entries made by the bank as a consequence of cancellation of forward exchange purchase contract has been held to be a ‘debt’ within the meaning of S. 2(g) of the Act and its relevant portion reads as follows:—

“20. ………… In the instant case, as per para 1 and 2 of the plaint, it is admitted position of the case that the company is getting financial facility from the petitioner Bank and, for the purpose of forward contract limit of eighty crore rupees, the company executed forward exchange purchase contracts; meaning thereby, financial assistance has been granted by the petitioner Bank to the respondent-plaintiff company………

21. Whether the debit entries made by the Bank while declaring the company's bank accounts as NPA can be defined debt or not, for the said purpose, the definition of debt provided under Section 2(ha) may be seen which provides that “debt” shall have the meaning assigned to it in Clause (g) of Section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which is as follows:

2(g).-“Debt” means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application.

22. Upon perusal of the above definition, it emerges that debt means liability which is claimed as due from any person by a bank or a financial institution during the course of any business activity undertaken by the Bank or financial institution. Here, in this case, for the purpose of getting financial assistance by way of forward contract limit, the forward exchange purchase contracts were signed as guarantee. Therefore, if any liability arises due to breach of said contracts it certainly falls within the definition of debt provided under Section 2(g) of the Act of 1993 and 2(ha) of the Act of 2002.

25. In this case, the above discussion clearly shows that the company is availing financial facility, so also, as is admitted in para 2 of the plaint, for availing forward contract limit the company executed forward exchange purchase contracts which is a guarantee to the Bank for sanction of the limit, therefore, in my opinion, the respondent company very much falls within the definition of “borrower”, so also, if any debit entries are made by the Bank arising out as a consequence of cancellation of forward exchange purchase contract, it falls within the definition of “debt” and the Act of 2002 and Act of 1993 are applicable in this case which is upheld by the apex Court in Merdia Chemicals' case (supra), ………”

(Emphasis is mine)

(viii) The applicant bank in this case had produced Exts. A1 to A5 loaning/security documents, Exts. A13 and A14 revival letters, Ext. A15 balance confirmation letter, Ext. A12 lawyer's notice, Ext. A18 loan recall letter, Ext. A32 reply notice of the defendants and Ext. A33 letter issued by 1 defendant confirming the transactions as evidences on its side to prove the loan transactions in addition to Ext. A16 statement of account.

(ix) Apart from Ext. A32 reply dated 07.11.2002, the 1 defendant had in Ext. A33 letter dated 04.07.2002 and Exts. B4 and B5 complaints filed against M/s. M.D. Rubbers in CC No. 687/2006 and CC No. 26/2007 on the file of Ld. Judicial First Class Magistrate, Kothamangalam admitted about the availing of bill discounting facility from the applicant to the tune of Rs. 60 lakhs and the applicant consequently discounting the bills submitted to it by the 1 defendant concern in respect of M/s. Shiv Rubber Industries, M/s. M.D. Rubbers and M/s. Devdip Tyres Pvt. Ltd. Therefore it is futile on the part of the defendants to contend that the applicant is basing the OA claim merely on the strength of Ext. A16 statement of account alone in the absence of any independent evidence to prove the transactions or entries shown therein. The law is well settled on the point that an admitted fact requires no further proof. Ext. A15, Ext. A32 and Ext. A33 are definitely uncontroverted pieces of evidence from the side of defendants themselves to prove the OA subject transactions. The other contention raised by the defendants as regards the inadmissibility of Ext. A16 statement of accounts for the reason of it being not properly authenticated under the relevant provisions of law, also does not sustain since Ext. A16 account statement have come to be filed by the applicant upon properly certifying it to be one as required under the relevant provisions of law.

(x) For the foregoing reasons, the Tribunal holds Ext. A16 statement of account to be legally valid and admissible in evidence.

5.7 Issue No. (viii):—

(i) The defendants had raised a definite plea that the interest claimed at 20.25% is highly excessive and unconscionable. To buttress their said contention, the defendants would submit of having signed only in page No. 4 of Ext. A1 sanction letter dated 31.10.1996 issued in respect of the OA subject usance bill discounting limit of Rs. 60 lakhs and the Tribunal was urged not to give any weightage to page Nos. 1 to 3 therein for the reason of it containing neither the signature of the bank official nor the counter signatures of the defendants in token of their acceptance to the terms and conditions set out therein. It is their further case that the interest calculated and claimed in the present OA is highly excessive and not in accordance with the rate of interest applicable to the above loan. Ext. A16 statement of account is stated to be showing excessive interest component than what is legally due to the bank. The said contention was however strongly refuted by the applicant bank by pointing out that as against the original rate of interest agreed at 20.25% per annum, the interest claimed by way of this OA is only 14.10% which cannot be stated to be in any way excessive.

(ii) Ext. A1 sanction letter dated 31.10.1996 comprises of four pages in which the first three pages sets out the details of the defendants' loan application dated 07.10.1996, bill discounting limit sanctioned to the tune of Rs. 60 lakhs, the primary security, additional security as also the personal guarantee of defendants and equitable mortgage of immovable properties to be offered securing due repayment of the same, period of advance, rate of interest and other terms and conditions governing the sanction. The reason for the defendants' disowning of their knowledge as to the contents found in first three pages of Ext. A1 sanction letter is obvious and conspicuous going by the fact that the details of security and rate of interest are only found mentioned therein.

(iii) The defendants' allegation as to the interest shown in Ext. A16 being excessive than what has been agreed upon did not impress this Tribunal for more than one reason. The defendants have no such claim or contentions when Ext. A15 balance confirmation letter dated 02.04.2002 came to be executed by them confirming the balance in the 1 defendant's current account as on 31.03.2002 to be Rs. 37,56,469.72, which is found to be in consonance with the disclosure of such amount as due on such date vide Ext. A16 statement of account. The defendants in their Ext. A32 reply notice dated 07.11.2002 caused to the applicant's Ext. A12 lawyer's notice dated 13.09.2002 by which Rs. 39,64,424.64 came to be demanded as the then outstanding amount due to the bank, had without disputing the correctness of the amount claimed therein only sought for some more time for remitting the amount due besides admitting the transactions as mentioned in Ext. A12 notice. The amount claimed as due in Ext. A12 notice dated 13.09.2002 is the very same amount reflected/shown to be due in Ext. A16 statement of account with interest calculated upto 31.08.2002 i.e., just prior to issuance of such notice.

(iv) Going by the contractual obligation emanating from Ext. A1 sanction letter counter signed by the defendants in token of their acceptance of the same, 20.25% which is the original rate of interest agreed upon by the defendants while executing Exts. A1 to A5 loaning/security documents cannot be held to be in any way excessive or unreasonable it being so fixed commensurating with the then prevailing rate of interest, in respect of which the defendants had no quarrel or dispute till the filing of this OA. Ext. A17 interest calculation statement does reveal the applicant's charging of subsequent interest at 14.60% from 30.09.2002 to 04.05.2003 and thereafter at 14.10% as claimed in the OA taking into account the revision of interest that had taken place subsequently, which cannot in any respects be held to be excessive or unconscionable as alleged by the defendants. The Tribunal wherefore arrives at a conclusion that the interest charged and claimed in the present case is only just and proper.

5.8 Issue No. (ix):—

(i) According to the applicant bank, as per Ext. A16 certified copy of the statement of account maintained by it in its due course of business and Ext. A17 separate calculation in respect of the interest of loan, a sum of Rs. 45,76,774.35 as on 02.09.2003, the date of the OA under the current account relating to the bills discounting facility is due to it from the defendants jointly and severally. Except contending in a vague fashion that Ext. A16 statement of account is invalid and inadmissible in evidence and does not reflect the actual amount payable by the defendants and also that the interest charged by the applicant bank is excessive and unconscionable, the defendants have not specifically disputed the correctness of any of the entries therein. I have found under issue Nos.(vii) and (viii) that their such contentions are untenable. Under these circumstances and in view of my findings under issue Nos.(i) to (viii), I find that the applicant bank is entitled to recover the sum of Rs. 45,76,774.35 claimed as due under Ext. A16 certified copy of the statement of account relating to the current account in respect of the bills discounting facility as on 02.09.2003, the date of the OA with interest pendentelite and post final order interest thereon from the defendants jointly and severally and by sale of the schedule immovable properties.

(ii) Having regard to the amounts availed for business purpose, and the repayments made, and the interest charged as also the present prevailing rate of interest in respect of such advances, upon invoking the discretionary power as provided under S. 19(20) of the Act in granting interest on equitable considerations, the Tribunal is of the view that the applicant bank is entitled to get interest pendente lite and post final order interest respectively @12% per annum and @10% per annum.

6. The applicant bank, therefore, is entitled to get a final order on the following lines:—

(a) In the result, the applicant bank is given a final order allowing it to recover the sum of Rs. 45,76,774.35 (Rupees forty five lakhs seventy six thousand seven hundred seventy four and paise thirty five only) with interest thereon @12% per annum from 02.09.2003 to the date of this final order and thereafter @10% per annum till realisation and also its costs from the defendants jointly and severally and by sale of the schedule immovable properties.

(b) The schedules to the OA shall be appended to this final order.

(c) Recovery certificate shall be drawn up and issued on the basis of this final order to the Recovery Officer for recovery of the amount of debt specified under paragraph 6(a) above.

(d) The applicant bank shall file memo of costs within ten days from the date of this final order.

7. Communicate copy of this order to both parties as provided in R. 16 r/w R. 2(c) of the Debts Recovery Tribunal (Procedure) Rules, 1993 as amended from time to time.

[Dictated to my PA directly on the computer, corrected and pronounced by me in the open Tribunal on this the 31st day of May 2016]

[N. SOMASUNDAAR] PRESIDING OFFICER

APPENDIX

Witnesses for Applicant:

AW1: Nixon Joseph, Chief Manager of the applicant bank.

AW2: T.J. Jose, Chief Manager of the applicant bank

AW3: Leon Therattil, Assistant General Manager of the applicant bank

Witness for Defendant(s):

DW1: Johny Paul, (D2).

Applicant's Exhibits

Ext No. Date Particulars of document A1 31.10.1996 Sanction letter issued by the applicant bank to the 1st defendant advising her sanction of usance bills discounting limit of Rs. 60 lakhs, which was countersigned by her in token of having accepted the terms and conditions therein A2 31.10.1996 Agreement of loan for overall limit executed by the 1st defendant in favour of the applicant bank A3 31.10.1996 Agreement of hypothecation of goods and assets executed by the 1st defendant in favour of the applicant bank A4 31.10.1996 Deed of guarantee for overall limit executed by defendants 1 and 2 in favour of the applicant bank A5 31.10.1996 Letter regarding the grant of individual limits within the overall limit executed by the 1st defendant in favour of the applicant bank A6 11.10.1984 Sale deed No. 3290 of the SRO, Muvattupuzha A7 31.10.1987 Sale deed No. 1459 of the SRO, Pothanikkadu A8 10.11.1986 Gift deed No. 4137 of the SRO, Muvattupuzha A9 26.07.1988 Correction deed No. 1250 of the SRO, Pothanikkad A10 04.02.1995 Gift deed No. 443 of the SRO, Pothanikkadu A11 Letter evidencing deposit of title deed executed by the 2nd defendant in favour of the applicant bank A12 13.09.2002 Copy of lawyer notice issued by the applicant bank to the defendants calling upon them to discharge the debt within 15 days from the date of receipt of such notice A13 25.06.1999 Revival letter executed by the defendants in favour of the applicant bank A14 20.02.2002 Revival letter executed by the defendants in favour of the applicant bank A15 02.04.2002 Balance confirmation letter executed by the 1st defendant in favour of the applicant bank confirming the balance of Rs. 37,56,469.72 as on 31.03.2002 under the current account in respect of the bills discounting facility A16 Certified copy of the statement of account relating to the current account in respect of the bills discounting facility A17 Statement showing the unapplied interest accrued under Ext. A16 account during the period from 01.09.2002 to 31.08.2003 A18 01.06.2002 Copy of letter issued by the applicant bank to the 2nd defendant regarding irregularity in cash credit account/inland bills discounted/dishonoured A19 04.06.2002 Copy of the postage book of the applicant bank A20 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A21 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A22 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A23 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A24 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A25 16.10.2002 Certified copy of the criminal complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Muvattupuzha A26 08.01.2004 Certified copy of the final report in Cr 140/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A27 01.09.2004 Certified copy of the final report in Cr 141/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A28 01.09.2004 Certified copy of the final report in Cr 142/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A29 01.09.2004 Certified copy of the final report in Cr 143/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A30 01.09.2004 Certified copy of the final report in Cr 144/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A31 01.09.2004 Certified copy of the final report in Cr 145/2002 submitted by the Pothanikkadu police before the 1st Class Judicial Magistrate, Kothamangalam (in Malayalam) A32 07.11.2002 Reply to Ext. A12 lawyer notice issued by the defendants through their counsel to the applicant bank A33 04.07.2002 Letter issued by the 1st defendant to the applicant bank

Defendants' Exhibits

Ext No. Date Particulars of document B1 03.02.2014 Certified copy of the Judgement in Criminal Appeal No. 400/2012 of the Addl District and Sessions Judge, Muvattupuzha B2 03.02.2014 Certified copy of the Judgement in Criminal Appeal No. 401/2012 of the Addl District and Sessions Judge, Muvattupuzha B3 03.02.2014 Certified copy of the Judgement in Criminal Appeal No. 404/2012 of the Addl District and Sessions Judge, Muvattupuzha B4 13.10.2005 Certified copy of the complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Kothamangalam B5 13.10.2005 Certified copy of the complaint filed by the 1st defendant before the 1st Class Judicial Magistrate, Kothamangalam B6 03.10.2015 Payment order of the 1st Class Judicial Magistrate, Kothamangalam B7 03.10.2015 Payment order of the 1st Class Judicial Magistrate, Kothamangalam.