BANK OF INDIA vs SMT N KALPANA on 18 July 2025

:FINAL ORDER:

1. This TA is filed by the applicant against the defendant seeking issuance of Recovery Certificate for Rs.14,05,45,500/- with further interest therein. It is the case of the applicant that the 1st defendant approached the applicant for Term Loan facility which was sanctioned initially a sum of Rs.57.00 Lakhs, thereafter Term loan of Rs.290.00 Lakhs, Working Capital Credit Limit of Rs.91.00 Lakhs were sanctioned and disbursed on 29.03.2010, Cash Credit limit of Rs.209.00 lakhs on 18.05.2012. The said facilities was periodically revised and enhanced making the term loan totaling Rs.806.00 lakhs; cash credit totaling Rs.300.00 lakhs and Working Capital Credit limit of Rs.225.00 lakhs.

2. In view of the above sanctioned facilities, the defendants have executed loan documents apart from extending the security by hypothecation over the movables and also the mortgage over the schedule property. It is contended by the applicant that, 3 TA/166/2017

despite availing the facilities obliging themselves to pay back the amount, the defendants failed in compliance of the terms of the agreement and also failed in making repayment which resulting Chronic defaults in the accounts. The applicant bank issued legal notice dated 10.10.2015, despite issuance of the same no repayment was forthcoming forcing the applicant to file this TA, seeking recovery for the due in aforementioned term loan, cash credit and Working Capital Credit Limit facilities.

3. The defendants had also filed their statement of objection, apart from the raising a counter claim which is to be dealt separately. The statement of objections the defendants contends that, it was only due to some irregularities in sanctioning of the loan, all these issues arise. The defendants also contends that, the defendant though approached the banking ombudsman by filing a complaint which stood dismissed against which the Writ Petition is filed before the Hon’ble High Court of Karnataka as W.P.No.42274/2015.

4. It is also contended that the applicant is not entitled for any reliefs from this Tribunal as the property claimed to be mortgaged are agricultural land and hence cannot be construed as a valid mortgage. It is further contended that the 1st loan was sanctioned was a crop loan which was availed by the defendant at 4 TA/166/2017

the instance of the Chief Manager of the applicant bank namely Sri. Dilip Laxman Shinde which was sanctioned on the assurance of the said Manager that the loan will be released on mortgaging the agricultural properties and with an intention that the land could be developed and get an agricultural income from the lands as per the projects proposed by the manager of the applicant bank. It is the case of the applicant that the applicant had suppressed the fact in the above application with malafide intention to overcome their lapses in sanctioning the loans.

5. It is further contended that, when the defendant No.1 finds it difficulty in meeting all the loan requirements and she intends to change the bank and to have fresh transactions with some other banks in the year 2009. At that time, the applicant’s bank manager has mentioned in the bank transactions pertaining to the 1st defendants accounts as “suit filed”. But the applicant bank has not initiated any recovery proceedings against the defendant No.1. The applicant bank has sanctioned loans on their own to overcome their lapses and to avoid to declare the first defendants loan as NPA and adjusted the loans without disbursing any amounts to the first defendant. According to defendant the failure of the defendant to carry on the business is due to wrong advise and misrepresentation by the applicant Manager and other higher officials, the first 5 TA/166/2017

defendant sustained heavy loss and another contention is that the signature of the defendants were obtained in blank papers and contents of the documents were filled up, subsequently to suit the applicant case.

6. It is further submitted that, the properties are not liable to be mortgaged for availing the loan for any commercial purposes. Therefore, the creation of equitable mortgage or deposit of title deeds in respect of the schedule properties which are agricultural lands are not sustainable in the eye of law. Counter Claim

7. Even though, no separate number is given, the same is dealt with separately as required under statute. The defendant who had raised the counter claim, had also contended that the application is to be dismissed in limine. The contention made in the written statement is reiterated in the counter claim. According to the defendant the said misguidance of the bank Manager lead the defendant to borrow more money and there was no further disbursement from the applicant bank as undertaken by the Manager. The further contended that the status of the defendant with the applicant as bank account is in default lead the defendant in capacitated from taking credit facilities from other bank is also stated in the counter claim.

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8. The defendant further alleges that, out of the loan sanctioned amounts, the major amount was adjusted to the outstanding of the earlier loan account of the 1st defendant, which the defendant alleged is done without his prior consent. The defendant pointed out that they faced difficulty in carrying the business due to non-release of the fund at the right time and the bank had obtained signature from the defendant on blank documents. It is further contended that had applicant bank provided financial assistance at the right time, the 1st defendant would not only have made profit but would have repay the loan amount to the applicant bank on time. This further alleged that, as the result of the above act of attributed to the applicant bank, the defendant had suffered huge loss in the business altogether amounting to not less than Rs.23.677 Crores, as the defendants turn over has come down from Rs.16,74,02,308/- to Rs.5,27,38,792/- due to above. The defendant also given a quantification of the claimed loss occurred to him, which is as follows:

a) Rs.7.97 Crores invested in poultry farming for one year.

b) Rs.2.71 Crores estimated profit to be derived from the sale of eggs for one year. (after deducting the expenses).

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c) Rs.23.67 Crores loss suffered due to wrongful acts of the applicant bank from 2012 to 2019 (refer to project report details annex 6)

d) Rs.5.00 lakhs suffered towards loss of time, reputation and litigation expenditure. The total loss sustained by the 1st defendant is Rs.23.677 Crores.

9. Hence, counter claim is filed seeking the following reliefs: a) Directing the applicant bank to pay a sum of Rs.23.677 Crore by way of damages towards the loss suffered by the 1st defendant on account of the wrongful acts of the applicant bank; b) Directing the applicant bank to perform his part of the contract by releasing the entire sanctioned amount to the 1st defendant to carry on his poultry farming, whereby he can make good his losses and repay the applicant bank; and c) Direct the applicant bank to pay the cost throughout in the ends of justice. d) Grant any other relief which this Hon’ble Tribunal deems fit in the facts and circumstances of the case and in the interest of justice and equity.

10. The applicant bank has filed their written statement to the counter claim contending as follows:

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11. The counter claim as put forth by the defendant is not maintainable as there is no cause of the action for the application. An objections is also raised to the Act that, the defendant had already filed their written statement, which itself will preclude the defendant from placing raising a counter claim subsequently which according to the applicant can only be the result of an afterthought. It is reiterated that the OA claim is made in accordance with the case as put forth in the OA and supported by documentary evidence.

12. The contention of the defendant that the sanction amount was not released on time and the defendant could not carry out the various activities related to agricultural/poultry business is denied by the applicant bank. It is also pointed out that, now borrower has no right to challenge the terms of the sanction and it is the discretion of the bank to sanction and disburse the amount as per the terms. The so called right of the bank to recover the amount due is also reiterated in the written statement. In respect of the contention as to the adjustment of the portion of the amount to the existing dues, it is stated that the same is permissible and there is no illegality in such adjustment as the bank is legally entitled for the same.

13. It is also pointed out the writ petition filed before the Hon’ble High Court of Karnataka stands disposed of with an

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observation that the defendants are permitted to urge all these contention before the DRT, which according the applicant bank did not create a cause of action for maintaining a counter claim of this nature. It is also reiterated that the applicant bank had extended all the possible assistance and support to the defendant and only because of the failure of the defendant to honor the commitments, the scenario where by the bank was force to file the TA arise.

14. Since the defendant have raised a counter claim, this Tribunal is of the view that, the Original Application and the Counter Claim has to be dealt with separately. TA/166/2017:

15. The applicant has filed this Transfer Application seeking recovery of the amount claimed therein, which the applicant contends as due in the credit facilities availed by the defendants. The applicant had let in evidence as AW-1, who had deposed in terms of the TA claim and got marked Exhibit A3 to A104.

16. The applicant had produced the loan application, sanction letter and security documents executed by the defendants in pertaining to the original sanction of Rs.57.00 Lakhs and sanction of Rs.806.00 lakhs towards Term loan; Rs.300.00 lakhs towards cash credit facility and Rs.225.00 lakhs towards the Working Capital 10 TA/166/2017

Credit Limit. Even though the defendant had filed the written statement separately, there is no serious dispute as to the availment of the credit facilities or sanctioning of the amount is made.

17. The defendants had filed a consolidated proof affidavit reiterating the contention as made in the written statement as well as the counter claim and produced Exhibit D3 to D88.

18. The following issues arise for consideration in the TA, in the light of pleadings and also the rebuttal as made by the defendant in the written statement: i) Whether the applicant had succeeded in proving the OA claim as against the defendants? ii) What order are to be passed?

Both these issues are gone into and decided together.

19. Even though, the applicant had produced the loan documents duly executed by the defendants, the main contention of the defendant in respect of the same is that, the signatures were obtained in blank paper and the bank had subsequently filled the blank papers to suit their case. In respect of the above, it is to be noted that, the plea or the said nature cannot be allowed to be accepted as law in this regard is decided by, the judgment of the Hon’ble High Court of Andhra Pradesh in the case of Corporation 11 TA/166/2017

Bank V/s Sushil Enterprises (2004) 1 ISJ Banking 160 is relevant, wherein it is held that: “Nobody is expected to sign the documents without reading or when it is blank and if he does so he does at his own risk and the very fact that the plaintiff bank has disbursed the loan amount and Defendant had availed it also shows that the documents were valid and duly executed”

20. The next contention of the defendant that the amounts sanctioned is not disbursed to the account were adjusted to the loan accounts of the applicant is also not sufficient to dis-allow the claim of the applicant bank, as it is permissible that the amount disbursed in subsequent loans can be adjusted to the pending dues of the borrower if any with the same bank. Since the defendants are not having any case that, any amount is scuttled outside, this Tribunal is of the view that, this defense set up by the defendants is liable to be rejected. It is pertinent to note that the defendant admitting that the portion of the amount sanctioned is adjusted to his own loan, which by no way dis-entitle the applicant’s to recover the amount.

22. The next contention taken by the defendant is that the claim of the applicant bank is barred by limitation. In this regard, it is to be noted that the defendant had executed the Registered Mortgage Deeds on 29.03.2010. The applicant had let in evidence and got marked this Registered Mortgage Deeds as Ex.A95 to A101.

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The facilities are secured by mortgage. As per Article 62 limitation, the limitation period for recovering the amount secured by the mortgage is 12 years and no by stretch of imagination the claim of the applicant can be construed as beyond limitation. The credit facilities availed by the defendants are supported by documentary evidences by which the applicant adduced as Ex.A3 to A94. There is no serious dispute as to the execution of loan documents other than taking a frivolous contention that, the defendant was made to sign in the blank papers, which was dealt hereinabove. In view of the undisputed loan documents evidencing, execution of the loan documents by the defendants supported by the proof affidavit of the applicant which reiterated the contention of the TA, this Tribunal is of the view that the applicant has succeeded in proving the TA claim. Hence, the applicant bank is entitled to get the TA allowed in their favour.

23. Taking into consideration that the matter is pending for 15 years and also that the applicant bank has arrived, calculated interest at the aggrieved rate and arrived at the TA claim by calculating interest at the rate prevailing at that period, this Tribunal is of the view that, the pendelite and future interest can be awarded at a reduced rate of 12.00% (simple)

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24. In the result the TA.No.166/2017 stands allowed,

i) The applicant is allowed to recovery an aggregate sum of Rs.14,05,45,500/- (Rupees Fourteen Crore Five Lakhs Forty Five Thousand and Five Hundred only) with further interest of 12.00% p.a.(simple) from the date of filing TA till the realization from defendants, after giving credit to all the amount recovered and received during the pendency of the TA and allowed the same to be recovered by proceeding against schedule property. The schedule property to the OA be the schedule property to the Recovery Certificate.

ii) If the sale proceeds are not found sufficient to cover the amount due and payable to the applicant bank, the defendants jointly, severally, defendant Nos. 1 and 2 personally and other their assets are liable for all such amounts due under the loan account.

iii) The applicant bank is allowed cost of the proceeding which applicant to file cost memo within 7 days from the date of receipt of the order.

iv) The Recovery Certificate to be drawn in terms of this order and transferred to Recovery for execution.

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25. Communicate a copy of the order to the parties concerned in terms of Section 19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993. Counter Claim:

26. The counter claim is filed on 29.04.2019, praying for reliefs directing the applicant to pay a sum of Rs.23.677 Crores by way of damages and also applicant bank to perform his part of contract by releasing the entire sanction amount to 1st defendant. As against the counter claim the applicant had filed separate written statement (re-joinder) against the counter claim denying the contentions of the counter claimant and reiterating the statement of facts as stated in the TA.

27. The defendant had let in his evidence in counter claim through a Power of Attorney and produced the following documents: Annexures Particulars D1 Affidavit of Evidence D2 List of Documents D3 Copy of the letter dated 27.09.2012 to the Assistant General Manager, Bank of India, from the 1st Defendant. D4 Copy of the statement of accounts of the 1st Defendant (2 Nos.) bearing Nos. 812776200000036 and 840032110000004 issued by the Applicant Bank on 09/01/2013 D5 Copy of the letter addressed to the Assistant General Manager, Bank of India, dated 09.05.2014 from the 2nd Defendant requesting sanction of additional 15 TA/166/2017

credit facility to establish 100TPD CNG Production Unit. D6 Invoice No. 548 dated 07.02.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D7 Delivery challan No. 548 dated 07.02.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm. D8 Weighment Slip dated 07.02.2012 issued by Maltose Agri Products Private Limited for having taken delivery. D9 Invoice No. 577 dated 20.02.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D10 Delivery challan No. 577 dated 20.02.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm. D11 Weighment Slip dated 20.02.2012 issued by Maltose Agri Products Private Limited for having taken delivery. D12 Invoice No. 622 dated 12.03.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D13 Delivery challan No. 622 dated 12.03.2012 issued by Siddhi Vet Chem. to Kalpana Poultry Farm. D14 Tax Invoice No. 76 dated 17.05.2011 issued by C. Nagaraj Agro Centre to the 1st Defendant D15 Tax Invoice No. 78 dated 21.05.2011 issued by C. Nagaraj Agro Centre to the 1st Defendant. D16 Tax Invoice No. 78 dated 17.05.2011 issued by C. Nagaraj Agro Centre to the 1st Defendant. D17 Copy of the invoice No. 1454 dated 23.02.2013 issued by Siddhi Vet Chem. to Kalpana Poultry Farm. D18 Receipt No.8876, dated 07.03.2013 issued by Manjunath Weigheres. D19 Receipt No.8873, dated 07.03.2013 issued by Manjunath Weigheres. D20 Receipt No.8861, dated 07.03.2013 issued by Manjunath Weigheres. D21 Invoice No. 1482 dated 07.03.2013 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D22 Invoice No.010, dated 09.03.2013 issued by Manjunath Weigheres along with the carbon copy of the same.

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D23 Invoice No.010, dated 09.03.2013 issued by Manjunath Weigheres. D24 Invoice No. 1491 dated 12.03.2013 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D25 Delivery Note No.18, dated 12.03.2013 issued by Tripura Poultries in favour of Kalpana Poultry Farm. D26 Receipt No.9061, dated 01.03.2013 issued by Manjunath Weigheres. D27 Receipt No.9065, dated 01.03.2013 issued by Manjunath Weigheres. D28 Delivery Note No.20, dated 25.03.2013 issued by Tripura Poultries in favour of Kalpana Poultry Farm. D29 Receipt No.8974, dated 09.03.2013 issued by Manjunath Weigheres. D30 Receipt No.8979, dated 09.03.2013 issued by Manjunath Weigheres. D31 Receipt No.9674, dated 25.03.2013 issued by Manjunath Weigheres. D32 Receipt No.9669, dated 25.03.2013 issued by Manjunath Weigheres. D33 Invoice No.048 dated 25.03.2013 issued by Siddhi Vet Chem. to Kalpana Poultry Farm along with the carbon copy of the same. D34 Invoice No. 6990 dated 01.05.2012 issued by Bangalore Steel Trading to Kalpana N along with the carbon copy of the same. D35 Invoice No. 7006 dated 03.05.2012 issued by Bangalore Steel Trading to Kalpana N along with the carbon copy of the same. D36 Invoice No. 031 dated 19.03.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D37 Delivery Note No.031, dated 19.03.2013. D38 Tax invoice No. 1433 dated 18.02.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D39 Tax invoice No. 1248 dated 07.12.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D40 Tax invoice No. 1177 dated 12.11.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same.

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D41 Tax invoice No. 1139 dated 26.10.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D42 Tax invoice No. 1073 dated 07.10.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D43 Tax invoice No. 1024 dated 15.09.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D44 Delivery Challan No. 1024 dated 15.09.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D45 Tax invoice No. 670 dated 05.04.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D46 Delivery Challan No. 670 dated 05.04.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D47 Tax invoice No. 723 dated 07.05.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D48 Delivery Challan No. 723 dated 07.05.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D49 Tax invoice dated 767 No. 29.05.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D50 Delivery Challan No. 767 dated 29.05.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D51 Tax invoice 871 No. dated 24.07.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy D52 Delivery Challan No. 871 dated 24.07.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D53 Delivery Challan No. 887 dated 01.08.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D54 Delivery Note No. 3815 dated 14.05.2012 issued by Sri Maruthi Hatcheries for delivery of chicks. D55 Delivery Challan proforma invoice No. PBMUD/21 dated 23.06.2010 Venkateshwara issued by Hatcheries Private Limited. D56 Tax Invoice cum Delivery Challan No. 197 dated 04.05.2012 issued by Charoen Pokphand (India) Pvt. Ltd. To Kalpana Poultry Farm. D57 Tax Invoice cum Delivery Challan No. 194 dated 30.03.2012 issued by Charoen Pokphand (India) Pvt. Ltd. To Kalpana Poultry Farm.

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D58 Tax invoice No. 932 dated 18.08.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D59 Delivery Challan No. 932 dated 18.08.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D60 Tax invoice dated 887 No. 01.08.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D61 Tax Invoice 813 No. dated 22.06.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D62 Delivery Challan No. 813 dated 22.06.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D63 Tax invoice No. 854 dated 14.07.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D64 Delivery Challan No. 854 dated 14.06.2012 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D65 Receipt dated 07.09.2013 issued by Weighbridge at Tumkur Road, Doddaballapur. D66 Credit Bill No. 15 dated 06.09.2013 issued by Sri. Kanavisiddeshwara Traders in favour of Anand Poultry Farm along with the carbon copy of the same. D67 Permit No. 24061 dated 06.09.2013 issued by Agricultural Produce Market Committee, Hirekeruru issued to Anand Poultry Farm. D68 Freight letter No. 53 dated 06.09.2013 issued by Kanavisiddeshwara Traders in favour of Anand Poultry Farm. D69 Receipt No. 8339 dated 06.09.2013 issued by Sri Venkateshwar Weigh Bridge. D70 Receipt No. 8472 dated 06.09.2013 issued by Sri Venkateshwar Weigh Bridge. D71 Receipt No. 1058 dated 26.06.2013 issued by Maltose Agri. Products Private Limited. D72 Lorry Freight Receipt 25.06.2013 issued dated by Sri Chandrodaya Enterprises to Kalpana Poultry Farm. D73 Tax Invoice No. 746 dated 18.12.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D74 Delivery Challan No. 746 dated 18.12.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm.` D75 Receipt No. 3968 dated 18.12.2013 issued by SS Weighers.

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D76 Receipt No. 3983 dated 18.12.2013 issued by SS Weighers. D77 Tax Invoice No. 698 dated 30.11.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D78 Delivery Challan No. 698 dated 30.11.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D79 Tax Invoice No. 392 dated 14.08.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D80 Tax invoice dated 299 No. 29.06.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D81 Delivery Challan No. 299 dated 29.06.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D82 Tax invoice No. 184 dated 09.05.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D83 Delivery Challan No. 184 dated 09.05.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D84 Tax invoice No. 78 dated 04.04.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm along with the carbon copy of the same. D85 Delivery Challan No. 78 dated 04.04.2013 issued by Siddhi Vet Chem to Kalpana Poultry Farm. D86 Copy of the statement of accounts of 1 Defendant issued by Bank of India showing the transactions between 2012 to 2015. D87 Copy of the complaint by 1 Defendant on the file of the Banking Ombudsman dated 15.10.2014. D88 Copy of the report with regard to poultry business of 1st Defendant issued by Chartered Account.

28. Now, the following issues arise for consideration in the counter claim:

i) Whether the Counter Claim which is filed separately, after filing the written statement can be accepted?

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ii) Whether the Counter Claim is barred by limitation?

iii) Whether the defendant is entitled to get the counter claim on the basis of the available evidence. All these issues are gone into and decided together.

29. In respect to i) Whether the Counter Claim which is filed separately, after filing the written statement can be accepted? It is to be noted that, The Hon'ble Supreme Court in ”Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others" 2020(2) SCC 394 considered this issue and held: " 28. From the foregoing discussion, it is clear that a counter - claim can be filed if two conditions are met: first, its cause of action complies with Order VIII R.6A(1); and second, it is filed within the period specified under the Limitation Act. Clearly, by itself, R.6A does not specifically require that a counter - claim has to be filed along with the written statement. In the absence of a particular mandate under this Rule, it is necessary to look to other provisions of the CPC to determine whether a counter

- claim can be filed after a written statement. 29. It would be appropriate to begin with a reference to Order VIII R.9, which states thus: "9. Subsequent pleadings.-- No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter - claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same." (emphasis supplied) According to this Rule, after the filing of the written statement, it is open to plead a defence to a set - off or counter - claim without the leave of the Court. However, any other

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pleading sought to be filed after the written statement requires the leave of the Court. The Rule also vests the Court with a discretion to allow filing of a written statement or additional written statement within a period not exceeding thirty days. A plain reading of Order VIII R.9 makes it clear that the Court has the discretion to allow any subsequent pleading upon such terms as it thinks fit. It is important to appreciate here that such subsequent pleading or additional written statement may include a counter - claim. This is because R.9 does not create a bar on the nature of claims that can be raised as subsequent pleadings. As long as the Court considers that it would be proper to allow a counter - claim by way of a subsequent pleading, it is possible to file a counter - claim after filing the written statement. In addition to this, it is also possible to introduce a belated counter - claim by way of an amendment to the original written statement under Order VI R.17, CPC. However, as is the case with Order VIII R.9, the filing of such a counter - claim through an amended written statement is subject to the leave of the Court, and not accorded to the defendant as a matter of right. In this regard, it would be relevant to note the observations of this Court in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 KHC 1536 : 2003

(7) SCC 350 : AIR 2003 SC 2508 : JT 2003 (4) SC 450: "28. Looking to the scheme of O.8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter

- claim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter - claim which in the light of R.1 read with R.6 - A would be a counter - claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.6 - A. Secondly, a counter - claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter - claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter - claim though referable to R.6 - A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, 22 TA/166/2017

either under O.6 R.17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.8 R.9 CPC if sought to be placed on record by way of subsequent pleading." (emphasis supplied) I fully agree with this proposition, and affirm on the basis of the foregoing discussion that the Court has the discretion to allow a counter - claim to be filed after the written statement in exercise of its power under Order VIII R.9 and Order VI R.17 of the CPC."

Hence there is no absolute bar in filing counter claim after filing the written statement.

29. The counter claim is raised by the defendant contending that, they reiterating the contention as taken in the written statement in TA. The counter claimant is admitting the availment of the credit facilities.

30. The contention taken by the counter claimant in the counter claim is that as the status of the loan account of the counter claimant with the bank was mentioned as “Suit Filed”, the counter claimant was prevented from taking further facility from other banks. Even though, the said contention is taken no effort was made to point out any illegibility in the conduct of the applicant bank in mentioning his account was ‘Suit filed”. Even otherwise, this Tribunal cannot find any fault with the conduct of the bank as admittedly, as during that period the account was in default.

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31. The further contention of the counter claimant that the bank sanctioned the various credit facilities and adjusted a portion of the same to the outstanding due in the earlier loan accounts is also untenable in view of the fact that the applicant had already proved the execution of the loan documents by the counter claimant. Even otherwise, in the counter claimants failed to put forward or point out any illegality if any in the conduct of the bank in adjusting the said amounts.

32. The next contention of the counter claimant is that had applicant bank provided financial assistance at the right time, the 1st defendant would not only have made profits would have repaid the loan amount to the applicant bank on time. This contention is also not supported by any evidence or substantial pleadings which leads to the above conclusion. The defendant claimed to have suffered a business loss altogether amounting to Rs.23.677 Crores and it is surprising that even in the counter claimant failed to put forward any pleading in support of his claim as how this Rs.23.677 Crores has been arrived at. The counter claimant had failed to point out that how the defendant can legally maintain any claim against bank. Apart from making some wild allegation as to the adjustment of sanctioned amount to the existing loans and ill-advice given by some bank official; the counter claimant had miserably failed to 24 TA/166/2017

point out any cause of action on which the counter claim can be maintained. Hence, the counter claim which is raised without any cause of action and only on the basis of bald allegation that, the failure of the applicant bank to provide financial assistance at right time and also that the counter claimant was made to dance to their tune by and not providing any financial help to them is not sufficient to establish any claim against the bank.

33. The applicant try to maintain this counter claim by payment of court fee of Rs.1.5 lakh based on a cause of action which according to the counter claimant, arose when the Hon’ble High Court of Karnataka disposed of the writ petition permitting the counter claimant to raise all contention available to him by this Tribunal. In this regard, it is pertinent to note that the Hon’ble High Court has not specifically permitted the counter claimant to raise the counter claim after the disposal of the writ petition and had only permitted to bring all the contention before this Tribunal. It is to be noted that the credit facilities were availed by execution of loan documents from a period 2005 to 2013. The base of the counter claim is made by the applicant is silent as to when the so claimed cause of action for the counter claim has arisen. In the absence of any specific cause of action as mentioned the same has to be construed on the date of sanction of last facility i.e. on 30.12.2013.

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Taking into consideration of the fact that, even though the claim of the applicant bank is protected under Article 62, the limitation for raising a counter claim on the basis of the loan documents Article 62 does not apply and period of limitation is Article 27 applies and the period of limitation is only 3 years. Hence, this counter claim is liable to be rejected on the ground of limitation.

34. Even though, the counter claim is proposed to be raised by remitting the fee of Rs.1.50,000/- no specific plea as to how the counter claim is entitled to claim the amount is not mentioned. The counter claim is devoid of proper pleadings and the documents. None of the documents produced by the counter claimant coupled as the pleadings along with the evidence is not sufficient to establish any clause against the applicant. The documents produced by the counter claimant pertaining to the business of the counter claimant and had nothing to do with the pleadings as taken in the counter claim. Even though, the documents pertaining to the loan accounts; the statement of the accounts and letters issued by the borrower which is produced at D4 cannot be taken as evidence for two reasons: 1) the defendant had not made any endeavor to get the documents marked; 2) even if, the said documents are marked the same can only be a self-procured document for making out a defense. Even otherwise, the said document even if admitted in 26 TA/166/2017

totality will not give rise to cause of action or a claim. The counter claimant miserably failed to put forward any pleading or any evidence in support of counter claim and as the counter claim is mis- conceived and is liable to be dismissed.

35. Accordingly, the counter claim is dismissed. No Order as to costs. [Dictated to the Stenographer (PR), transcribed by her, corrected and signed and pronounced by me in the Open Court, this the 18th Day of July 2025].

Sd/- (T. RAJESH) PRESIDING OFFICER

ANNEXURES WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri. Jagdish Patnaik, Chief Manager of the applicant bank. Exhibits on the part of the Applicant: Annexure Particulars A1 Affidavit Evidence A2 List of documents A3 Sanction letter A4

A5 Authorisation letter/Bearer letter A6 Instalment letter A7 Agreement for term and Hypothecation (L-576) A8 Declaration letter (L-575) A9 Agreement to secure loan for Rs.57 lakhs (L516) A10 Guarantee deed by defendant No.2 A11 Guarantee deed dated 29.03.2010 executed by defendant No.2 & 3 represented by its Managing Director Mr. T Anand 27 TA/166/2017

A12 Declaration by borrower A13 Renewal document dated 27.12.2007 A14 Renewal document dated 26.03.2010 A15 Renewal document dated 26.04.2010 A16 Renewal document dated 18.02.2010 A17 Renewal document dated 31.12.2013 A18 Ag-51 Supplemental TL Agreement A19 Sanction letter A20

A21 Authorisation letter/Bearer letter A22 Agreement for term loan and hypothecation for Rs.90 lacs A23 Declaration letter (L-515) A24 Guarantee deed dated 27.01.2006 executed by defendant No.2 A25 Guarantee Deed dated 29.03.2010 executed by defendant No.2 and 3 represented by its managing director, Mr. T Anand A26 Ag-51, Supplemental TL agreement A27 Renewal documents dated 27.12.2007 A28 Renewal documents dated 26.03.2010 A29 Renewal documents dated 26.04.2010 A30 Renewal documents dated 18.02.2013 A31 Renewal documents dated 31.12.2013 A32 Sanction letter A33

A34 Authorisation letter/Bearer letter A35 Agreement by borrower to secure loan for Rs.290 lacs A36 Hypothecation cum loan agreement (CHA-1) A37 Declaration letter (L-575) A38 Agreement for term loan 7 hypothecation for Rs.290 lacs (Ag-3 livestock)

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A39 Guarantee deed for Rs.290 lacs by defendant No.2 and 3 A40 Irrevocable letter of undertaking cum agreement A41 Renewal documents dated 18.02.2013 A42 Renewal documents dated 31.12.2013 A43 Ag-51. Supplemental TL agreement A44 Sanction letter A45

A46 Authorisation letter/ Bearer letter A47 Declaration letter (L-515) A48 Agreement to secure loan for Rs.91 lacs A49 Hypothecation cum loan agreement A50 Guarantee deed for Rs.91 lacs by defendant No.2 and 3 A51 Renewal documents dated 10.01.2013 A52 Sanction letter A53 DP note for Rs.269 lacs A54 Authorisation letter/bearer letter A55 Agreement by borrower to secure loan for Rs.269 lacs (L-516) A56 Hypothecation cum loan agreement (IFD-X) A57

A58 Guarantee deed for Rs.269 lacs by defendant No.2 and 3 A59 Renewal documents dated 31.12.2013 A60 Ag-51, supplemental TL agreement A61 Sanction letter A62 DP note for Rs.100 lacs dated 19.05.2012 A63 Authorisation letter A64 Agreement to secure Rs.100 lacs L-516 A65 Hypothecation cum loan agreement A66 Declaration letter (L515)

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A67 Gurantee Deed for Rs.100 lacs executed by defendant No.1 and 3 represented by its managing director, Mr. T Anand A68 Renewal documents dated 30.12.2013 A69 Ag-51 supplemental TL agreement A70 Sanction letter A71 DP note for Rs.209 lacs A72 Authorisation letter/ Bearer letter A73 Agreement by borrower to secure cash credit for Rs.209 lacs (L-516) A74 Hypothecation cum loan agreement A75

A76 Guarantee deed for Rs.209 lacs executed by defendant No.2 and 3 A77 Renewal documents dated 30.12.2013 A78 Ag-51, supplemental TL agreement A79 Sanction letter A80 DP note for Rs.160 lacs dated 30.12.2013 A81 Authorisation letter/Bearer letter A82 Agreement by borrower to secured loan/cc for Rs.160 lacs (L-516) A83 Declaration letter (L-515) A84 Supplemental hypothecation agreement A85 Guarantee deed for Rs.160 lacs executed by defendant No.2 A86 Sanction letter A87

A88 Authorisation letter/Bearer letter A89 Agreement by borrower to secure cc for 65 lacs (L-

516) A90 Declaration letter (L515) A91 Guarantee deed for Rs.65 lacs by defendant No.2 A92 Oral assent for EQPM dated 19.01.2005 A93 Oral assent for EQPM dated 27.01.2006

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A94 Oral assent for EQPM dated 19.01.2005 A95 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-7167) A96 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-6059/09/10) A97 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-2329/10-11) A98 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-2330/10-11) A99 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-1097/12-13) A100 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-1101/12-13) A101 Registered mortgage deed (CHA-4) dated 29.03.2010 (Doc-2097/10-11) A102 Legal notice copy A103 Postal receipt/acknowledgment A104 Statement of accounts

Sd/- (T. RAJESH) PRESIDING OFFICER