H HIRIANNA SHETTY Vs. VIJAYA BANK LTD

JUDGEMENT

(1.) this appeal by the 7th defendant is preferred against the judgment and decree dated 30th september, 1978, passed by the civil judge, mangalore, in O.S. No. 30/1971. Respondent No. 1 is the plaintiff. Respondents 2 to 12 are defendants 1 to 6 and 8 to 12 respectively. During the pendency of the suit, defendants No. 12 expired. Therefore, his legal representatives were brought on record as defendants 13 to 18. They are respondents 13 to 18 in the appeal. In this judgment, the present appellant would be referred to as the 7th defendant.

(2.) during the pendency of the appeal, the appellant (the 7th defendant) died. His legal representatives are brought on record. In this judgment, the appellants being the legal heirs of the deceased 7th defendant, they would be referred as 7th defendant, respondent No. 1 as the plaintiff and respondents 2 to 11 and 13 to 18 as defendants 1 to 6 and 8 to 11 and 13 to 18 respectively. 2.1 the trial court has passed a decree in the following terms:

(3.) plaintiff brought the aforesaid suit for recovery of a sum of Rs. 1,25,819-95 ps., With future interest at the rate of 12 1/2 p.a. with costs. The suit was brought on the allegations that defendants 1 to 12 were thepartners of the partnership known as "malnad traders" and defendant No. 1-appanna hegde was the managing partner of the firm. That he obtained excise contract of right to vend liquor in coondapur taluk for the year 1969-70 for and on behalf of the partnership firm known as "malnad traders". That the defendant No. 1 as managing partner of the firm requested the bank to give the guarantee to the state government for due performance of the aforesaid excise contract in lieu of cash deposit of Rs. 3,16,500/- and accordingly, the plaintiff-bank gave the guarantee No. 3 of 1969 to the state government. That the 1st defendant-appanna hegde executed a counter guarantee in favour of the plaintiffs bank for and on behalf of the partnership firm undertaking to indemnify the bank. That the plaintiff-bank pursuant to bank guarantee No. 3 of 1969, paid a sum of Rs. 3,16,500/- to the state government on various dates, namely, on 27-5-1970 by cheque a sum of Rs. 1,05,500-00 and on 12-6-1970 by cheque a sum of Rs. 1,05,500-00 and on 27-6-1970 by cheque a sum of Rs. L,05,500-00. That after adjusting certain amounts deposited with the bank by the defendants, the amount remaining to be paid was a sum of Rs. 1,25,810-95 ps., As on 20th march, 1971. That the defendants are liable to pay the same with hit' rest at 12 1/2% as per contract, trade usage and custom as well. Accordingly, the plaintiff prayed for a decree for the aforesaid sum jointly and severally against the defendants and also against the assets of the partnership firm known as "malnad traders" in the hands of the partners.