KESHAR BAI Vs. CENTRAL BANK

JUDGEMENT

(1.) These two appeals arise out of the judgment and decree dated 23.2.1983 passed by the then 4th Addl. District Judge, Gwalior in Civil Suit No. 98/78 decreeing the suit for recovery of Rs. 1,04,467.65p. against other defendants Om Parkash Gupta and Bhagwan Das Laharia. As regards the present appellant, the decree amount was directed to be recovered from the assets of Gaya Prasad in the hands of the appellant. The interest was allowed at the rate of 17% per annum which was agreed with other costs and expenses, etc.

(2.) First Appeal Nos. 4/85 and 19/84 are being decided by a common judgment. F.A. No. 4/85 shall be the leading case.

(3.) Brief facts of the case are that plaintiff respondent No. 1/Central Bank of India had filed Civil Suit No. 98/78 for recovery of loan amount advanced to respondent No. 3. Om Prakash Gupta, Respondent No. 3 had taken loan of Rs. 75,000/- and purchased the Mini bus No. 7707 on 24.10.1975. The original appellant's husband was one of the guarantors. He later on died on 14.10.1976 before filing of the suit. It is alleged by the appellant that Gaya Prasad had no property of his own and nothing could be recovered from the appellant. Gaya Prasad was guarantor in his personal capacity. Gaya Prasad himself had warned the principal debtor respondent No. 3 when he committed default. Gaya Prasad had requested the Bank to seize the Mini bus when the default was committed by respondent No. 3, but the Bank itself was negligent in that matter. The negligence of the Bank was not at all considered by the Trial Court. The value of security had diminished on account of the negligence on the part of the Bank and no guarantee could be fastened on behalf of the appellant-guarantor. The respondents contested this appeal on the grounds that Gaya Prasad was a guarantor. The liability of the guarantor was joint and several with the principal debtor. There was another guarantor against whom also a decree was passed. Since Gaya Prasad had died, the decree against the respondents is lying to be recovered from the assets of Gaya Prasad in the hands of appellant. The appeal therefore was without any merit.