TMI Blog2012 (4) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... s. In pursuance of application for loan, the plaintiff sanctioned the loan to the tune of Rs. 10,000/- under the Cash Credit account, on 27-12-1976 in favour of respondent No. 1-Firm. The respondent Nos. 2 to 5 are partners and respondent No. 6 is guarantor. (ii) While obtaining loan, respondent-Firm, its partners and the guarantor, i.e., respondent No. 6 executed a demand promissory note worth Rs. 10,000/- in favour of the plaintiff Bank. Respondent Nos. 1 to 5 also executed an agreement for hypothecation and guarantee on the same day while respondent No. 6, i.e., the guarantor executed the agreement for guarantee, by virtue of which, the defendants are liable to repay the loan jointly and severally. (iii) The loan was not liquidated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dues were acknowledged by the respondent Nos. 1 and 2 vide Ex. P.4 to Ex. P.6 and Ex. P.12. Ex. P.12 is dated 15-7-1986, and therefore, the suit filed on 7-5-1988 was well within limitation. It was further contended, though the documents Ex. P.4 to Ex. P.6 and Ex. P.12 were not executed by respondent No. 6-guarantor but under Section 128 of the Act of 1872, the liability of the guarantor is co-extensive and the acknowledgment executed by the respondents/borrowers will be deemed to be acknowledgment of guarantor and in this way, respondent No. 6 is also jointly and severally liable for payment of debt to the plaintiff-Bank. 3. Per contra, Shri Ajay Singh, learned counsel appearing for respondent No. 5 supports the judgment and decree i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.-- For the purposes of this section,-- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right. (b) the word signed means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten promise to pay B Rs. 500/- on account of the debt, this is a contract. In the instant case, vide Ex. P.2, the respondents agreed to pay Rs. 15,549.12 ps. subject to and on the same terms and conditions as stipulated in the original agreement dated 27-12-1976. Therefore, the contents clearly satisfy the requirement of Section 25(3) of the Act of 1872 and the trial Court has grossly erred in treating the promissory note and D.P. Note Delivery Letter (Ex. P.1 P.2) as acknowledgment under Section 18 of the Act of 1963, while dismissing the suit. 9. Coming to the second question, the respondent No. 6 by executing Ex. P.2 promised to pay the time barred debt on the same terms and conditions as stipulated in the original agreement date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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