CHISTOVAN VAZ Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THESE two appeals arise out of a judgment in Special Civil Suit No. 20/1983 on the file of the Civil Judge, Sr. Division, at Bicholim dated 30-11-88. The first respondent herein, Indian Overseas Bank has filed the suit against four defendants. The first defendant is the principal borrower, who had borrowed an amount of Rs. 96,000/- for the purchase of Mahindra Mini Bus on execution of hypothecation agreement on 2-5-1981. The said amount was to be repaid by 40 monthly instalments at the rate of Rs. 2,000/- per month. The defendants No. 2, 3 and 4 stood guarantors for the repayment of the aforesaid loan. Defendant No. 4 has expired. Defendant No. 1 defaulted the repayment. Presumably by virtue of the conditions of the hypothecation deed, the plaintiff Bank attached the vehicle and with the help of the police the said vehicle was detained from 26-2-1983 to 15-7-1983. Thereafter, the Branch Manager took the possession of the said vehicle from the police on 15-7-1983. Since the first defendant defaulted payment, the Mini Bus was put in auction pursuant to the order of the Court on 25-9-87 and in the auction, only Rs. 10,000/- was realised as value of the scrap. It is to be noted that from 15-7-1983 till it was auctioned, the mini bus was in the custody of the plaintiff. It has come out in evidence that during this period, it was exposed to rain and sun. It has also come out in the evidence that when the mini bus was attached by the police, at the instance of the plaintiff, it was road worthy. The plaintiff Bank has filed the suit against the defendants for the recovery of the balance amount due from the first defendant. The suit was decreed jointly and severally by the Court below.

(2.) DEFENDANTS No. 2 and 3, namely the sureties took a plea before the Court below that they are entitled for a declaration that their liabilities stand discharged under sections 139 and 141 of the Indian Contract Act and in view of the said plea, the lower Court has framed the following issue :

(3.) AFTER the trial, the aforesaid issue was found against the appellants. Defendant No. 2 filed First Appeal No. 30/89 and defendant No. 3 filed First Appeal No. 68/89, challenging the decree of the Lower Court.