STATE OF TAMILNADU REP Vs. CAPITAL REFRIGERATION

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned First Additional Judge, City Civil Court, Chennai in O.S.No.2336 of 1981.

(2.) The plaintiff in the suit is the appellant herein. The plaintiff instituted the suit for recovery of a sum of Rs.88,376.94. The claim of the plaintiff was that all the defendants would be jointly and severally liable for a sum of Rs.34,200/- along with interest thereon from the date of plaint till realisation and the first defendant would be liable to pay a sum of Rs.54,176.94 along with interest from the date of plaint and also for costs. The first defendant is the principal debtor and he had entered into a contract with the plaintiff and the second defendant executed a deed of guarantee and the deed of guarantee was continued by a further deed of guarantee dated 10.3.1967, marked as Ex.B-1. The plaintiff has not produced the original deed of guarantee, nor the second defendant has produced the guarantee deed executed earlier, but produced the continuous guarantee deed dated 10.3.1967, Ex.B-1, which was executed in continuation of the original guarantee deed.

(3.) The case of the plaintiff is that and there was a breach of contract committed by the first defendant and the second defendant has executed the guarantee for the due performance of the contract by the first defendant and the guarantee was limited for a sum of Rs.34,200/-. The suit was resisted by the defendants. Learned trial Judge decreed the suit as against the first defendant for the entire amount claimed by the plaintiff along with interest. It is stated that the judgment and decree as against the first defendant has become final. Learned trial Judge, however, dismissed the suit as against the defendants 2 and 3 on the ground that the suit is barred by limitation as against the defendants 2 and 3. Learned trial Judge was of the view that the clauses found in the guarantee deed (Ex.B-1) would show that the right as well as the remedy under the guarantee was barred as the suit was instituted on 3.7.1969 on the file of this Court after the period mentioned in the deed and hence, he held that the suit as against the defendants 2 and 3 was barred by limitation. Learned trial Judge relied upon the judgment of the Supreme Court in State of Maharashtra v. Dr.M.N.Gaul ( 38 C.C.1) as well as the decision of the Kerala High Court in Kerala Electrical and Allied Engineering Co. v. Canara Bank (AIR 1980 Kerala 151) to hold that the suit instituted after the expiry of the period prescribed in the deed of guarantee (Ex.B-1) is barred by limitation and accordingly, dismissed the suit as against the defendants 2 and 3.