TUSHAR THAKKAR Vs. K RAMDEV

JUDGEMENT

(1.) This Second Appeal is filed against judgment and decree dated 02.07.2016 made in A.S.No.73 of 2014 on the file of the III Additional District and Sessions Court, Coimbatore confirming the judgment and decree dated 02.12.2013 made in O.S.No.570 of 2011 on the file of the II Additional Sub Court, Coimbatore.

(2.) The defendant who is unsuccessful in both the courts below has come out with the present Second Appeal. The respondent/plaintiff filed O.S.No.570 of 2011 against the appellant for recovery of money. According to the respondent, the appellant borrowed money from Nedunkaadi Bank which was subsequently merged with Punjab National Bank. The respondent stood as guarantor for the amounts borrowed by the appellant. The appellant and respondent created equitable mortgage over their property as collateral security. They did not pay the amounts due to the Bank. The Bank initiated proceedings for recovery of money. The respondent, in order to save his reputation and property, negotiated with Bank and paid a sum of Rs. 7,27,024/- as full and final settlement. As per Section 145 of Indian Contract Act, the respondent is entitled to recover money from the appellant and hence filed the suit.

(3.) The appellant filed written statement denying all the averments made in the plaint and contended that the appellant availed cheque discount facility from the Bank and the Bank failed to present two cheques of the appellant's supplier in time and could not recover the amounts. The Bank committed an error in not presenting the cheques of appellant's supplier. The Bank debited the said amount from the appellant's account. Due to the error committed by the Bank, the appellant sustained loss and could not continue his business. The respondent, without the knowledge and consent of the appellant, in collusion with the Bank, settled the amount. The respondent did not issue any notice to the appellant prior to the settlement to the Bank. The immovable property given as collateral security to the Bank was purchased in the name of the respondent and appellant. The entire consideration for purchase of the property was made by the appellant. Only to take away the said property for his enjoyment and detrimental to the interest of appellant, the respondent has hurriedly settled the dues to the Bank. The respondent has no right to settle the full claim of the Bank and prayed for dismissal of the suit.