SYNDICATE BANK Vs. T KESHAVA ANCHAN

JUDGEMENT

(1.) On the last occasion when this matter was heard on 13-2-1989, we had heard Mr. B.R. Aswatharam at length and noticed some of his arguments. His primary contention was negatived by us and he was directed to produce the true copies of the pleadings in the case to know the frame of the suit. That, he has done today. He had addressed arguments in extenso in regard to the proposition that there is sufficient material stated in the pleadings to make it clear that the suit was one for adjustment of mutual account between the Bank and the defendants and what was extended is only the over draft facility and not exactly a loan as normally understood in Banking circles or Banking practice.

(2.) We are unable to agree with that proposition of law having regard to the specific stand in the plaint that the first defendant is the principal borrower and defendants 2 and 3 are co-obligants. This is further evidenced by the fact that Ext. P. 2 has been executed only by the first defendant and not by all the 3 defendants to ether. It is also made clear in the pleadings at the end of plaint para III(2) which clearly states that only the first defendant was operating the account and drawing the funds from t me to time against the over-draft facility sanctioned. Therefore, we do feel that the argument advanced that the suit is covered by Article 1 of the Schedule to the Limitation Act is self-defeating in as much as if the mutual adjustment is between the first defendant and the plaintiff-bank, then defendants 2 and 3 will be out of it and they will have no liability at all. The frame of the suit cannot be understood in that way having regard to the defence taken by the 2nd defendant and the arguments advanced by the plaintiff' before the trial Court pinning liability on the 2nd defendant because of various acts of omission and commission committed by him including the acknowledgement of liability on 20-10-1981 said to have been made on his behalf by defendants 1 and 3.

(3.) In the written statement filed, as we have seen today, defendant No. 2 took a specific stand in paragraph 11 of the written statement that the suit is barred by limitation and denied acknowledgement of any liability on 20-10-1981 as claimed by the plaintiff- bank. On the other hand, he produced cogent documentary evidence before the trial Court that on the said date, he was not at all available at Mangalore to sign the document. It is further in evidence that many documents were signed by him in blank at an earlier point of time when he was called by the first defendant to witness the loan transaction, does find some dim rays of truth. Therefore, the court below proceeded to foist the liability on all the three of them on account of the execution of the pronote on which emphasis was laid in the trial Court by the plaintiff- bank. Second defendant's story it the witness box that he executed the suit pronote in question which was offered as a collateral security for the over- draft loan on blank paper was disbelieved by the court below as the liability was found to be joint and several with the other co-executants on account of that pronote. But having regard to the fact that there was no acknowledgement of the liability : is stated by the 2nd defendant, in the light of what was stated by him that he was not available on that day at Mangalore, suit was held to be barred by time as the suit filed for recovery of money due under a pronote.