S.M. DODIYA Vs. SYNDICATE BANK

JUDGEMENT

(1.) THE appellant - original defendant No.2 guarantor has filed this appeal challenging the judgment and decree passed by the learned Joint Civil Judge, Senior Division, Sangli dated 27-10-1980 passed in Special Civil Suit No.26 of 1978.

(2.) THE respondent - original plaintiff has instituted a Suit against the appellant and the principal debtor respondent No.2 herein,by filing Suit in the court of the Joint Civil Judge, Senior Division, Sangli praying for a decree for an amount of Rs.33,934-57 Ps. with interest at the rate of 18.5% per annum till realisation and costs of the Suit. The respondent No.2 - original defendant No.1 has applied for a loan and approached the plaintiff Bank for an overdraft facility for an amount of Rs.25,000.00 for the purpose of his business. Necessary documents were executed by the defendants wherein the present appellant-defendant No.2 had stood guarantor. The plaintiff Bank has granted request for overdraft facility for an amount of Rs.25,000.00 and the defendant No.1 had availed of the said facility on 6-11-1975. Both the defendants have executed promissory note in favour of the plaintiff Bank and when the defendant No.1 has failed to repay the said amount, the Bank, after giving notices to the defendant, has filed the suit for recovery of the said advance. The said suit was registered being Special Civil Suit No.26 of 1978. In the said proceedings the original borrower viz. defendant No.1 has admitted the suit claim of the Bank by filing written statement at Exhibit 24 and prayed for instalment as he was not in a position to pay the loan amount in lumpsum.

(3.) ON behalf of the plaintiff one Shri Bhaskar Govind Tagare was examined at Exhibit 54 who has proved the documents executed by the defendants and tendered documents, Exhibits 41, 47, 48 and 49. The document, Exhibit 41 is the promissory note signed by the defendants. As the original defendant No.1 has admitted the claim of the plaintiff Bank the suit was proceeded ex-parte against the defendant No.1. The appellant's evidence was recorded at Exhibit-56. The said witness has admitted in cross-examination that he did not reply to the notice issued by the Bank. The learned trial Judge, after considering the evidence, has by a judgment and decree dated 27-10-1980 decreed the suit by accepting the evidence led by the plaintiff Bank and passed a decree in favour of the plaintiff Bank holding that both the defendants were jointly and severally to pay the amount of Rs.33,934-57 Ps. and the costs of the suit. While granting decree, the court has awarded interest at the agreed rate viz. 18% per annum. As per the decree, the Court has granted, six equal half-yearly instalments are to be paid on or before 1st February and 1st of August of every year and in case of the default in payment of any one instalment, the plaintiff Bank was entitled to recover the whole of the decretal amount at once. The original defendant No.2 guarantor has accordingly challenged the said decree.