' Present appeal calls in question judgment and decree dated 27-3-2001, whereby the learned Judge Banking Court passed a decree for the recovery of Rs,6,66,419 alongwith costs and mark-up against the appellants.
2. Precisely stated, the facts leading to the filing of the present appeal are that appellant No,1, admittedly, on 6-11-1998, obtained a finance facility of Rs,4,95,000, under Prime Minister Self- Development Scheme, and appellant No,2 stood as guarantor. As the appellants did not liquidate the outstanding liability and, reportedly, committed default, therefore, the .Respondent-Bank filed a suit for the recovery of Rs,6,66,419, before the learned Judge Banking Court, against the appellants, alleging therein that the financial facility was availed by appellant No,1, appellant No,2 stood as guarantor, the defendants executed the documents, mentioned in the plaint, and despite various demands, the outstanding amount was not liquidated by the appellants, which necessitated the filing of the suit. The appellants after having been served, filed an application seeking leave to defend the suit thereby mainly pleading that initially the financial facility was repayable up to 5-11- 2005, therefore, the mark-up has illegally been charged. Ultimately, the learned Judge Banking Court, after finding that all the documents have been admitted and no serious and bona fide dispute has been raised, by the appellants and while dismissing the application for leave to defend the suit decreed the suit for the recovery of Rs,6,66,419 alongwith costs and mark-up, against the appellants, vide judgment and decree dated 27-3-2001, hence the present appeal.
3. The learned counsel for the appellants, while admitting the availment of the financial facility of Rs,4,95,000, has submitted that rest of the amount, charged as mark-up, has incorrectly been charged and the appellants although raised substantial questions to be tried by the learned Banking Court, yet they were illegally declined leave to defend the suit and thus the ensuing impugned judgment and decree is not sustainable in law. Conversely, the learned counsel for the respondent-Bank has submitted that as the original financial facility was admitted and the mark- up has been charged only up to the date of the filing of the suit, therefore, the appellants were not entitled for the grant of leave to defend the suit.
4. After hearing the learned counsel for the parties and upon the examination of the record, it is evident that the initial availment of the financial facility amounting to Rs,4,95,000 has been admitted by the appellants even in the memorandum of appeal and in their leave application, as held, thus, so far as the amount of initial financial facility is concerned, the same is undisputed. The only grievance, which has been voiced by the appellants. Through the filing of this appeal, is that mark-up has been charged illegally and exorbitantly, which cannot be recovered from the appellants. We are of the view that the only dispute is regarding the charging of mark-up and not A in respect of the principal amount, therefore, to our mind, the interest of justice would, adequately be secured, if the appellants are granted leave to defend the suit, subject to the deposit of a sum of Rs,4,95,000 in cash and the rest of the dispute may be allowed to be decided by the learned Banking Court.
5. We find from the record of this appeal that the appellants have already deposited a sum of Rs,2,00,000 with the respondent-Bank, thus the remaining principal amount left to be deposited is Rs,' ,95,000.
6. Upon the examination of the impugned judgment, we find that the learned Banking Court has not adverted to this crucial aspect of the case and mechanically passed the impugned judgment and decree without attending to the contention raised by the learned counsel for the appellants with regard to the charging of mark-up. In these circumstances, we are inclined to set aside the impugned judgment and decree and to grant leave to defend the suit to the appellants, subject to the payment of a sum of Rs,4,95,000 in cash after excluding a sum of Rs,2,00,000, as already deposited.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree is set aside with no order as to costs. Consequently the appellants are granted leave to defend the suit, subject to the deposit of the balance principal amount of Rs,2,95,000 (Principal amount of financial facility = Rs,4,95,000 Amount deposited = Rs,2,00,000 = Balance Rs,2,95,000) with the learned Banking Court within a period of three months from today.
The result would be that if the appellants deposit the said amount with the learned Banking Court within the stipulated period, in that case the suit filed by the appellants shall deem to be pending before the learned Banking Court and the same shall be decided in accordance with law within a period of further two months. However, in case the appellants will not deposit the said amount of Rs,2,95,000 within the granted time frame the to the appellants, today, shall deem to be recalled and the appeal shall stand dismissed.