NARYAN KHAN SARI UDHYOG Vs. PUNJAB NATIONAL BANK

JUDGEMENT

(1.) Defendants No. 1, 3, 9, 14 and 20 have filed this appeal under Section 96 of the Civil Procedure Code against the judgment and decree dated l.8.1995 rendered by District Judge, West Nimar, Mandleswar in Civil Suit No. 24-A of 1979.

(2.) Facts lie in a narrow compass. Appellant No. 1 is a Partnership venture of which defendants No. 2 to 10 as shown in the suit, are the partners. During the pendency of the suit original defendant No. 5 (Smt. Shakuntala) died and her legal representatives A to K were brought on record. Defendant No. 11 is also a Partnership firm of which remaining defendants, shown as No. 12 to 20, are its partners. The defendant No. 21 is a party from Bombay to whom the defendants had sent a Hundi through the plaintiff but the Hundi was not honoured. The respondent No. 1 filed the suit on the ground that the defendants No. 1 to 10 had obtained the facility of taking loans of four kinds (Cash credit Pledge; Cash credit Hypothecation; Term Loan, and Documentary D.D.) and extent as particularised in the suit. Defendants No. 11 to 20 acted as guarantors for defendant No. 1 and created equitable mortgage by deposit of the title needs with the Bank. The partners of defendant No. 1 executed hypothecation agreement of the industry machineries and goods in favour of the plaintiff. Defendants No. 2 to 10 also executed on 5-7 promissory notes in favour of the plaintiff for the advances made by it. It was also agreed that interest shall be 7% more than the Reserve Bank rate. Defendant partnership firm took several loans under the aforesaid arrangements from the Bank. A sum of Rs. 6,03,183-90 Ps. was found due till 30.6.1979 under the loan account. A sum of Rs. 46,693-77 Ps. was found due under the cash credit account or the hypothecation account up to 30.6.1979. The guarantors (Defendants No. 11 and partners) sent a Hundi for one lac of rupees to the plaintiff for encasnment but the Hundi was not honoured when presented at Bombay and therefore the plaintiff became entitled to debit to defendant the sum of Rs. 1,01,597-40 Ps. The debtors and the guarantors failed to make the payment on due dates. The sum of Rs. 7,86,831-25 Ps. inclusive of interest was found due till the date of filing of the suit. The case proceeded ex-parte against the defendants No. 2, 4, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, 18 and 19. The contesting defendants through separate written-statements denied the liability. The trial Court framed the issues and on appreciation of the evidential material passed the judgment and decree in terms of para 23, which is extracted below :

(3.) We have heard Shri V. N. Maltara, learned counsel for the appellants and Shri N. C. Behal, learned counsel for respondent No. 1. None appeared for other respondents.