P JAGDISHWAR REDDY Vs. BANK OF MAHARASHTRA

JUDGEMENT

(1.) THE second defendant in O.S.No.40 of 1996 is the appellant herein, who seeks to question the decree for recovery of amount of Rs.50,501/- passed jointly and severally against defendants 1 and 2 together with future interest at 5% over the then bank rate at 15% per annum with quarterly rests and costs. THE said decree was confirmed in appeal being A.S.No.3 of 1997 by the lower appellate Court.

(2.) THE facts, in brief, are as follows: (a) THE first defendant obtained a loan from the respondent bank herein for Rs.25,000/- and the defendants 2 and 3 stood guarantee for the said loan. THE first respondent bank filed the aforesaid suit on the ground that the borrower did not repay the installments but was going on acknowledging the debt and confirming the balance outstanding. THE suit, therefore, came to be filed on 29.12.1994 on the basis of acknowledgements dated 05.12.1994 and 22.12.1994 and the balance outstanding as on 30.12.1994 was Rs.50,510/-. (b) THE first defendant/borrower filed a written statement admitting the availing of the loan but denied that he executed any documents. He took a stand that certain blank papers were got signed by him without his knowledge. He also denied any acknowledgment of debt and claimed that nobody informed him of repayment. He, therefore, took a stand that the suit is barred by limitation. (c) THE appellant/defendant No.2 also filed a written statement contending that though the first defendant/borrower has availed the loan, the second defendant has never acknowledged the debt at any time and as such, the suit against him is barred by limitation. THE third defendant, who is another surety, could not be served with the suit summons and on account of default of the plaintiff-bank the suit against him stood dismissed.

(3.) ON appeal by the second defendant, the finding of the trial Court, so far as Exs.A4 and A5 was concerned, was confirmed by the Iower appellate Court on examining the evidence on record. So far as the contention of the second defendant that he is not bound by the acknowledgement said to have been executed by the first defendant is concerned, the lower appellate Court found that Ex.A4 agreement was voluntarily signed by both the guarantors including the appellant and his liability being coextensive with principal borrower under Section 128 of the Indian Contract Act, shows that the appellant/surety is equally liable. The appeal was, therefore, dismissed without costs. Hence, this second appeal.