LAWS(KER)-1982-11-14

ACHUTHAN PILLAI Vs. MARIKAR MOTORS LTD

Decided On November 17, 1982
ACHUTHAN PILLAI Appellant
V/S
MARIKAR (MOTORS) LTD., TRIVANDRUM Respondents

JUDGEMENT

(1.) The 2nd defendant is the appellant. The suit is for recovery of Rs. 25,090.05 said to be due to the plaintiff from the defendants under a hire purchase agreement in respect of a Bedford diesel lorry KLO 6676. Ext. A-1 dated 15/9/1969 is the hire purchase agreement, as per the terms of which the plaintiff advanced a sum of Rs. 57,761.00 for the purchase oF the vehicle to be repaid in monthly instalments as provided for in the document. As per Ext. A-1 agreement, the plaintiff is the owner of the vehicle, the 1st defendant is its hirer and the 2nd defendant is the guarantor for due payment of the instalments by the 1st defendant. After sometime the 1st defendant defaulted payment, whereupon the plaintiff took possession of the vehicle in August, 1970. Ext. A-4 dated 21-8-1970 evidences a subsequent arrangement to which the plaintiff and defendants 1, 3 and 4 are parties. In Ext. A-4 letter addressed by the 1st defendant to the plaintiff, it is stated that the 1st defendant is not in a position to pay the dues, that, a sum of Rs. 19,938.00 is in arrears besides overdue interest and. other charges and that the future life charges to be paid come to Rs. 26,000.00. With a view to see that the arrears are paid without delay and that the account is brought to a close expeditiously, the Vehicle is entrusted to the 3rd defendant who is recurred to remit a sum of Rs. 3,500/ immediately besides a further sum of Rs. 1,750/- as. The first remittance under the new arrangement. It is also stated that the 3rd defendant will be making regular payments of all instalments from September, 1970 onwards until the entire balance due under the agreement is fully discharged. It is specifically stated in Ext. A-4 that the arrangement thereunder is without prejudice to the rights of the plaintiff to enforce Ext. A-l agreement and the 1st defendant continues to be liable to the plaintiff thereunder. This letter Ext. A-4 contains an endorsement by the 3rd defendant undertaking liability for payment of all dues to the plaintiff as stated in Ext A-4 until the entire amount due under the hire purchase account is fully paid of. The 4th defendant' has signed Ext. A-4 as an additional guarantor. Subsequent to Est. A-4 there is an undertaking on a stamp- paper of the value of Rs. 3/- signed by the 2nd defendant ratifying the arrangement under Exhibit A-4 and further stating : "I farther confirm that my guarantee under the said account will continue so long as the entire balance due is paid to you in full together with interest and other charges". This document is marked as Ext. A-6 in the case. The 2nd defendant is sought to be made liable for the entire balance amount due under Ext A-1, on the basis of his undertaking contained in Ext. A-6.

(2.) The suit was contested by defendants 1 and 2. According to the 1st defendant his liability under Ext. A-1 came to an end when the vehicle was taken possession by the plaintiff in August 1970 and he happened to sign Ext. A-4 on the suggestion of the plaintiff that he will be exonerated from all liability under Ext. A-1. The 2nd defendant denied execution of Ext. A-6 and contended that it is a document created on a blank stamp paper got signed by him at the time of execution of Ext. A-1. According to the 2nd defendant his liability came to an end when the vehicle was seized by the plaintiff in August 1976, and was entrusted to the 3rd defendant under a different arrangement contained in Ext. A-4.

(3.) The Court below found that Ext. A-6 is an undertaking duly executed by the 2nd defendant as per the terms of which his liability under Ext. A-1 continued even after the vehicle was entrusted to the 3rd defendant. The 1st defendant was found liable for the suit-claim as per his undertaking in Ext. A-4. On these findings the suit was decreed as prayed for against all the defendants. It is against this that the 2nd defendant has conic up in appeal.