SARDAR GURJINDER SINGH Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) THIS appeal under Section 96 of the Code of Civil Procedure, has been preferred by the principal debtor and one of the guarantors against the judgment dated 1.1.97, passed by District Judge, Shahdol in C.S. No. 1 -B/92. Respondent No. 2, the other guarantor, has not filed any appeal against the judgment and decree making him and the Appellants, jointly and severally, liable to pay a sum of Rs. 3,55,667/ - together with interest to Respondent No. 1, Bank. During pendency of present appeal, principal borrower Appellant No. 1 Sardar Gurjinder Singh died, and his Legal Representatives have been brought on record. Factual matrix is as under:

(2.) ON the strength of the aforesaid pleadings of parties, trial court framed issues. Parties went to trial and adduced evidence in support of their respective claims. As mentioned hereinabove, on appreciation of evidence available on record, trial court has decreed the suit of the Plaintiff against the Appellants as also against Respondent No. 2. Hence, this appeal. We have accordingly heard learned Counsel for the parties at length and perused the record. Shri Pranay Verma, appearing for Appellants, has contended that following questions would arise for consideration in this appeal:

(3.) WE shall accordingly take up the aforesaid questions ad seriatim. Ex.P/37 is the letter of confirmation with regard to the amount due and outstanding against Appellant No. 1 in favour of Respondent No. 1/Bank. The said letter of confirmation was executed on 2.5.89 in Khalesar Branch, Umaria. It bears the signatures of Accountant of Bank, as also Appellant No. 1. To prove his signatures, the same has been compared with Ex.P/39, Vakalatnama undisputedly executed by him and filed in the said suit. Critical examination and comparison of the signatures would show that both belong to the same person that is Appellant No. 1. It raises no amount of doubt in our mind that Ex.P/37 was signed by Appellant No. 1. The suit came to be filed on 15.1.92. If Appellant No. 1 had confirmed his balance as per Ex.P/37, on 2.5.89, then obviously the suit would be deemed to be within the period of limitation. Appellant No. 1 has taken the plea that on the said date he could not have executed the same, as he was admitted in Triveni Hospital, at Jabalpur. To prove this fact, he has relied on discharge ticket (Ex.D/1) and certificate (Ex.D/2). Ex.D/1 shows that he was first admitted on 25.11.86 and was discharged on 22.12.86 and was again admitted on 24.1.87. Second date of discharge in the same is not given. He was admitted for compound fracture of tibia and fibula, commuted upper 1/3 left side. Ex.D/2 shows that he was again admitted in the hospital on 1.5.89 and was discharged on 6.5.89, but this does not show if he was advised any bed -rest for any particular period and by what date he could have returned to work. All these places are lying blank in Ex.D -2. Evidence of DW -1 Dr. Jitendra Jamdar is also on record. From his evidence also, it could not be established with certainty that on 2.5.89, Appellant No. 1 was admitted in his hospital, at Jabalpur. He has not produced the original record showing the entries thereof. Ex.D/2 is only a certificate issued in favour of Appellant No. 1 which also does not disclose the basis on which the said certificate has been prepared Not only this, had he really been admitted during the aforesaid period, then he must have been issued an admit card and discharge ticket also, but the same have been filed. Despite the evidence of DW -1 Dr. Jitendra Jamdar, we are of the opinion that Appellant No. 1 has not been able to prove that on 2.5.89, he was admitted in hospital at Jabalpur and, therefore, was not able to execute the confirmation of accounts vide Ex.P/37. It is clear from the evidence of Defendants that they have tried to build up false and baseless story so as to defeat the just and proper claim of the Plaintiff. Had it really been so, then it was incumbent on Appellant No. 1 to have brought it to the notice of Plaintiff as soon as notice of demand with regard to the amounts due, was sent to them. Thus, according to us, Appellant No. 1 had confirmed his balance with the bank on 2.8.89. If that is so, then the suit having been filed within a period of 3 years would be deemed to be within the period of limitation.