BANK OF INDIA Vs. S K MUKHARJEE

JUDGEMENT

(1.) Unsuccessful plaintiff against the dismissal of its suit being dissatisfied with the judgment and decree dated 30-6-1992 passed by the 10th Additional District Judge, Jabalpur in Civil Suit No. 64-B of 1990 (8-B of 1987) has preferred this appeal for decreeing its suit by setting aside the impugned decree and judgment,

(2.) Facts giving rise to this appeal are that the appellant plaintiff being a nationalized bank having a branch at Civil Lines, Jabalpur, respondent No. 1 Government Contractor had a current account in the aforesaid branch of the appellant. He requested appellant to provide overdraft facility. The same was considered and sanctioned up to the limit of Rs. 10,000.00 on prevailing terms and conditions in respect of such facility. In continuance of this transaction the respondent had executed a demand promissory note for the some of Rs. 10,000.00 with a promise to pay on demand along with interest @ 17%p.a. at quarterly rests. In this regard an agreement in respect of continuous security was also executed in support of the aforesaid promissory note by mentioning that the said documents would remain as continuous security and same be enforced in relation to the money which would be drawn by respondent. The respondent No. 2 Aroop Kumar Miikherjee had furnished the guarantee by way of executing an agreement of guarantee in favour of the bank on 11-5-1985 to provide the said facilities to respondent No. 1. As per terms of this agreement of guarantee, he took liability for repayment regarding all dues of the respondent No. 1 in connection of the aforesaid overdraft limit along with interest, costs, charges and expenses. Subsequent to transaction the respondent No. 1 failed to pay the outstanding dues. Thus, the suit was filed against the respondents for recovery of Rs. 25,380.75 p. along with interest @ 17.5% p.a. and costs. The aforesaid suit was verified, signed and dated by the Regional Manager, Mr. S. S. Joshi, as Principal Officer of the appellant-bank although he had power of attorney in his favour and a photo copy of the same was submitted along with the plaint.

(3.) The respondent No. 1 in spite of service of summons remained absent and ordered to be ex parle. While the respondent No. 2, guarantor had filed the written statement in which all the averments made by the plaintiff in the suit have been denied. Even the execution of the aforesaid documents relating to guarantee have also been denied.