Gujarat High Court
State Bank Of India vs Maharana Mills Ltd on 21 July, 2026
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/FA/53/1993 CAV JUDGMENT DATED: 21/07/2026
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Reserved On : 22/04/2026
Pronounced On : 21/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 53 of 1993
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
==========================================================
Approved for Reporting Yes No
✓
==========================================================
STATE BANK OF INDIA
Versus
MAHARANA MILLS LTD. & ORS.
==========================================================
Appearance:
MR UDAY R BHATT(192) for the Appellant(s) No. 1
DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 3.1,3.3,5
MR KN RAVAL(710) for the Defendant(s) No. 2
NOTICE ISSUED BY PUBLICATION for the Defendant(s) No. 3.2
SHIVANG A THACKER(7424) for the Defendant(s) No. 1
MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR AYUSH BHANDARI
WITH MR VIDIT S SHARMA(7365) for the Defendant(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
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1.Heard learned advocate Mr. Uday R. Bhatt for
the appellant, learned Senior Advocate Mr.
Deven Parikh with learned advocate Mr. Ayush
Bhandari with learned advocate Ms. Vidit S.
Sharma for respondent no.4 and learned
advocate Mr. Shivang A. Thacker for the
Official Liquidator- respondent no.1.
2.This appeal was originally filed by the State
Bank of Saurashtra which had later on merged
with State Bank of India and therefore, State
Bank of India was substituted as the
appellant vide amendment carried out as per
order dated 07.09.2017 passed in Civil
Application No.9181 of 2017.
3.The appellant bank-original plaintiff filed
Special Civil Suit No.13/1985 in the Court of
Civil Judge (S.D.) at Porbandar to recover a
sum of Rs.3,89,54,766.30 from the
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respondents-original defendant nos. 1 to 4.
4.For the sake of convenience, the appellant
bank is referred to as the plaintiff bank,
respondent no.1 company is referred to as
defendant no.1 company, respondent no.2 is
referred to as defendant no.2, respondent
no.3 is referred to as defendant no.3,
respondent nos. 3.1 to 3.3 who are the heirs
of respondent no.3 are referred to as
defendant nos. 3.1 to 3.3, respondent no.4 is
referred to as defendant no.4 and respondent
no.5 bank is referred to as defendant no.5
bank.
FACTS
5.The plaintiff bank advanced financial
assistance to defendant no.1 – M/s. The
Maharana Mills Ltd. company which was engaged
in the business of spinning, weaving and
manufacturing of Cotton Textile having its
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factory and registered office at Porbandar.
Defendant nos. 2 to 4 were the Chairman and
the Directors respectively of defendant no.1
company. Defendant no.5 Industrial
Development Bank of India was also joined in
the suit as it had also advanced loan to
defendant no.1 company.
6.During the pendency of the suit, defendant
no.3 Shri Khimjibhai N. Mehta expired and
therefore, his legal representatives i.e.
defendant nos. 3.1 to 3.3 were brought on
record.
7.The plaintiff bank had granted various cash
credit facilities as enumerated in paragraph
nos. 1 to 6 of the plaint. Defendant no.1
company had executed all the requisite
documents in favour of the plaintiff bank and
defendant nos. 2 to 4 were the guarantors and
executed necessary documents of personal
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guarantee in favour of the plaintiff bank.
8.Defendant no.1 company had also executed the
Letters of Hypothecation for Rs.5,10,00,000/-
which covered the limits of cash credit, etc.
and also deposited the documents of the title
of the factory premises, building etc. as
collateral security with the plaintiff bank
on 14.02.1969. As the defendant no.1 company
could not repay the outstanding dues of the
plaintiff bank inspite of repeated demand
being made, the plaintiff bank served demand
notice dated 31.12.1984 upon the defendants.
However, inspite of such demand notice, no
payment was made and therefore, the plaintiff
bank filed suit for recovery of
Rs.3,89,54,766.30 together with further
interest and cost.
9.The defendant nos. 1 to 4 filed the Written
Statement at Exh.43 in which the transactions
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with the plaintiff bank have been admitted.
It was contended by defendant nos. 1 to 4
that defendant no.1 Mill was closed on
11.02.1983 and therefore, denied the suit of
the plaintiff bank for claim of interest
amount after closing of the Mill. It is also
the case of the defendants that on or about
the date of filing of the suit, defendant
nos. 1 to 4 executed the new revival
documents in favour of the plaintiff bank
and, therefore, the suit would not lie on the
basis of the documents relied upon by the
plaintiff bank, as such documents have ceased
to operate and therefore, cannot be
considered for valid claim.
10. It was contended that General Manager of
the plaintiff bank at Bhavnagar had promised
defendant nos. 1 to 4 that the suit would not
be filed if the defendants would submit
revival proposal to the plaintiff bank. The
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defendants also contended that revival
documents were executed by them on or about
the date of filing of the suit and therefore,
the plaintiff bank could not have filed the
suit for recovery as it would be barred by
the principle of promissory estoppel. It was
contended that defendant nos. 1 to 4 have
discharged their obligation of executing
revival documents which were never produced
by the plaintiff bank on record and
therefore, there was suppression at the time
of filing of the suit and the plaintiff bank
has not appeared before the Court with clean
hands and therefore, it was prayed that suit
was liable to be dismissed by drawing adverse
inference against the plaintiff Bank.
11. Defendant no.5 bank filed written
statement at Exh.21 contending that it had
first charge on all the movable and immovable
assets of the defendant no.1 company ranking
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pari passu with the charge in favour of the
plaintiff for its cyclone term loan of Rs. 20
Lacs and ranking prior to charge in respect
of working capital term loan of Rs.490 Lacs.
12. After considering the pleadings and
documentary evidence placed along therewith,
the Trial Court has settled the issues at
Exh.46 which have been answered by the Trial
Court. The issues framed by the Trial Court
as well as summary of findings of the Trial
Court are as under:
Sr. Issues Findings
No.
1 Whether the plaintiff proves In the
its suit claim on various affirmative, but
accounts with interest as against the
claimed as stated in plaint defendant no.1
para 17(A) Ex.1? only.
2 Whether the plaintiff proves In the
that it is entitled to affirmative.
recover the suit amounts by
sale of hypothecated goods
and mortgaged properties as
alleged ?
3 Whether the plaintiff proves In the
that it is entitled to get a affirmative.
decree for charge on
hypothecated goods, mortgaged
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properties as alleged?
4 Whether the plaintiff proves The defendant
that the defendant no.1, the no.1 mill is
company as well as defendant only liable for
no.2 to defendant no.4, in the claim of the
their personal capacities, plaintiff bank.
are liable for the suit claim The defendants
of the plaintiff? nos. 2,3 and 4
are not liable
for the claim of
the plaintiff
bank in their
personal
capacity.
5 Whether the defendant no.1 to In the
4 prove that some cloth of Affirmative.
defendant no.1, with 36,19,937-94 ps.
permission of plaintiff, was which is already
sold and said price was credited in
received by plaintiff. If account of
yes, what is the said amount? defendant no.1
by the plaintiff
bank.
6 Whether the defendants nos. 1 The defendants
to 4 prove that as per say of nos. 1,2,3 and 4
the plaintiff bank, suit have proved that
documents were renewed by the documents
defendants nos. 1 to 4 and so were renewed.
the suit of the plaintiff But the suit is
based on old documents, is maintainable.
not maintainable as Minimum adverse
alleged ? inference has
been drawn
against the
plaintiff bank.
7 Whether the defendants nos. 1 In the negative.
to 4 prove that the suit of
the plaintiff is barred on
principles of promissory
estoppel and acquiescence as
the plaintiff had assured not
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to file the suit, if such
documents were renewed by
defendants nos. 1 to 4?
8 Whether the defendant nos.1 In the negative.
to 4 prove that the cause of
action to file the suit has
come to an end as alleged ?
9 What is found due, if any, to Rs.3,62,15,577-
plaintiff? 61 ps. found due
against the
defendant no.1
only.
10 To reliefs plaintiff is The plaintiff
entitled? bank is entitled
to recover the
amount from the
defendant no.1
only and from
the properties
of the defendant
no.1
11 Whether plaintiff bank alone The plaintiff
is entitled to recover the bank alone is
suit amount from the not entitled to
hypothecated and mortgaged recover the
properties of defendant no.1 amount from the
to 4? hypothecated and
mortgaged
property of
defendant no.1.
There is a
charge of
defendant no.5
also.
12 Whether defendant no.5 proves In the
that it can get the reliefs affirmative
as stated in written
statement Ex. 21, para 17?
13 What order and decree? As per final
order
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13. The plaintiff bank has placed on record
several documents executed by the defendants
marked as Exh.60 to Exh.111. Defendant nos. 2
to 4 had also issued guarantee letters at
Exh. 66, Exh.73, Exh.78, Exh.79, Exh.86,
Exh.87 on 12.02.1982.
14. During the pendency of the trial,
defendant nos. 1 to 4 submitted an
application dated 15.01.1987 (Exh.47) for
orders requiring the plaintiff bank to
produce correspondence, telegram and
proceedings of conferences, relating to
different accounts during the years 1984,
1985 and 1986. However, the Trial Court
rejected such application.
15. Thereafter, an application dated
20.11.1989 (Exh.123) was again filed by the
advocate of the defendant nos. 1 to 4 for
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production of documents by the plaintiff bank
relating to various accounts of defendant
no.1 company. Deposition of witness of the
plaintiff bank – Shri Kiritkumar Mangalsinh
Gohil was recorded at Exh.127. It appears
that thereafter defendant no.1 company was
ordered to be wound up by order dated
03.05.1990 passed in Company Petition No.138
of 1989. An attempt was made on behalf of
defendant nos. 2 to 4 to place on record the
dispatch book found in the year 1991 to prove
that revival documents have been executed and
sent to the plaintiff bank which was
permitted by the Trial Court by order passed
below Exhs. 152 and 154.
16. Thereafter the Trial Court after
considering the oral and documentary evidence
on record, by judgment and decree dated
30.01.1992 decreed the suit against defendant
no.1 company for Rs.3,62,15,577.61 with
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interest at the rate of 12% per annum from
the date of suit till realisation and
dismissed the suit against defendant nos. 2
to 4 and declaration was passed against
defendant no.5 in respect of charge over the
property of the company as claimed by the
plaintiff bank.
17. This appeal is therefore filed to decree
the suit against defendants nos. 2 to 4 also
on the ground that defendant nos. 2 to 4 were
the guarantors and therefore, they are
jointly and severally liable for recovery of
claim of outstanding dues of defendant no.1
company as the Trial Court has held that
defendant nos. 2 to 4 are not liable for
claim of the plaintiff bank in their personal
capacity. The plaintiff bank is also
aggrieved by the impugned order of the Trial
Court restricting the claim to
Rs.3,62,15,577.61 instead of
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Rs.3,89,54,766.30 with interest.
18. It appears that during the pendency of
the appeal, order dated 12.12.2022 was passed
permitting the learned advocate for the
appellant to serve notice upon unserved
respondent nos. 3.1 and 3.3 through Air-mail,
failing which, the appeal would stand
dismissed against the said respondents and so
far as respondent no.3.2 was concerned, the
notice was returned as refused. Order dated
12.12.2022 reads as under:
“1. Notice issued, though the board
would indicate the notice has been
served to Respondent No.1, but the
records do not reflect the same.
Hence, we permit the learned counsel
appearing for the appellant to serve
copy of the appeal memorandum on the
Standing Counsel representing the
Official Liquidator at High Court of
Gujarat by notifying the hearing
date as 16.01.2023.
2. In the meanwhile, we permit the
appellant’s counsel to take out
notice to unserved respondent viz.
Respondents No.3.1 and 3.3 namely
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from today. Failing which, appeal
shall stand dismissed against
Respondents No.3.1 and 3.3.
3. Notice issued to Respondent
No.3.2 has been returned as unserved
with shara as ‘refused’. Respondent
No.3.2 viz.Shobhnaben Devani is
called out. None appears, service
held to be sufficent. Place ex-
parte. Hence, service of notice on
Respondent No.3.1 is held to be
sufficent.
4. We also permit appellant’s
counsel to take out notice to
Respondent No.5. Permittted to take
out notice for the IDBI Bank Limited
– Respondent No.5 by Speed Post
within one week from today, failing
which, appeal shall stand dissmissed
as against Respondent No.5 also.
Re-list this matter on 23.01.2023.”
19. As no steps were taken by the plaintiff
bank to serve notice upon respondent no.3.1
and 3.3 as per order dated 12.12.2022, appeal
was ordered to be dismissed qua respondent
nos. 3.1 and 3.3 vide order dated 23.01.2023.
Further, it was reported that respondent no.2
defendant no.2 Dhirunbhai N. Mehta had
expired and therefore, his legal
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representatives were directed to be brought
on record. It was also noticed that there was
no material to show that learned advocate for
the appellant had taken any steps to serve
notice upon respondent no.5 defendant no.5.
Therefore, the appeal was ordered to be
dismissed qua respondent no.5. Order dated
23.01.2023 passed by this Court reads as
under:
“1. This Court by order dated
12.12.2022, permitted service of
notice to respondent Nos. 3.1 and
3.3 through Air-mail within three
days from the date of order and a
peremptory order of dismissal came
to be passed. Record on hand does
not disclose that such steps has
been taken by the appellants. Thus,
peremptory order of dismissal stands
revived. Appeal stands dismissed qua
respondent Nos. 3.1 and 3.3.
2. It is also reported that
respondent No. 2 – Dhirubhai N.
Mehta is said to have expired.
Hence, learned counsel then
representing respondent No. 2 shall
make endeavour to ascertain the
details of legal representatives of
deceased respondent No. 2. There is
no material to show that learned
counsel for appellant having takenPage 16 of 95
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out notice to respondent No. 5 also
as ordered on 12.12.2022. Hence,
appeal against respondent No. 5
stands dismissed.
3. Re-list this matter on
01.03.2023.”
20. During the pendency of the appeal,
efforts were made to discharge respondent
no.4 guarantor on lump-sum payment of Rs. 1.5
crore. However, respondent bank by a detailed
affidavit filed in compliance of order dated
11.03.2026 showed its inability to accept the
proposal made by defendant no.4. Even the
efforts were also made to serve the legal
heirs of defendant no.2 by public notice by
the plaintiff bank but no one has appeared.
21. Therefore, the matter was argued on
merits by learned advocates for the
plaintiff, defendant no.4 and the Official
Liquidator.
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Submissions on behalf of the plaintiff:
22. Learned advocate Mr. Uday R. Bhatt
referred to and relied upon the averments
made in the plaint to demonstrate that right
from the inception of filing of the suit, the
plaintiff bank had narrated all the details
in para no.4 of the plaint and Promissory
Note and guarantee deeds have been executed
by defendant nos. 1 to 4 which are referred
to in the plaint supported by documentary
evidence for each of the averments.
23. Learned advocate Mr.Bhatt submitted
that the that all the documents which were
produced by the bank were duly exhibited by
learned Trial Court and the suit for recovery
was filed by producing valid documents which
were obtained by the plaintiff which are
total 52 in number (Exh 5 – Pg 71). Learned
advocate Mr. Bhatt referred to the documents
produced by the plaintiff bank namely, letter
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of hypothecation, promissory note, letter of
continuing guarantee, letter of continuing
personal guarantee, letter of continuity with
balance confirmation, revival letters,
confirmation letters, resolutions of the
board, acknowledgment of receipt of title
deeds, memorandum of title deeds, deposit of
title deeds, confirmatory letter with regard
to mortgage, resolution, registration of
charge etc. It was submitted that insofar as
transaction with the defendant no.1 company
is concerned, the first document produced is
of date 25.03.1972 and last document is a
notice dated 31.12.1984.
24. Learned advocate Mr. Uday Bhatt
submitted that in the written statement
(Ex.43) the defendants Nos. 1 to 4 have
contended that upon receiving the notice
dated 31.12.1984, the defendant no. 2
Director of the company had met the General
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Manager of the plaintiff bank at Bhavnagar
and pursuant to the discussion held with him,
the company initiated the process of passing
new resolution to renew/revive credit enjoyed
by the company. However, no particulars of
the fresh documents said to have been
executed and submitted to the Bank were
given.
25. It was submitted that the defendant
no.1 company has not produced anything on
record to show that the revival documents
were executed in presence of any officer of
the Bank or were executed by the defendants
Nos. 2, 3 and 4. Further, the defendants have
not relied upon any specific contents of any
revival document which as per them have been
submitted to the plaintiff Bank which would
extinguish the cause of action of the
plaintiff bank under the previous set of
documents. It was submitted that the
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documents alleged to have been delivered by
the defendant no.1 Company to the plaintiff
bank on 6.2.1985 were never executed by or on
behalf of the plaintiff Bank. It was
submitted that the case of the defendant is
that the said documents were executed to
induce the plaintiff Bank not to file the
suit and if it is so, then it would be
obvious that the revival documents could not
have been replaced by any documents which did
not provide for guarantee of the defendants
Nos. 2 to 4.
26. It was submitted that the Trial Court
ought to have drawn adverse inference against
the defendants nos. 2 to 4 for non-
examination of defendant no.2 Mr. D.N. Mehta.
27. It was submitted that the Trial Court
erred in holding that new revival documents
are proved to have been executed and that all
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the documents are in possession of the
plaintiff Bank and the plaintiff Bank ought
to have produced the same as they were
relevant for consideration of the suit and if
the plaintiff Bank had produced the same, the
decision would have gone against the
plaintiff Bank. It was therefore, submitted
that the Trial Court erred in holding that
this is a fit case to draw minimum adverse
inference against the plaintiff Bank on
account of non-production of new revival
documents only qua defendant nos. 2 to 4. It
was submitted that the Trial Court ought not
to have raised adverse inference against the
plaintiff bank only to the extent of any
specific case of any defendants, but not
beyond it and because of such adverse
inference, the defendant nos. 2 to 4 were
wrongly discharged from their personal
liabilities by way of guarantees given to the
plaintiff Bank.
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28. Learned advocate Mr. Uday Bhatt
submitted that as per Order XLI Rule 33 of
the Code of Civil Procedure,1908 this Court
as an Appellate Court has wide powers and
this Court may pass any order/judgment which
ought to have been passed as required, and
this power may be exercised by this Court
while exercising its appellate jurisdiction
and even if the challenge in the appeal is
only as to any part of the decree, such order
in appeal by this Court may be passed against
any of the respondents or parties, although
such respondents or parties may not have
filed any appeal or objection. It was
submitted that an Appeal being the
continuation of a suit, this Court in present
appeal in exercise of its appellate
jurisdiction can pass an order to ensure
justice.
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29. Referring to the document produced at
Page no.39 of the paper book, learned
advocate Mr. Bhatt submitted that the
appellant has produced documents which are
the revival documents which show that the
defendant no. 1 Maharana Mills Ltd. was
engaged in spinning, weaving and
manufacturing of cotton textiles and had also
availed financial assistance from various
Banks since 1969. It was submitted that for
execution of any document, a bank will issue
a Letter of Sanction/Letter of Intent which
would contain all the terms and condition
needed for the execution of a document.
However, the defendants have not referred to
any such document for revival of the loans
and adverse inference may be drawn by this
Court to this effect against the defendant
nos. 2 to 4. It was submitted that neither
Letter of Sanction/Letter of Intent nor any
executed document for revival was placed on
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record by respondents and the onus of
producing such documents is on the party as
per section 103 of the Evidence Act.
30. Learned advocate Mr. Uday Bhatt
submitted that nothing has been argued or
submitted or shown by the respondents that as
per Sections 2,3 and 10 of the Contract Act,
whether there is a concluded contract between
the parties or not. Further, there is no
contract in writing and only if there is a
concluded contract between the parties,
adverse inference can be drawn against the
plaintiff bank. It was submitted that in
normal routine course, the bank provides
copies/proforma of the revival documents to
the parties and then asks the parties to come
to the bank and execute such documents.
However, there is nothing on record to show
that the documents were exchanged between the
plaintiff bank and the defendants. It was
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submitted that to show involvement of any
public institution in a contract/agreement, a
written agreement is a must.
31. It was submitted that as per Order XII
Rule 6 of the Code of Civil Procedure, 1908,
a Court may pass a judgment at any stage of a
suit or may even dismiss a suit without
waiting for the determination of other issues
if there is a clear, unequivocal, and
unconditional admission of facts by either
party. It was submitted that the written
statement of the defendant is itself an
admission and the trial Court ought to have
granted the prayers of the plaint in entirety
as prayed for. Referring to page no. 53 of
the paper book, more particularly, para.
no.7, it was submitted that on 12.2.1982 the
defendant No.1 company had executed a Letter
of Hypothecation whereby it created a charge
on all tangible movable property such as
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products, stock-in-trade, goods of borrower
etc. for Rs.5,10,00,000/- which covered the
limit of Cash Credit Hypothecation, bills
purchase, discounting guarantee limit and
overdraft account and the said charge was
registered with the Registrar of Company. It
was submitted that such fact is an admitted
fact and is not disputed by the defendant
nos. 1 to 4 before the Trial Court therefore
in such a case, Order XII Rule 6 of the Code
shall be applicable. It was submitted that
such facts are also not denied by the
respondents defendants in the present
appellate proceeding including in proceedings
of Civil Application or Misc. Civil
Application filed in the First Appeal. It was
submitted that admittedly since 1969, the
credit facilities were entered into by the
defendants and the documents of title of the
factory premises and buildings situated at
Porbandar was deposited with the plaintiff
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bank on 14.02.1969 which fact is also not
denied by the defendants.
32. Learned advocate Mr. Bhatt submitted
that the plaintiff bank had various amounts
due from the defendant no.1 company on
various accounts of facilities granted to the
defendant no.1 company such as Cash Credit
Hypothecation Limit, Overdraft against fixed
assets, Inland foreign documentary and
Guarantee limit. The defendant nos. 1 to 4
failed and neglected to operate the said
accounts in accordance with the agreed terms,
they also failed to pay the interest on
agreed rate on specified date. However, as
the financial position of defendant No.1
company became weak and the company closed
its operations, the plaintiff bank is
entitled to demand repayment from the
defendant company of the amount due to its
own aforesaid accounts. Therefore, to enforce
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its rights, the plaintiff bank served legal
notice dated 31.12.1984 on the defendants
calling upon them to pay the outstanding dues
along with interest within 15 days from the
date of receipt of notice. The said notices
were served on the defendant nos. 1 to 4, but
the same was not complied and hence the suit
was filed by the plaintiff bank on
07.02.1985.
33. It was submitted that the suit was filed
before the signing of revival document which
is evident upon perusal of letters dated
08.02.1985 and the revival document was not
signed by the defendant no.1 Company so no
adverse inference can be drawn. It was
submitted that even if considering that the
plaintiff bank was called upon by the lower
Court to produce the signed revival
documents, merely because court was desirous
of perusing the document, it cannot be said
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that adverse inference can be drawn against
the plaintiff bank and the Trial Court has
wrongly exonerated the Directors of the
company merely based upon adverse inference.
34. In support of his submissions, reliance
was placed on the following decisions:
1) T ARIVANDANDAM V/s TV SATYAPAL reported
in 1977 (4) SCC 467 wherein it was held that
filing of frivolous and vexatious litigation
and suit should be avoided when it is found
to be groundless. The Court emphasized that
advocates, as officers of the Court, have a
duty to refuse fraudulent or dishonest cases
and should not assist clients in abusing the
judicial process.
2) RAHUL S SHAH V/S JINENDRA KUMAR GANDHI &
ORS reported in 2021 (6) SCC 418 wherein
directions to all Courts dealing with suits
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and execution proceedings were enlisted by
Hon’ble Apex Court.
3) M/S AZEEM INFINITE DWELLING (INDIA) PVT
LTD V/s M/S PATEL ENGINEERING LTD reported in
2024 LawSuit (Kar) 414 wherein it is held
that the mere fact that a further formal
agreement being drawn up will not lead to the
conclusion that the earlier agreement was not
a concluded contract. The essential point
sought to be urged was that mere negotiations
will not give rise to a binding contract and
there must be formal acceptance of the offer
made for a contract to be presumed to have
come into effect.It was submitted that the
onus is on the respondent to show that the
agreement was a concluded contract or not.
4) Karnataka Power Transmission Corporation
Limited; Karnataka Electricity Regulatory
Commission V/S JSW Energy Limited & Ors
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reported in 2023 (5) SCC 541, wherein the
Hon’ble Apex Court held as under:
“56. Section 2 of the Indian
Contract Act, 1872 provides for the
interpretation clause. We may set
out our understanding of Section 2,
so far as it is relevant, to be as
follows:
It begins with a proposal made
by a promisor. A proposal is an
offer to do something or an
offer to abstain from doing
something. The offer must be
made with a view to obtaining
the agreement to it from the
party to whom it is made. When
the person to whom the proposal,
as defined, is made, who is
treated as the promisee, conveys
his unqualified consent, the
proposal is treated as having
been accepted. The proposal,
when it is accepted, becomes a
promise. An agreement is every
promise and every set of
promises forming the
consideration for each other. As
to what is consideration, we
need not be detained. A contract
is an agreement enforceable by
law. Section 3 of the Contract
Act deals with communication,
acceptance and revocation of
proposals. The acceptance of a
proposal, inter alia, takes
place by any act or omission of
the party accepting. It must be
an act or omission by which he
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his acceptance or which has the
effect of communicating his
acceptance. These are matters of
fact to be decided on the facts
of each case. Section 10 of the
Contract Act reads as follows:
“10. What agreements are
contracts. All agreements are
contracts if they are made by
the free consent of parties
competent to contract, for a
lawful consideration and with
a lawful object, and are not
hereby expressly declared to
be void.
Nothing herein contained shall
affect any law in force in
India and not hereby expressly
repealed by which any contract
is required to be made in
writing1 or in the presence of
witnesses, or any law relating
to the registration of
documents.”
Thus, from the second part of
Section 10 of the Contract Act, it
is self-evident that it is not
essential to form a contract, that
it should be in writing. The second
part of Section 10, illustrated by
Section 19 of the Copyright Act,
1957 applies where a law stipulates
that a contract be in writing in
which case a contract must be
reduced to writing.”
5) Hotel New Metro v. UT of J&K & Ors. in
WP(C) No. 590/2023, wherein Hon’ble High
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Court of Jammu and Kashmir held as under:
“24. In terms of Order VIII Rule 3
of the Code of Civil Procedure, it
is not sufficient for a defendant in
his written statement to make a
general denial of the grounds
alleged by the plaintiff, he is
required to specifically deal with
each allegation of fact of which he
does not admit the truth and it is a
settled principle of law of
pleadings that if every allegation
of fact in the plaint is not denied
specifically or by necessary
implication, it shall be taken to be
an admission in terms of Rule 5 of
Order VIII of the Code. Now, when
law relating to admission is
examined in the light of Order XII
Rule 6 CPC, I need not say anything
more than what the legislature has
intended in its framework that where
admission of fact is made in the
pleadings or otherwise, the Court at
any stage of the proceedings has the
jurisdiction to pass such order or
give such judgment as it needs fit,
having regard to such admission. It
is also settled in law that such
admission includes one that can be
inferred from facts and
circumstances of a case without any
dispute, as held by Hon’ble Supreme
Court in “Charanjit Lal Mehra vs.
Kamal Saroj Mahajan“; 2005 (11) SCC
279. It is also settled in law that
facts admitted need not be proved in
terms of Section 58 of the Evidence
Act and a party’s admission isPage 34 of 95
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substantive evidence ex proprio
vigor.”
Submissions on behalf of the defendants
35. Learned Senior Advocate Mr. Deven Parikh
for the defendants submitted that there was a
revival agreement which was accepted by the
plaintiff bank and such revival agreement was
duly signed by defendant no.1 company and a
resolution was passed accepting the same.
However, this fact was held back from the
Court by the plaintiff bank. It was submitted
that sufficient material is present on record
in this matter to show that revival documents
were signed and delivered amongst the
parties. However, the person/institution who
is in possession of the document cannot
continue to keep the possession of the
document and claim that it has full control
over the document. It was submitted that as
the possessor i.e. plaintiff bank is not
ready to produce the revival document, hence
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adverse inference has been drawn by the Trial
Court in light of such facts. It was
submitted that the documents which were
signed by the Directors of the company are in
custody of the plaintiff bank and it ought to
have been produced by them. It was submitted
that a litigant owes it to the Court that if
there is something which goes to the crux of
the matter, the litigant ought to have
produced such documents before the Court and
if the documents were produced by the
plaintiff bank and were found to have been
signed by the bank, the matter would have
ended then and there as recovery suit would
not have been proceeded further.
36. Learned Senior Advocate Mr. Parikh
submitted that the loan was initially taken
in 1972 with the personal guarantee of two
Directors and not three Directors and
therefore, every time when there is an
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extension, a fresh guarantee from the
Directors is needed. It was further submitted
that in present case, two sets of documents
are produced by the plaintiff bank, first of
1972 and second of 1982. In 1972 set of
documents, two Directors were guarantors and
in 1982 set of documents, three Directors
were guarantors and therefore, when liability
was to be renewed in 1982, the bank had taken
fresh guarantees. It was therefore submitted
that for every renewal of facilities of
credit or for entering into a new agreement a
fresh guarantee or a document reflecting
continuing of guarantee is needed and the
same was sent to the plaintiff bank by the
defendant nos. 1 to 4 on 06.02.1985 and on
08.02 1985.
37. Learned Senior Advocate Mr. Parikh
submitted that the bank has not examined Mr.
Shah and Mr. Parekh of the bank and also have
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not produced its books. Further, the
defendant nos. 2 to 4 who were the Directors
of the company have discharged their original
onus of producing relevant documents and
however, the plaintiff bank has failed to
discharge onus to place on record relevant
documents, specifically the signed revival
document submitted to it. It was therefore
submitted that the Trial Court at the first
instance called for production of the signed
revival document and now, when the plaintiff
bank has not produced such document, an
adverse inference has rightly been drawn
against the plaintiff bank.
38. It was submitted that the plaintiff bank
has not denied the signing of revival
documents as evident upon perusal of Chief
examination of Shri Kiritbhai who was an
employee of the bank (Exh. 127).
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39. Learned Senior Advocate Mr. Deven
Parikh thereafter placed reliance on the
following documents:
1) Letter dated 02.02.1985 (Exh. 112 – Pg
no. 709 of the paper book) to submit that the
letter is genuine one and its contents should
be believed as true. It was submitted that
the said letter, is by the Director of the
defendant company addressed to the State Bank
of Saurashtra along with the revival
documents duly signed by the defendant no.1
company as well as the guarantors for revival
of credit facilities. It was submitted that
it was mentioned in the letter that the
Directors of the defendant no.1 company had
discussed the issue of notice dated
31.12.1984 given to the company with Mr.
Parekh, who was the General Manager of State
Bank of Saurashtra at its Head Office at
Bhavnagar and as per the discussion, the
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notices given were mere formal Notices and
were not to be acted upon.
2) Letter dated 08.02.1985 (Exh 114 – Pg 713
of the Paper book) addressed by the defendant
no.1 Company to Mr. V. B. Parekh, General
Manager of State Bank of Saurashtra wherein
it was mentioned that the defendant company
had received the revival documents which were
sent by the bank just a month ago which has
been confirmed by Mr. Shah on behalf of the
plaintiff bank. Further, for the process of
revival, all necessary actions/steps were
being taken by the defendant company as
discussed with the plaintiff bank which
included passing of new resolution, calling
the meeting of the Board Meeting at Bombay
etc. It was also addressed in this letter
that the counsel of the plaintiff bank would
seek adjournment from the Court for hearing
which was scheduled on 12.02.1985.
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3) Letters dated 08.02.1985 (Exhs. 115 to
117- Pg 717 to 723 of the Paper book)
addressed by the defendant no.1 Company to
State Bank of Saurashtra wherein it was
stated that the delay in sending revival
documents has incurred as the documents were
given in the month of January only. Further
the process of passing new resolution as
asked by the Head Office of the plaintiff
bank, the defendant no.1 company had called
meeting of the Board of Directors and after
passing of the resolutions necessary
signatures were to be obtained. It was also
addressed in the letter that the notices
given to the defendant nos. 1 to 4 were
merely formal in nature and need not be acted
upon if revival documents were submitted.
However, in spite of such facts being in
place and in knowledge of Mr. Parekh and Head
Office of State Bank of Saurashtra and in
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spite of submission of revival documents, the
plaintiff bank filed the suit against the
understanding arrived at between the Head
Office of the plaintiff bank and the
defendant no.1 company. It was also alleged
in the said notice that filing of suit by the
bank is a breach of promise and therefore it
was prayed that the suit filed by the
plaintiff bank may be withdrawn immediately.
4) Letter dated 09.02.1985 (Exh 118 – Pg 725
of the Paper book) addressed by the defendant
no.1 Company to the State Bank of Saurashtra
whereby the defendant company had requested
the plaintiff bank to send the documents to
the Bombay Office of the bank for getting the
signatures of Directors of the company who
were out of India but were expected to return
soon.
5) Resolution dated 24.01.1985 passed by
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Board of Directors of the defendant no.1
Company resolving to revive the then existing
Cash Credit Limit, H.P. Limit, O.D. Limit,
L.C. Limit, Guarantee Limit etc. which were
being enjoyed by the defendant Company and
that such benefits be continued and that the
existing executed documents in connection
with above various limits be revived. It was
also resolved that defendant no.2 Mr. D.N.
Mehta would be authorised to sign the revival
documents for and on behalf of the defendant
no.1 Company and the guarantee documents for
revival be signed by Shri D.N. Mehta, Shri
K.N. Mehta and Shri M.N. Mehta who were the
guarantors at the time of passing of the
resolution.
40. In premise of the aforesaid documents,
it was submitted that it is clearly evident
on reading of the letters that revival talks
were going on between the plaintiff bank and
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the defendant no.1 company in the past six
months before filing of the suit. The revival
documents were fructified, and agreement was
drafted, signed and sent by the bank to the
company. It was submitted that sending of
documents by the defendant no.1 company would
be after and not before the
agreement/acceptance of revival. It was also
submitted that during the relevant time
during 1985, it was a routine practice for
the banks to grant extension to
businesses/companies etc. for renewal/revival
of benefits enjoyed by the company and such
documents were sent back by the company after
signing them. It was submitted that the last
letter also refers to assurance given by the
plaintiff bank that if the defendant no.1
Company signs the revival document, the suit
filed by the plaintiff bank would be
withdrawn and the letter does not state that
if revival is agreed by the defendant no.1
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company, only then suit would be withdrawn.
It was therefore, submitted that the revival
was already agreed upon between the parties
and was also signed by the Directors of the
company at the time when letters dated
08.02.1985 were addressed and the signing of
such revival documents in front of the bank
officials was merely a technical issue. It
was submitted that it was also the stand of
the plaintiff bank that once the Directors
sign the document, the revival process would
be concluded.
41. In the context of submission of the
plaintiff bank that decree ought to have been
passed against all the defendant nos. 1 to 4
and not only against the defendant no.1
Company and the lower court has committed an
error in taking adverse inference against the
Directors, it was submitted that it was up to
the official liquidator of company in
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liquidation to file an appeal and the Trial
Court cannot be said to have committed any
error in decreeing the suit against the
defendant no.1 company only.
42. Learned Senior Advocate Mr. Parikh in
the alternative submitted that if the adverse
inference drawn by the Trial Court against
the plaintiff bank to dismiss the suit qua
defendant nos. 2 to 4 is not upheld then even
on merits, the guarantees given by the
defendants-Directors stand discharged in view
of provisions of section 133 and 134 of the
Indian Contract Act. Reliance was placed on
illustration (a) to section 134 to submit
that in view of the financial assistance of
cash credit on hypothecation of the goods by
the plaintiff bank, when the goods are not in
existence, the guarantees given by the
Directors would stand discharged.
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43. In support of his submissions learned
Senior Advocate Mr. Deven Parikh placed
reliance on the following judgements –
1) Hiralal And Others vs Badkulal and Others
reported in 1953 (0) AIR (SC) 225.
2) National Insurance Co. Ltd., New Delhi
Versus Jugal Kishore and Others reported in
(1988) 1 SCC 626.
3) Gurnam Singh And Others Versus Surjit
Singh and Others reported in 1975 4 SCC 404.
4) Eureka Forbes Limited Versus Allahabad
Bank and Others reported in (2010) 6 SCC 193.
5) Gopal Krishnaji Ketkar Versus Mohamed Haji
Latif & Others reported in AIR 1968 SC 1413.
6) ATYAM VEERRAJU AND OTHERS Versus PECHETTI
VENKANNA AND OTHERS reported in AIR 1966 SC
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629.
7) State of Madhya Pradesh v. Kaluram
reported in AIR 1967 SC 1105.
8) Amrit Lal Goverdhan Lalan (D) through
Legal Heirs v. State Bank of Travancore and
Ors. reported in AIR 1968 SC 1432.
9) The State Bank of Saurashtra v. Chitranjan
Rangnath Raja and Anr. reported in AIR 1980
SC 1528.
10) The Indian Bank, Madras v. Krishnaswamy
and Ors. reported in AIR 1990 Madras 115.
11) Syndicate Bank v. Pamidi Somaiah (D) and
Anr. reported in AIR 2002 AP 12.
12) Satish Chandra Jain v. National Small
Industries Corpn. Ltd. and Ors. reported in
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AIR 2003 SC 623.
13) Neeraj Dutta Versus State (Government of
Nct of Delhi) reported in (2023) 4 Supreme
Court Case 731.
14) Lachhmi Narain Singh (Dead) Through Legal
Representatives and Others Versus Sarjug
Singh (Dead) Through Legal Representatives
and Others (2022) 13 Supreme Court Cases 746.
15) R.V.E. Venkatachala Gounder Versus
Arulmigu Viswesaraswami & V.P. Temple And
Another reported in (2003) 8 Supreme Court
Cases 752.
16) Dayamathi Bai (Smt) Versus K.M. Shaffi
reported in (2004) 7 Supreme Court Cases 107.
Points for determination
44. Considering the above submissions made
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by learned advocates for both the sides and
on perusal of the impugned judgment and order
passed by the Trial Court, following points
are framed for determination:
1) Whether in facts and circumstances of the
case, the Trial Court has erred in law in
drawing minimum adverse inference against the
plaintiff bank by answering issue no.4 in
favour of defendant nos. 2, 3 and 4?
2) Whether in facts and circumstances of the
case, the Trial Court has erred in law and on
facts in answering issue no.6 in affirmative
in holding that defendant nos. 2,3 and 4 have
proved that documents were renewed while
drawing minimum adverse inference against the
plaintiff bank?
3) Whether in facts and circumstances of the
case, the Trial Court has erred in law and in
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facts in holding that only Rs.3,62,15,577.61
is found due against defendant no.1 only in
answer to issue no.9?
4) Whether the Trial Court has erred in law
in answering issue no.10 to the effect that
the plaintiff bank is entitled to recover the
amount from defendant no.1 Company only?
Analysis and Findings
45. Considering the submissions made by the
learned advocates for the parties as well as
oral and documentary evidence on record, the
entire controversy revolves around impugned
Judgment of the Trial Court holding that
defendant nos. 2, 3 and 4 have proved that
the documents were renewed to draw minimum
adverse inference against the plaintiff bank
so as to dismiss the suit against defendant
nos. 2, 3 and 4.
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46. Therefore, the moot question that arises
for consideration is whether the
renewal/revival documents which were alleged
to have been submitted by the defendants with
the plaintiff bank were actually submitted or
not and if answer to this question is in the
affirmative, whether such submission of the
revival and renewal documents by the
defendant nos. 2 to 4 would caste an
obligation on the plaintiff bank to disclose
such facts in the pleadings and to produce
such revival documents before the Trial
Court, failing which, the Trial Court was
justified in drawing adverse inference
against the plaintiff bank so as to discharge
the defendant nos. 2, 3 and 4 from their
liability as guarantors for the amount
borrowed by the defendant no.1 company.
47. In order to analyse whether the Trial
Court was justified in drawing minimum
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adverse inference qua defendant nos. 2 to 4
only inspite of holding defendant no.1
company in Liquidation was liable for the
outstanding dues of the plaintiff bank so as
to exonerate defendant nos. 2 to 4 from the
joint and several liability as guarantors for
the financial assistance advanced to
defendant no.1 company by the plaintiff bank,
it would be germane to refer to the
undisputed facts emerging from the record as
under:
1) That defendant no.1 company availed the
financial borrowings from the plaintiff bank.
2) There were regular transactions carried
out by defendant no.1 company with the
plaintiff bank upto the date of its closure
on 11.02.1983.
3) The defendants have raised the objection
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only with respect to the debit entries made
by the plaintiff bank in the account of
defendant no.1 company after the closure of
Mills on 11.02.1983.
4) The defendant no.1 company was not able
to pay the outstanding dues of the plaintiff
bank inspite of the notice issued by the
plaintiff bank in the year 1985.
5) The documents executed between the
parties for availing the financial assistance
by the defendant no.1 company from the
plaintiff bank from the year 1972 till 1982
annexed with the plaint are not disputed.
48. On the basis of above undisputed and/or
admitted documents by the defendant nos. 1 to
4, the Trial Court has passed the decree for
recovery of outstanding dues of the plaintiff
bank from the defendant no.1 company.
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49. The defendant nos. 2 to 4 also have
admitted the personal guarantees given by
them to avail the financial assistance by
defendant no.1 company. However, defendant
nos. 2 to 4 have raised the principal
objection regarding the filing of the suit by
the plaintiff bank for ignoring the
submission of duly executed revival documents
signed by defendant nos. 2 to 4 prior to or
during the period of filing the suit by the
plaintiff bank and not disclosing this fact
in the pleadings. Therefore, defendant nos. 2
to 4 have vehemently objected filing of the
suit by the plaintiff bank on the basis of
the documents which were already executed
which would have ceased to operate in view of
the revival documents submitted by defendant
nos. 2 to 4. Further objection was raised by
defendant nos. 2 to 4 for non production of
the revival documents by the plaintiff bank
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inspite of specific demand being made by the
defendant nos. 2 to 4 without any reasonable
explanation as such documents were relevant
for determination of the claim made by the
plaintiff bank for recovery of the
outstanding dues.
50. It is the case of the defendant nos. 2
to 4 that as the plaintiff bank has failed to
place on record the revival documents,
adverse inference qua plaintiff bank was
required to be drawn in view of principle of
Doctrine of Promissory Estoppel. Defendant
nos. 2 to 4 therefore, alleged that the
plaintiff bank has not filed the suit with
clean hands.
51. The trial Court passed the order dated
19.08.1981 below Exh. 152 and 154 as under:
“Order below Ex. 152 and 154 in
Special Civil Suit No. 13/1985.
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Ex;-
1. This is a suit in which final
arguments are heard. After the
hearing of final arguments, the
defendants have filed both these
applications to permit them to
produce some documentary evidence.
The said applications for permission
to produce documentary evidence has
been strongly objected by the
learned advocate of the plaintiff
and the plaintiff’s advocate has
filed written objection at Ex. 153.
I have heard the arguments of both
the advocates of the parties at
length.
2. In the present suit, no doubt,
final arguments are heard, but
judgement is not pronounced till
today. This is not a case in which
defendants should be deprived from
giving evidence only on the ground
of late production of the documents
annexed with Ex. 152 and 154.
According to the defendants this is
an important document which may
enlight to the disputed issues.
These documents are prima facie
relevant documents and according to
my view if opportunity will be given
to the defendants by allowing them
to produce documents, which would be
in interest of the justice and on
the other hand the plaintiff will
not loose anything. Hence, according
to my view, this is a fit case to
allow both these applications Ex.
152 and 154.
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3. For the reasons stated above I
pass following order.
ORDER.
The applications Ex. 152 and 154
both are allowed. Defendants are
permitted to produce evidence
annexed with both these
applications.
Cost shall be in cause.”
52. The Trial Court thus permitted defendant
nos. 2 to 4 to lead the evidence at the end
of the trial so as to prove the case for
drawing adverse inference against the
plaintiff bank in order to exonerate
defendant nos. 2 to 4 from their liability as
guarantors for the outstanding dues of the
plaintiff bank. The defendant nos. 1 to 4
therefore, tried to justify that they had
submitted the duly executed revival documents
with the plaintiff bank by examining one Mr.
Kanaiyalal Mohanlal (Exh.157) who was the
Peon of defendant no.1 company. It is the
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case of the defendant nos. 1 to 4 that said
Kanaiyalal Mohanlal was working as a Peon
with defendant no.2 Director after closure of
the defendant no.1 company on 11.02.1983 and
was doing work of local delivery of the
letters at Porbandar.
53. Mr. Kanaiyalal Mohanlal has deposed in
his examination-in-chief at Exh.157 that
during the period between 06.02.1985 and
08.02.1985, he had delivered certain letters
to the plaintiff bank at its Porbandar branch
and entries for the same was made in the
Delivery Peon Book and the concerned employee
of the plaintiff bank also had made initials
in the said Delivery Peon Book as an
acknowledgment for receipt of such documents
by the plaintiff bank.
54. On perusal of the deposition of Mr.
Kanaiyalal Mohanlal at Exh. 157 and his cross
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examination by the plaintiff bank, it reveals
that the witness has shown ignorance as to
who had put the initial in the first entry
made against the date 06.02.1985 but he has
only stated that initial was made in his
presence.
55. With regard to the entry against the
date 08.02.1985, it was admitted by the said
witness Mr. Kanaiyalal Mohanlal that
neither name of Maharana Mills is written nor
there is any other indication to show that
the entry pertains to revival documents of
defendant no.1 company. It is also admitted
that entries in Peon Book were made by one
Mr. Gadhvi but what is stated in English
Language which refers to “Bhavnagar Message
and Documents Revived” are not the
handwriting of Mr. Gadhvibhai and the
handwriting of such writing is also different
from other writing in the Peon Book. Thus,
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analysis of the above deposition of Mr.
Kanaiyalal Mohanlal and his cross examination
it is revealed that defendant nos. 2 to 4
have tried to justify their stand that
revival documents were submitted but the same
were not produced by the plaintiff bank so as
to enable the Trial Court to draw an adverse
inference against the plaintiff bank to
dismiss the suit qua defendant nos. 2 to 4.
56. The Trial Court also heavily relied upon
the deposition and cross examination of the
said witness Mr. Kanaiyalal Mohanlal at
Exh.157 by believing the same as true to
conclude that defendant nos. 2 to 4 have
proved that revival documents were submitted
which were not produced by the plaintiff bank
on record to draw adverse inference to
dismiss the suit qua defendant nos. 2 to 4.
The Trial Court has held that cross
examination of the witness Mr. Kanaiyalal
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Mohanlal at Exh.157 is to be believed as it
cannot be said that he was narrating false
facts pertaining to the delivery of the
letters dated 06.02.1985 and 08.02.1985 with
the plaintiff bank and entries in the Peon
Book which is placed on record at Exh.158 was
therefore, believed to be maintained in due
course of the transactions.
57. In view of above facts emerging from the
record it would therefore, be necessary to
analyse as to when partial/minimum adverse
inference can be drawn on the same facts as
the Trial Court has not drawn any adverse
inference qua defendant no.1 company for
drawing decree for recovery of outstanding
dues of the plaintiff bank and has drawn
adverse inference against the plaintiff bank
to dismiss the suit qua defendant nos. 2 to 4
company in Liquidation on one hand and on the
other hand passing the decree in favour of
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the plaintiff bank qua defendant no.1 company
in Liquidation.
58. An adverse inference refers to the
conclusion drawn by the Court from the
absence or withholding of the evidence that
would normally be expected to be presented.
It implies that impugned evidence would have
been unfavourable to the parties withholding
it.
59. Therefore, in facts of the case, it is
required to be examined as to whether the
plaintiff bank has withheld the production of
revival documents alleged to have been sent
by the defendant nos. 1 to 4 prior to or
after filing of the suit or not. In the
evidence of witness of the plaintiff bank –
Shri Kiritkumar Mangalsinh Gohil recorded at
Exh.127 has deposed in the cross examination
that he was not aware that the bank had
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renewed the documents and the bank had not
produced such revival documents. It was
categorically deposed by the witness that
there is no file containing such documents
available from the record of the bank. Thus,
it is clear that the respondent bank has not
deliberately withheld documents of revival
which is alleged to have been signed by the
defendant nos. 1 to 4. As against that the
Trial Court has relied upon the evidence of
Peon Mr. Kanaiyalal Mohanlal at Exh.157 which
was permitted to be taken by the Trial Court
by order below applications Exh. 152 and
Exh.154 at the fag end of the trial. As
discussed here-in-above, the evidence of
Kanaiyalal Mohanlal at Exh. 157 only refers
to the Peon Book containing the entries made
therein on 06.02.1985 and 08.02.1985 without
pointing out as to what type of documents
were submitted with the plaintiff bank.
Merely because the Peon Book is produced on
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record by defendant nos. 2 to 4, same cannot
be considered as conclusive evidence to hold
that the revival documents were submitted
with the plaintiff bank and the plaintiff
bank has deliberately withheld the same. The
discussion made by the Trial Court in para
no.9 of the impugned judgment and order in
this regard reads as under:
“9. As per the contents of the above
stated letters in correspondence
with plaintiff bank by the defendant
no.1, it is crystal clear that at
the time of about the filing of the
present suit, there was a serious
consideration about the revival of
documents between the parties and as
per the contents of above stated
letters, it is proved beyond doubt
that the new documents had been
executed in favour of the plaintiff
bank by the defendants and the
defendants have delivered the said
documents to the plaintiff bank. The
plaintiff bank has not specifically
denied the contents of the above
letters or the facts of telephonic
talk between Shri D.N. Mehta and
General Manager Shri parekh. The
plaintiff bank is quite silent about
the facts of letters and the
execution of the new documents but
it is proved by the contents of the
above stated letters that the newPage 65 of 95
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documents had been executed by the
defendants in favour of the
plaintiff bank. I cannot understand
why the plaintiff bank was reluctant
during the trial to produce the new
revival documents inspite of
specific serious dispute raised by
the defendants. It is proved that
the new revival documents were
executed and all documents are in
the possession and power of the
plaintiff bank. The plaintiff bank
ought to have produced all these new
revival documents to show its
bonafide, but the plaintiff bank has
not chosen fit to produce the said
documents and made themselves liable
for consequences. When the
defendants has taken specific plea
in written statement pertaining to
the new revival documents, it was a
duty of the plaintiff bank to
produce the documents in the
proceeding to enable the court to
find out what is the truth. But the
plaintiff bank has not produced any
documents to give an opportunity of
perusal to the court. The new
revival documents are relevant for
the determination of the present
suit and it is not produced by the
plaintiff bank. Hence, I have reason
to believe that, if the new revival
documents would produce by the
plaintiff, the decision would be
against the plaintiff Hence, this is
a fit case to draw adverse inference
against the plaintiff for the non-
production of new revival documents
as the plaintiff bank has deprived
this court from perusing the saidPage 66 of 95
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documents. The plaintiff bank is a
nationalised bank which is working
for the interest of public at large
and this action on the part of the
plaintiff bank is not just, fair and
reasonable. Every public institute
expected to be acted in a just, fair
and reasonable manner and in the
interest of the public at large but
the plaintiff bank has acted in the
present suit in most unjust and
unequitable manner. I cannot
understand why the plaintiff bank
was reluctant to produce new revival
documents. The plaintiff bank ought
to have not to conceal anything from
the court and high standard of
bonafide has been expected from the
public institute. The plaintiff Bank
has suppressed material and relevant
documents from the court and
plaintiff bank is not appeared with
clean hands before this court. The
learned advocate Shri Bhatt argued
that the new revival documents if it
is executed was not complete
document on the date of filing the
suit and those documents are also
not relevant for the determination
of the present suit. As stated
earlier the fact of new revival
documents has been duly proved and
it is in the possession and powers
of the plaintiff bank. However, the
learned advocate Shri Bhatt has not
declared before this court whether
the documents were executed or not.
Apart from the fact of relevancy of
documents why the plaintiff bank has
deprived this court from perusing
the said documents. If documentsPage 67 of 95
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were not completed on the date of
filing of the suit, naturally and
automatically this court would
discard those documents. But, the
plaintiff bank has deprived this
court from perusing the new revival
documents is a sufficient fact to
draw “adverse inference” against the
plaintiff bank. In my above
discussion, I am supported by the
observation made by the Hon’ble
Supreme Court in case of National
Insurance Col Ltd., V/S. Jugal
Kishor and others A.I.R. 1986 S.C.
at page 719. In this reported ruling
the Hon’ble Supreme Court has
observed on page no. 723 that“This court has consistently
emphasised that it is the duty
of the party which is in
possession of a document which
would be helpful in doing
justice in the cause to produce
the said document and such party
should not be permitted to take
sheltter behind the abstract
doctrine of burden of proof.
This duty is greater in the case
of instrumentalities of the
state such as the appellant who
are under an obligation to act
fairly.”
60. Reliance was placed by the Trial Court
on the decision in case of National Insurance
Co. Ltd. v. Jugal Kishor and others reported
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in AIR 1988 SC 719 wherein it is held that it
is the duty of the party which is in
possession of a document which would be
helpful in doing justice in the cause to
produce the said document and such party
should not be permitted to take shelter
behind the abstract doctrine of burden of
proof. Such dictum of law however can be
applied only if it is proved that the revival
documents were in possession of the plaintiff
bank. When the witness of the plaintiff bank
has stated in the cross examination that no
documents are available on the file of the
plaintiff bank then the trial Court could not
have relied upon the witness of the
defendants at Exh. 157 to draw adverse
inference against the plaintiff bank only qua
defendant nos. 2 to 4.
61. It is pertinent to note that the
plaintiff bank has filed the suit for
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recovery against defendant no.1 company and
joined defendant nos. 2 to 4 as guarantors to
recover such dues on joint and several basis,
however, the Trial Court has passed the
decree in favour of the plaintiff bank for
recovery from defendant no.1 company by
observing as under:
“10. The whole suit of the plaintiff
bank is liable to the dismissed as
the adverse inference has been drawn
against the plaintiff bank, but I
would not like to dismiss the whole
suit of the plaintiff because the
transaction with the plaintiff bank
upto the date of closing the mill on
11-2-1983 has been specifically
admitted by the defendants in the
written statement Ex. 43. The
plaintiff is a nationalised bank.
There would be no personal interest
of anybody. The defendant no.1 Mills
have enjoyed the bank facility and
financial assistance from the
plaintiff and this fact is also an
admitted fact of the defendants and
hence, it becomes the duty of this
court that minimum loss or damage
caused to the plaintiff by drawing
“adverse inference” against the
plaintiff bank.”
62. The reasoning given by the Trial Court
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is that because the transaction with the
plaintiff bank upto the date of closure of
mill on 11.02.1983 has been specifically
admitted by the defendants in the written
statement at Exh.43 and there would be no
personal interest of anybody to withhold the
revival documents and defendant no.1 Company
had enjoyed the financial assistance and
therefore, it was the duty of the Court to
see that minimum loss or damage is caused to
the plaintiff bank by drawing adverse
inference against the plaintiff bank and
therefore, the Trial court only drew adverse
inference against the plaintiff bank qua
defendant nos. 2 to 4 which is nothing but
perverse findings.
63. The Trial Court has drawn adverse
inference only on presumption that there must
be some change or variation or modification
in the terms of guarantee or personal
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liabilities of the Directors of defendant
no.1 company. This is nothing but perverse
findings arrived at by the Trial Court by
presuming that there would be some change or
variation or modification in the terms of
guarantee and there would not be any other
change in the so called revival documents
which were never executed by both the
plaintiff bank and defendant nos. 1 to 4. The
findings arrived at by the Trial Court by
drawing adverse inference only qua defendant
nos. 2 to 4 by believing that there is
something against plaintiff bank pertaining
to the guarantee given by the Director
personally in the revival documents and in
view of such adverse inference, discharging
defendant nos. 2 to 4 from their personal
liability by way of guarantee given to the
plaintiff bank, is not tenable in law.
64. The Trial Court therefore, could not
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have drawn adverse inference by presuming
that the revival documents would contain some
variation or modification in terms of
guarantee and there would not be any other
modification or variation. Therefore, drawing
of such partial adverse inference by the
Trial Court is liable to be set aside. In
this context, it would be necessary to refer
to the observations made by the Trial Court
in para nos. 11 and 12 which reads as under:
“11. As per my above discussion, it
is clear that the new revival
documents has been executed in
favour of the plaintiff bank but
they are not producing in this
proceedings, and “adverse inference”
has been drawn against the
plaintiff. Now, talking the fact of
enjoying bank facilities and
financial assistance by the
defendant no.1 Mills as an unignored
fact, it would be a question that
what would be the fact in the new
revival documents which would be
against the plaintiff bank? The only
presumption is that there must be
some charge or variation or
modification in the terms of
guarantee or a personal liabilities
of the Directors of the defendant
no.1 Mills i.e. defendants nos.2, 3Page 73 of 95
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and 4. Hence, by drawing adverse
inference, we can believe that there
is something against the plaintiff,
pertaining to the guarantee given by
the Directors personally in new
revival documents and in view of
adverse inference the defendants
nos. 2,3 and 4 stands discharged
from their personal liabilities by
way of guarantees given to the
plaintiff bank.
12. As per my above discussion, it
is proved that new revival documents
had been executed between the
parties and it is not produced and
as stated earlier in view of adverse
inference drawn against the
plaintiff bank. There must be some
variation pertaining to the
guarantee. Under the provisions of
sec. 133 of the Indian contract Act
any variance made in the terms of
contract between the principle and
debtors without the consent of the
guarantor, the guarantors stands
discharged from the transaction
carried out by the creditors and
debtors. In the present case before
me, the plaintiff bank is a creditor
and the defendant no. 1 Mills is a
debtor and the Directors of
defendant No. 1 i.e. defendants
nos. 2, 3 and 4 are the sureties or
guarantors in their personal
liabilities between the transactions
of plaintiff bank and defendant
no.1. In view of provision sec. 133
of the Indian contract Act, the
plaintiff bank is failed to prove or
establish the consent of defendantsPage 74 of 95
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nos, 2, 3 and 4 in their personal
capacity in transaction i.e. at the
time of executing new revival
documents and by drawing adverse
inference with aid of sec. 133 of
the Indian contract Act, the
personal liabilities of the
defendant nos.2 3 and 4 stands
discharged.”
65. On perusal of the above findings
recorded by the Trial Court, in our opinion,
by drawing adverse inference against the
plaintiff bank and as per the provisions of
section 114 of the Evidence Act read with
section 133 of the Indian Contract Act, the
Trial Court has committed an error of law in
holding that the plaintiff bank has failed to
prove or establish the consent of defendant
nos. 2 to 4 in their personal capacity in
transaction i.e. at the time of execution of
the revival documents on the basis of adverse
inference.
66. If the revival documents are to be
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believed to have been executed then no decree
could have been passed by the Trial Court
against defendant no.1 company in favour of
the plaintiff bank. Thus, the Trial Court has
in order to exonerate defendant nos. 2 to 4
has arrived at a presumption which clearly
shows the biased approach by the Trial Court
in favour of defendant nos. 2 to 4.
67. The Trial Court has also brushed aside
the contention raised on behalf of the
plaintiff bank that application at Exh.47
filed by the defendants for the production of
the documents in question under provision of
Order XI and Rule 14 of the Code of Civil
Procedure, 1908 has been rejected vide order
dated 05.08.1987 and no adverse inference can
be drawn against the plaintiff for the point
regarding the documents in question.
68. The Trial Court brushed aside such
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contention by referring to the order passed
below Exh. 47 to hold that the stage of the
suit at the time of adjudication of Exh.47
was a preliminary stage and therefore, it was
observed by the Court that “in that
circumstances, at present, I do not see any
necessity to pass the order for production of
the documents as prayed for by the
defendants”. The Trial Court was of the
opinion that the learned predecessor Judge
might not have found necessity for production
of the documents at that stage which does not
mean that the document in question would not
be relevant at any stage during the trial.
The observations made by the Trial Court in
para no. 16 reads as under:
“16. The learned Advocate Shri C. D.
Purohit on behalf of the plaintiff
argued that the defendants have
filed an application Ex. 47 for the
production of documents in question
under the provisions of order 11,
rule 14 of the Code of Civil
procedure and that application has
been rejected by this court on 5-8-Page 77 of 95
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87 and hence, no adverse inference
can be drawn against the plaintiff
or the point regarding the documents
in question is out of scope. I do
not agree with the arguments of the
learned advocate Shri C.D. Purohit.
This court has specifically observed
in order below EX. 47 that “in that
circumstances at present, I do not
see any necessity to pass the order
for the production of the documents
as prayed for by the defendants,”
The stage of the suit at the time of
adjudication of Ex. 47 was a
preliminary stage and perhaps my
learned predecessor Judge might have
not find necessity the document in
question at that stage. But, it does
not mean that the documents in
question would be not relevant at
any stage during the trial. The
defendants have specifically stated
in their pleading in the written
statement at EX. 43 that the
documents in question as discussed
above are quite relevant and in
absence of those documents, the
legal position would be different.
During the trial, before examination
of the plaintiff’s any witness, the
defendants have given notice to the
plaintiff to produce the documents
in question or the witness of the
plaintiff should remain present in
the Court with the documents in
question. However, inspite of
specific case of the defendants and
frequent demand for production of
the certain new revival documents.
Hence, it was the duty of the
plaintiff bank to produce the
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documents atleast at the time of
examination of its witness. The
necessary observation and discussion
has been made by me in earlier
paragraphs. For these reasons, I do
not agree with the above arguments
advanced by the learned advocate
Shri C.D. Purohit on behalf of the
plaintiff bank.”
69. On perusal of the above findings, it is
clear that the Trial Court has failed to
appreciate that unless there is an order
passed by the Court to produce the revival
documents by the plaintiff bank, no adverse
inference could have been drawn against the
plaintiff bank. When it has come on record in
the deposition of the witness of the
plaintiff bank that no such documents are
available on the file of the plaintiff bank,
more particularly, when application at Exh.47
was rejected by the Trial Court, merely
because a request was made by the defendants
to produce such documents, the duty could not
have been fastened upon the plaintiff bank to
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produce the documents to draw adverse
inference in favour of defendant nos. 2 to 4
only.
70. On perusal of application at Exh.47, it
appears that it was an application dated
12.12.1986/15.01.1987 wherein the defendants
had called upon the plaintiff bank to produce
the documents containing the exchange of
letters in the year 1984, 1985 and 1986 for
different accounts, exchange of telegrams,
minutes of conferences which had taken place
in the year 1984 during the said period,
documents executed during the year 1984-1985.
The Trial Court passed the following order
below Exh.47 on 05.08.1987:
“ORDER BLOW EX, 47.
1. Heard the learned advocate for
the defendant and learned advocate
for the plaintiff and read the
application and reply (Ex. 48). By
this application, the defendant
sought the production of documents
under the provisions of 0.11 R. 14Page 80 of 95
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of Civil Procedure Code, the
plaintiff bank has filed this suit
against the defendants for the
recovery of Rs. 3,98,54,766-30/- The
defendant No.1, is a Limited company
and defendant No.2 to 4 are the
Chairman and Directors respectively.
It is the case of the plaintiff that
on request of the defendants, the
plaintiff bank granted various cash
credit facilities to the defendant
No.1, and defendant No.1, had taken
advances under Various accounts.
After that, the defendants have
failed to repay as per the term, so
the plaintiff bank file this present
suit for the recovery of dues again
the defendants. Along with plaint,
the plaintiff has produced, all
relevant documents. In written
statement, (Ex.43), the defendant
No.1, has admitted suit transaction
with the plaintiff bank.
2. By this present application, the
defendant has sought production of
the correspondence and telegrams and
proceedings of the meetings and
documents. All this documents are
within the knowledge of the
defendants under the provisions of
0.11 R. 14 of C.P.C.. Court may pass
the order of production of documents
relating to any matter in question.
Which is in the possession of the
other side. In the present case, the
plaintiff suit is based on bank
account and on the documents, which
have been executed by defendants in
favour of the plaintiff bank and
production, which is sought by thePage 81 of 95
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defendants are within the knowledge
of the defendants. So, in that
circumstances at present I do not
see any necessity to pass the order
for the production of the documents
as prayed for by the defendants.
With this consideration, the present
application, deserves to be
rejected. So, I pass the following
order.
ORDER
Application is hereby stood
dismissed."
71. On perusal of the above order together
with application at Exh.47, it appears that
there was no demand for production of revival
documents from the plaintiff bank and even
otherwise if it is presumed that the revival
documents were called for from the plaintiff
bank, the Trial Court has rejected the same.
In view of such facts and considering the
following decisions of the Hon’ble Apex
Court, no adverse inference could have been
drawn by the Trial Court partially against
defendant nos. 2 to 4 by presuming that there
would be some modification or change in the
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terms of guarantee in the revival documents:
1) Hiralal And Others vs Badkulal and Others
reported in 1953 (0) AIR (SC) 225 wherein
the Hon’ble Apex Court held that a practice
has grown up in the Indian procedure that
those in possession of important documents or
information lying by, trusting to the
abstract doctrine of the onus of proof, and
failing, accordingly, to furnish to the
courts the best material for its decision.
With regard to third parties this may be
right enough they have no responsibility for
the conduct of the suit; but with regard to
the parties to the suit it is, an inversion
of sound practice for those desiring to rely
upon a certain state of facts to withhold
from the court the written evidence in their
possession which would throw light upon the
proposition.
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2) National Insurance Co. Ltd., New Delhi
Versus Jugal Kishore and Others reported in
(1988) 1 SCC 626 wherein Hon’ble Apex Court
held that it is the duty of the party which
is in possession of a document which would be
helpful in doing justice in the cause to
produce the said document and such party
should not be permitted to take shelter
behind the abstract doctrine of burden of
proof. This duty is greater in the case of
instrumentalities of the State such as the
appellant who are under an obligation to act
fairly. It is the obligation of the party in
possession of a helpful document to produce
it in court to ensure justice is served. The
Court held that an insurance company wishing
to cap its liability at the statutory minimum
must explicitly file a copy of the policy.
Failing to produce this vital document
prevents the company from taking shelter
behind the doctrine of burden of proof.
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3) Gurnam Singh And Others Versus Surjit
Singh and Others reported in 1975 4 SCC 404
wherein Hon’ble Apex Court held that in view
of the omission to file the most important
document, it was not possible to ascertain
the dispute or issue in the case. The
omission to file a document which was in the
power and possession of the appellants
entitled the High Court to draw an adverse
inference against the appellants and in that
view, they had allowed the appeal and
dismissed the suit. The suppression of the
document justified the drawing of an adverse
Inference that if it was produced, it would
have established the appellant’s case.
4) Eureka Forbes Limited Versus Allahabad
Bank and Others reported in (2010) 6 SCC 193
wherein Hon’ble Apex Court held that it is an
accepted precept of appreciation of evidence
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that a party which withholds from the Court
best evidence in its power and possession,
the Court would normally draw an adverse
inference against that party. In any case,
the bona fide of such a party would
apparently be doubted. the Maxim Nullus
commodum capere potest de injuria sua propria
has a clear mandate of law that, a person who
by manipulation of a process frustrates the
legal rights of others, should not be
permitted to take advantage of his wrong or
manipulations. Hon’ble Apex Court held as
under:
“37. It is an accepted precept of
appreciation of evidence that a
party which withholds from the Court
best evidence in its power and
possession, the Court would normally
draw an adverse inference against
that party. In any case, the bona
fide of such a party would
apparently be doubted. The appellant
was possessed of best evidence in
regard to the goods of which they
had taken possession on 7th August,
1987, in fact were hypothecated to
the Bank. These goods including
machines were sold by the appellantPage 86 of 95
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prior and subsequent to the issue of
the advertisement dated 12th March,
1988. Thus, the best evidence in
this regard, was obviously in
appellant’s power and possession
which they did not produce before
the Court despite prolonged
litigation. As such, we would have
no hesitation in drawing some
adverse inference against the
appellant in this behalf.”
5) Gopal Krishnaji Ketkar Versus Mohamed Haji
Latif & Others reported in AIR 1968 SC 1413
wherein it was held that even if the burden
of proof does not lie on a party the Court
may draw an adverse inference if such party
withholds important documents in his
possession which can throw light on the facts
at issue. It is not a sound practice for
those desiring to rely upon a certain state
of facts to withhold from the Court the best
evidence which is in their possession which
could throw light upon the issues in
controversy and to rely upon the abstract
doctrine of onus of proof.
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6) ATYAM VEERRAJU AND OTHERS Versus PECHETTI
VENKANNA AND OTHERS reported in AIR 1966 SC
629 wherein it was held that whether or not
a permanent tenancy was granted is a question
of construction of the Sanad. Only the Sanad
could have shown what interest was rented by
it. The most striking feature of the case
which tilted the scales against the
defendants was non-production of the Sanad.
The defendants deliberately withheld the
Sanad and therefore, they could made
presumption against the defendant to their
disadvantage consistent with the facts. The
court held that, if produced, the Sanad would
have shown that the tenancy is not permanent.
7) State of Madhya Pradesh v. Kaluram
reported in AIR 1967 SC 1105 wherein it was
held that, a creditor loses its right against
a surety if it negligently allows the
principal debtor to dispose of the secured
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goods, thus impairing the surety’s eventual
remedy to recover their losses. Further, S.
141 is not restricted strictly to the formal
“property in the goods” passing, but
encompasses any active security the creditor
holds to protect the debt. Because the
State’s inaction allowed the goods to be
removed, the eventual remedy of the surety
against the principal debtor was impaired.
Under the rules of equity and Section 141,
the Court held the surety was discharged to
the extent of the value of the security lost.
8) The State Bank of Saurashtra v. Chitranjan
Rangnath Raja and Anr. reported in AIR 1980
SC 1528 wherein it was held that under
Section 141 of the Indian Contract Act, 1872,
a surety is discharged from liability to the
extent of the security lost if the creditor
negligently parts with or loses the principal
debtor’s pledged goods. The Court established
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that a creditor has an obligation to
safeguard securities entrusted to them. Under
Section 141, a surety is entitled to the
benefit of every security the creditor has
against the principal debtor at the time the
contract of suretyship is entered into.
Because the Bank’s negligence impaired the
surety’s eventual right to step into the
creditor’s shoes and recover the debt from
the pledged assets, the surety is discharged
to the extent of the value of the lost
security.
9) The Indian Bank, Madras v. Krishnaswamy
and Ors. reported in AIR 1990 Madras 115
wherein the hon’ble Madras High Court
examined the rights of a creditor against
guarantors and affirmed that when a Bank
executes a fresh arrangement with the
principal debtor without the surety’s
consent, it amounts to novation, discharging
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the surety from liability.
10) Syndicate Bank v. Pamidi Somaiah (D) and
Anr. reported in AIR 2002 AP 12 wherein the
Hon’ble Andhra Pradesh High Court held that
if a suit abates against a deceased principal
debtor, the liability of the surety is
consequently extinguished. The court ruled
that since the surety’s obligation is co-
extensive and collateral, the discharge of
the principal debt removes the legal basis
for pursuing the surety.
72. With regard to the contention raised on
behalf of the defendant nos. 2 to 4 that
the guarantees given by them would stand
discharged in view of the extinguishment of
the security i.e. hypothecation of the
stock for which cash credit limit was
sanctioned by the plaintiff bank is
concerned, defendant no.1 company at the
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relevant point of time had also given the
collateral security by way of mortgage of
immovable property and defendant nos. 2 to
4 have given the security as personal
guarantee and therefore, it cannot be said
that the guarantees would be discharged as
there is no dispute with regard to the
terms and conditions of the guarantees. The
Trial Court has not gone into this aspect
nor any finding is arrived at by the Trial
Court. Even on perusal of the Ledger
Account at page no. 753 of the paper book,
it clearly shows that there were
outstanding dues in the cash credit account
of defendant no.1 company with the
plaintiff bank which has turned into Non
Performing Asset (NPA) after closure of the
business on 11.02.1983. In view of above
factual scenario, reliance placed on the
various decisions in supports of such
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contention would not be applicable in facts
of the case.
73. In view of above conspectus of law, the
trial Court was not justified in drawing
the adverse inference against the plaintiff
bank and in favour of defendant nos. 2 to 4
only. Therefore, point of determination
nos. 1 to 4 are answered in the
affirmative.
74. So far as point for determination no. 5
is concerned, the appeal is already
dismissed qua defendant no.5 by the order
dated 23.01.2023 as the appellant bank
failed to serve the defendant no.5 bank.
Therefore, findings regarding issue no.13
framed by the Trial Court that the
plaintiff bank alone is not entitled to
recover the amount from the hypothecated
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and mortgaged property of defendant no.1
and there is charge of defendant no.5 also
is not required to be considered.
75. So far as adverse inference is drawn
against the plaintiff bank to dismiss the
suit qua defendant nos. 2 to 4, the decree
is accordingly ordered to be modified by
decreeing the suit against the defendant
nos. 1 to 4 to pay Rs.3,62,15,577.61
(Rupees Three Crores sixty two lakhs
fifteen thousand five hundred seventy seven
and sixty one paise only) to the plaintiff
bank with interest at the rate of 12% per
annum jointly and severally from the date
of the suit till the decretal amount is
realised by the plaintiff bank. The
plaintiff bank is entitled to recover the
said amount from the defendant nos. 1 to 4.
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76. For the foregoing reasons, the appeal
is partly allowed. Decree be drawn in the
aforesaid terms. No order as to cost.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
After pronouncement of the Judgment, learned
advocate Mr. Vidit S. Sharma for the respondent
No.4 prays that the operation and the
implementation of the Judgment may be stayed for
a period of four weeks.
In view of the fact that the Trial Court has
already exonerated the defendant no.4 as the suit
was dismissed against the defendant no.4, the
operation and implementation of the judgment
shall not come into effect till 23rd August, 2026.
(BHARGAV D. KARIA, J)
(L. S. PIRZADA, J)
RAGHUNATH R NAIR
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