The petitioner is aggrieved by the award at Exhibit P5, as modified by Exhibit P8.
2. The petitioner was a borrower from the 2nd respondent, which Bank is financed by the 1st respondent. The petitioner admittedly satisfied the amounts in a loan account; but raised a claim with respect to certain credits not being evident from the accounts. The claim essentially was for refund of those amounts which allegedly was paid in excess of the actual dues. The petitioner's case was considered under Section 69, by the Arbitrator, and an award was passed at Exhibit P5, which stood slightly modified by the Tribunal with Exhibit P8 common judgment, in an appeal filed by the borrower and the revision petition filed by the respondents 1 and 2 herein.
3. Various transactions were pointed out, claiming refund from the respondent-Bank. It is trite that this Court cannot look into the computation made by the Bank; and two fact finding authorities having considered the computation of the amounts and both having rejected certain claims of refund to the petitioner, this Court would not enter into a roving enquiry as to whether the computation is correct or not, as that would not be possible in a petition under Article 226 of the Constitution.
4. The essential contention raised before this Court is with respect to credit of Rs.30,000/- [Rupees thirty thousand] having not been granted and the capitalization of interest as per the accounts. The credit with respect to Rs.30,000/- is said to have been not adjusted to the loan account. However, the Branch Manager, who was DW-1, had filed documents to show that the amount was debited from the account of the petitioner and credited to the Head Office as Guarantee Fee for IDBI loan. Obviously IDBI was the financing institution of the respondents and the loans granted by the 1st respondent is guaranteed by the said institution. The Guarantee Fee, hence, would be the liability of the borrower. On the strength of the documents showing that the credit had gone for the Guarantee Fee, the Arbitrator as well as the Tribunal negatived such claim. This Court does not find any infirmity in the same.
5. The next ground is with respect to capitalization of interest. The petitioner has claimed that the interest was levied on interest and the same is not permissible under law. However, that would depend upon the terms of the agreement, which, obviously, has not been placed either before the Arbitrator or before the Tribunal. The learned counsel appearing for the petitioner would contend that the borrowers are not issued with copies of the agreement. It was the duty of the respondent-Bank to have produced such agreement before the Arbitrator or the Tribunal. It is to be noticed that the petitioner has claimed refund and when assertions are made by a person with respect to certain facts in a case, it is definitely the burden of that person to prove a fact on which such assertion is made.
6. If at all the agreement was not available with the petitioner, the petitioner ought to have sought for a direction to the respondent to produce the agreement before the Arbitration Court. The Bank, however, contended that the interest has been levied in the account only in terms of the agreement. The Arbitrator as also the Tribunal did not find any infirmity in such assertion and accepted the same. The assertion of the petitioner that interest was capitalized was not substantiated. This Court also does not find any illegality in this regard, especially since the fundamental aspects with respect to the claim has not been proved by the petitioner before the lower authorities.
In the result, the writ petition would stand dismissed, leaving the parties to suffer their respective costs.
vku.
Sd/-
K.Vinod Chandran, Judge ( true copy )