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State Bank of India Versus Smt. Mangalabai G. Deshmukh and Ors.

2005 (2) TMI 879 - BOMBAY HIGH COURT

S.A. No. 142 of 1988 - Dated:- 1-2-2005 - K.J. Rohee, J. For the Appellant: G.R. Agrawal, Adv. For the Respondent: A.S. Chandurkar, Adv. JUDGMENT K.J. Rohee, J. 1. The appellant original defendant No. 1 (hereinafter referred to as the 'Bank') preferred this appeal against the judgment of the District Judge, Yavatmal in Regular Civil Appeal No. 112 of 1985 decided on 30th March, 1988 directing the Bank to return the gold ornaments to the respondents i.e. original plaintiff Nos. 1 to 3 and .....

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/18 and 27/19 were operated. On the same day Gopalrao Deshmukh gave a declaration in writing (Exh. 21) that the gold ornaments belonged to him and no other person has any claim against them. On L4-7-1979 Gopalrao Deshmukh also executed a promissory note in favour of the Bank as a security for the loan. On 8-2-1982 Gopalrao Deshmukh died leaving behind him his widow (plaintiff No. 1), son (plaintiff No. 2) and daughters (plaintiff No. 3 and defendant No. 2). 3. After the death of Gopalrao Deshmuk .....

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uted against the Bank requiring the Bank to accept for amount of loan advance with interest as on 31-8-1982 and to deliver the gold ornaments to any of the plaintiffs. 4. The Bank resisted the claim. According to the Bank it recognizes the right of the plaintiffs to redeem the gold ornaments provided they prove their right to the ornaments. Since the plaintiffs did not produce any documentary evidence about their right to redeem the ornaments, the Bank refused to return the ornaments to the plai .....

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; the plaintiffs were not entitled for return of the gold ornaments. The learned trial Judge, therefore, dismissed the suit. 6. While deciding the appeal preferred by the plaintiffs the appellate Court held that the "Letters of Administration" were not necessary for claiming back the gold ornaments. The appellate Court allowed the appeal, set aside the judgment of the trial Court and directed the Bank to return the ornaments on payment of loan and interest to the plaintiffs or any pers .....

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paid by the plaintiffs. 8. After remand the appellate Court by its judgment dated 30-3-1988 allowed the appeal and held that "Letters of Administration" were not necessary and directed the Bank to return the ornaments to the plaintiffs or any person authorised by them on payment of principal amount of ₹ 22,283.14 ps plus interest at the rate of 13-50 per cent per annum for three months namely June 1982 to August 1982 on execution of security bond to the satisfaction of the Bank. .....

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the absence of non-discussion of the reasons of the trial Court by the appellate Court, the finding rendered by the appellate Court suffers from perversity and needs to be set aside. In this respect Mr. Agrawal placed reliance on the following cases : (i) T.D. Gopalan v. The Commissioner of Hindu Religious and Charitable Endowments, Madras [1973]1SCR584 , wherein the Apex Court observed as under (para 9) : "The uniform practice in the matter of appreciation of evidence has been that if the .....

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record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate Court must come into close quarters with the reasoning assignment by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it." (i .....

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the appellate Court has considered the reasons given by the trial Court and also given its own reasons for reversing the finding of the trial Court. Mr,. Chandurkar further submitted that even in the absence of the appellate Court discussing the reasons of the trial Court can give its own reasons for differing from the trial Court and in Second Appeal no interference can be made on that count. In this respect, he relied on the following cases : (i) Arumugham (dead) By LRs. v. Sundarambal [1999] .....

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of the judgments of the appellate Court show that though it has not discussed in details the reasons given by the trial Court as regards necessity of "Letters of Administration", the appellate Court has given its own reasons while reversing the findings of the trial Court in this respect. As such it cannot be said that the appellate Court failed to perform its duty. 12. Mr. Agrawal further submitted that the pawnor is entitled to redeem the property only on payment of the amount of lo .....

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suit the plaintiffs never made an application for permitting them to deposit the loan amount. Hence the appellate Court was not justified in holding that the plaintiffs were liable to pay interest only for three months i.e. June-1982 to August 1982. Mr. Agrawal further submitted that even after the judgment of the appellate Court dated 30-3-1988 the plaintiffs have not deposited the loan amount. Hence the liability of the plaintiffs to pay interest for the entire period would continue. Mr. Agra .....

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cease on the giving of merely a notice unaccompanied by any actual tender of mortgage amount." (ii) Dhirendra Nath Sen v. Smt. Santasila Debi AIR1969Cal406 , wherein the principles laid down by the authorities have been summarised as follows : 1. Where a certain sum is payable and interest is payable thereon upon non-payment, a valid tender of the amount due will stop the further running of interest. 2. Such a tender to be valid must satisfy the following conditions : (b) A tender must be u .....

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1 Mah LJ 914 , wherein it is held that : "So long as there is no discharge of the liability by the defendant, he is not entitled to get back the gold ornaments. Further, so long as the liability is not discharged, he is liable to pay interest agreed to by him." 13. Mr. Chandurkar, the learned counsel for the respondents, on the other hand, submitted that it was not necessary to examine the son of plaintiff No. 1 because the Bank in its pleading admitted that it was the son of plaintiff .....

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e deceased in the name of the plaintiffs. Mr. Chandurkar further submitted that it had become clear to the plaintiffs that even if they repay the loan amount, the Bank would not return gold ornaments unless they produce "Letters of Administration". In such circumstances no prudent man would repay the loan when there was no possibility of returning of the gold ornaments. Mr. Chandurkar submitted that insistence of the bank for "Letters of Administration" was not proper and leg .....

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