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Biharilal Soni Versus Bank of India and others

2003 (9) TMI 797 - MADHYA PRADESH HIGH COURT

First Appeal No. 605 of 2000 - Dated:- 26-9-2003 - Dipak Misra and Shantanu Kemkar, JJ. For the Appellant: Atulanand Awasthy For the Respondent: Rajesh Maindiratta JUDGMENT Shantanu Kemkar, J. This appeal under section 96 of the Code of Civil Procedure has been directed against the judgment and decree dated 28-2-1998 passed by the learned XII Additional District Judge, Jabalpur, in Civil Suit No. 70A/94. Briefly stated the facts are that the respondent No. 1, Bank of India filed a Civil Suit No. .....

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proprietor of respondent No. 2, M/s Kamla Chemist dealing in business of Drugs and Medicines. Respondents No. 2 and 3 applied to the plaintiff/Bank for grant of cash credit limit to the extent of ₹ 20,000/- for his business and executed necessary loan documents on 18-2-1983. The appellant/guarantor agreed to stand as Surety for the borrowers. Various documents were executed by the borrowers for the security of the aforesaid loan. The appellant executed guarantee-deed in favour of the Bank .....

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facility of ₹ 75000/- which was accordingly increased and additional documents for the additional limit were executed on 23-4-1984. The appellant also executed agreement of guarantee in favour of the Bank on 23-4-1984 for repayment of the amount of ₹ 75000/- annulling good until repayment of the entire outstanding dues inclusive of interest, cost, charges and expenses. The Bank in their plaint further pleaded that the borrowers availed the cash credit facility from time to time, how .....

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tion of the entire amount. The borrowers in spite of receipt of the notice of plaint did not make their appearance before the trial Court and as such they were proceeded ex parte. The appellant/guarantor appeared before the Court and filed written statement contending, inter alia, therein that he had not given the guarantee for the borrowers for the loan and denied the execution of any agreement of guarantee in favour of the Bank. The trial Court framed issues and recorded the evidence led by th .....

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er of declaration and the agreement entered into with the appellant which is deed of guarantee is (Ex. P/6). V.P. Shrivastava (P.W.2) was examined by the Bank. He was officer in the said Branch for the period 1986 to 1991 and also of J.R. Iyer (P.W.3) who was working in the said branch from November 1985 to November 1987. The witnesses have proved that the appellant had executed deed of guarantee (Ex. P/11) and has also mortgaged the property by way of equitable mortgage. From the oral and docum .....

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the appellant. This point was not raised by the appellant in the trial Court. However, we find that this argument has got no force. The appellant had executed documents in the nature of continuing guarantee and has mortgaged the immovable property by way of equitable mortgage and, therefore, as the suit was filed on the basis of such document the same can be instituted within 12 years. Thus, the suit filed by the respondent was within limitation. Facing with the above situation the learned coun .....

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