Capt. Mohan M.Deshmukh and Anr. Vs Sangli Bank Ltd.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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REVIEW PETITION NO.9 OF 2007
IN
FIRST APPEAL NO.2046 OF 2005
Capt. Mohan M. Deshmukh...Petitioner.
Vs.

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ICICI Bank Ltd. Pune and ors...Respondents.

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Mr. A.V.Anturkar i/by Mrs. Vinita V. Bakre Shastry
for the Petitioner.

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Mr. Ashish Kamat with Mr. Nikhil Rajani i/by M/s. V.
Deshpande & Co. for the Respondents.

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CORAM : A.M.KHANWILKAR,J.
DATED : July 12, 2007.

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P.C.

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1.Heard counsel for the parties.

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2.By this petition, the original appellant seeks
review of the Judgment and Order dated 27.2.2006 passed
in First Appeal No.2046 of 2005. The review is sought
essentially on two grounds. Firstly, that the court
proceeded to rely on the evidence of the appellant
(cross examination) and has reproduced the same in
Paragraph-3 of the Judgment under review, which is
incorrect position. In Paragraph-3 of the Judgment the
relevant portion of the evidence has been reproduced,
which reads thus:

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"On 10.3.1989 the bank had sanctioned a loan of
Rs.1,25,000/-. The rate of interest was 17.5%

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p.a. at quarterly rest".

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Now the certified copy of the entire evidence on record
is produced which instead reads as follows:

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"On 10.3.1989 the bank had sanctioned a loan of
Rs.1,25,000/-. The rate of interest was 17.5%
p.a. without quarterly rests".

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.Relying on this factual position, the counsel
for the appellant contended that error apparent on the
face of the record has been committed by this court;
and that being the basis of the conclusion reached by
this court, the judgment under review deserves to be
recalled and the appeal be considered afresh.

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3.I shall straight way deal with the first
contention. Indeed, the counsel for the respondents is
not disputing the correctness of the abovesaid stand
taken regarding the incorrect reproduction of evidence
of the appellant. That however, does not take the
matter any further for the Appellant. For, the said
evidence was not the sole basis on which I proceeded to
decide the matter against the Appellant. This aspect
was placed as the last point for consideration, to
record the finding against the Appellant. In the first
place, I have found that the documentary evidence in the

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shape of Exh.26 which is a promissory note executed by
the appellant himself, the contents of the said document
have not been disputed. There is no cross examination
at the instance of the appellant to challenge the said
document. The cross examination however, is with
reference to documents at Exhs. 28 and 32. This is the
first and foremost consideration to deal with the matter
in issue against the appellant. Indeed, I have also
adverted to the relevant portion of the evidence in
Paragraph 3 of the judgment, as aforesaid. Even if the
latter reason was to be ignored, being founded on
incorrect assumption that will not be of any avail to
the appellant, unless the appellant was to succeed in
persuading the court to reverse the former finding
recorded in respect of Exh.26; namely, the promissory
note, which reinforces the obligation of the appellant
to pay interest compound at the rate of 17.5%p.a. at
quarterly rests. No other argument will be of any help
to the appellant.

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4.The second argument canvassed before this court
is that, this court did not advert to the crucial
documents such as Exh.29 and 30 which were already part
of the record. Those documents, in particular, Exh.30
clearly indicates that the appellant had agreed to pay
interest at the rate of 7.5% over the banking rate with
minimum of 17.5% per annum. None of these documents

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would require the appellant to pay interest at the rate
of 17.5% at quarterly rests. The argument seems to be
attractive but does not answer the first issue decided
against the appellant with reference to document Exh.26
in the judgment under review.

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5.To get over this position, the counsel for the
appellant has pressed into service decision of our High
Court reported in 1999(2) B.C.J. Page 76 in the case of

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Sangli Bank Ltd. Vs. Kanishka Investments Pvt. Ltd

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and others, in particular, Paragraphs 47 and 49 thereof.
Relying on the observations in this decision, it was
contended that the promissory note cannot be made basis
to answer the issue in favour of the bank whose claim in
the suit was essentially on the basis of loan agreement.
Terms of the loan agreement nowhere specify obligation
of the appellant to pay interest at the rate of 17.5 %
p.a. at quarterly rests. Even this argument will have

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to be rejected. For, I am in agreement with the
submissions of the counsel for the respondents that the
exposition in the reported case pressed into service is
in the fact situation of that case. In that case, the
court in the first place found as of fact that except
the loan agreement all other agreements executed by the
defendants were blank documents. On that finding, the
court proceeded to exclude those documents from
consideration. In Paragraph 47 of this reported

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decision, court went on to observe that different
documents namely promissory note, Letter of security,
Term Loan Agreement etc. are concerned, the rate of
interest quoted is "quarterly rests" whatsoever be the
rate of interest. As the court proceeded to exclude all
other documents except the loan agreement from
consideration, the point was answered against the bank
in that case. The finding of fact recorded in this
decision is that the promissory note did not

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specifically record any rate of interest to be paid by
the appellant . On the other hand, in the present case
the Promissory note Exh.26 which is admitted by the
appellant clearly specifies the rate of interest. It is
not the case of the appellant that the rate of interest
specified therein has been incorporated at a later point
of time after the execution of the said document, as was
the case in Kanishka Investments (supra). Moreover, in
the present case, it is not the case of the Appellant
that his signatures were taken on blank or unfilled
Promissory note or other relevant documents, which was
the case in the reported decision. On this reasoning,
the reported Judgment pressed into service will be of no
avail.

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6.Besides, I find substance in the argument of the
respondents that the documents Exhs. 29 and 30 do not
mention that the bank could not have charged interest

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exceeding 17.5% per annum with quarterly rests. That
commitment flows from the documents executed by the
Appellant, in particular, Exh.26, being the promissory
note.

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7.I am also in agreement with the contention of
the respondents that all these contentions were
available to the appellant to be argued at the time of
hearing of the appeal. Those contentions were not
raised at the appropriate stage, therefore, cannot be
the basis for review of the order on the ground of non
consideration. In any case, I have placed the
contentions of the appellant on record. I refrain to
make any further observation in this behalf.

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8.This review application is dismissed, being
devoid of merits.

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(A.M.KHANWILKAR, J.)

Capt. Mohan M.Deshmukh and Anr. v. Sangli Bank Ltd.

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Capt. Mohan M.Deshmukh and Anr. v. Sangli Bank Ltd.

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