UNION OF INDIA Vs. BANK OF INDIA

JUDGEMENT

(1.) THESE two appeals arise out of a common judgment dated September 13, 1974, rendered but he Sub-Court, Nilgiris, at Ootacamund in O.S. No. 53 of 1971 on its file. A.S. No. 206 of 1976 has been filed by the plaintiff in the suit and A.S. No. 885 of 1975 has been filed by the 7th defendant therein.

(2.) BANK of India as the plaintiff filed the said Suit O.S. No. 53 of 1971 for he recovery of a sum of Rs. 1,98,746.70 with interest thereon at 10 1/4% per annum from defendants Nos, 1 to 3 and, 5 a sum of Rs. 1,71,399.67, out of the said sum 1,98,746.70 with interest at 10 1/4% per annum from the 4th defendant, a sum of Rs. 1,32,395.52 with interest thereon at 10% per annum from the 6th defendant and in default of payment by the 6th defendant direct the sale of the mortgaged properties, more fully set out in the second schedule to the plaint and for the a decree for specific performance directing the 5th defendant to execute and register a mortgage deed in favour of the plaintiff in respect of his properties described in the first schedule to the plaint as per the agreement date December, 16, 1967, or, in the alternatives for a decree for recovery of the said sum of Rs. 1,98,746.70 as damages for breach of the said agreement.

(3.) THE 5th defendant in his written statement contended that as the guarantee letter was given by him to the bank to stifle a criminal prosecution which the bank intended to launch against defendants Nos. 1 to 4 who had clandestinely removed the tea stocks which had been pledged with the bank, the guarantee letter was void and unenforceable, that he never promised to give security of his properties to the bank, nor did he seek forbearance from the bank on behalf of defendants Nos. 1 to 4 that he induced to execute the guarantee letter without disclosing the contents therein, that he signed the guarantee letter which was in printed form, that the never agreed to execute a mortgage deed in respect of his properties, that he did not execute a guarantee letter for Rs. 2,00,000 but he merely signed a printed form without knowing the contents thereof, and that even otherwise the said guarantee letter was void and enforceable as being without any consideration. He also raised the plea that the claim was barred under O. 2, r. 2, CPC, as similar claim had been made against him by the bank as 2nd defendant in the said O.S. No. 181 of 1970.