AMAL KRISHNA RAY Vs. BANK OF BARODA

JUDGEMENT

(1.) This second appeal has been preferred by the original defendant No. 2 in Money Suit No. 208 of 1980 against the confirming judgment and decree passed in Money Appeal No. 3 of 1991 by the learned District Judge, Cuttack, which was preferred by the original defendant No. 2 (appellant). It may be mentioned that during pendency of the second appeal, the sole appellant having expired, his legal heirs filed Misc. Case No. 113 of 2011 for being substituted in his plasce and the prayer for substitution has been allowed by order dated 20.4.2011.

(2.) Short facts involved in the present second appeal are that the respondent No. 1-Bank of India filed money Suit No. 208 of 1980 before the learned 1st Addl. Subordinate Judge, Cuttack (now Civil Judge (Senior Division), Cuttack) inter alia, alleging that the original respondent No. 2 in this appeal, who also expired and has been substituted by his legal heirs, incurred a loan of Rs. 5000/- from the plaintiff-Bank on 3.2.1973. The borrower executed a demand promissory note on the same date promising to repay the loan amount on demand along with interest @7% per anum over the Reserve Bank of India rate at a minimum of 13% with quarterly. The original appellant, who was the defendant No. 2, stood as a guarantor for the said loan guaranting due discharge and repayment of the aforesaid amount advanced to the defendant No. 1 (original respondent No. 2). The plaintiff further alleged that both the defendants executed a letter of acknowledgement on 5.1.1976 and 25.11.1978 acknowledging their liabilities. The original defendant No. 2 (appellant) also executed a General Form of Guarantee. The plaintiff-Bank, therefore, prayed for recovery of the outstanding amount in the said loan account as on the date of filing of the suit, amounting to Rs. 13,423.20. The defendant No. 2 (Original appellant) filed a separate written statement, inter alia, stating that the documents were obtained by the defendant No. 1 from him with the active connivance of the plaintiff-Bank and his signatures were taken in the acknowledgements, which were not filled up at the time of singing by him. He further pleaded that on coming 'to know that the borrower-defendant No. 1 has not made any repayment in the loan account, he wrote a letter on 18.12.1976 to the plaintiff-Bank to take necessary steps for recovery of the dues from the defendant No. 1 failing which the guarantee bond may be cancelled. As nothing was done by the plaintiff-Bank on the said leter, he again issued another letter on 21.10.1977 to the Bank cancelling the guarantee agreement. The defendant No. 1 also filed a separate written statement with simple denial of the plaint allegations. The trial Court on the above pleadings framed as many as seven issues and came to the findings that the defendant No. 2 has acknolwedged his liability as a guarantor in the two acknowledgment letters under Exts. 3 and 4, and the letter of the defendant No. 2 cancelling the surety bond has not been received by the plaintiff-Bank. Along with the aforesaid two findings, the Trial Court also found that the loan was advanced by the plaintiff-Bank to the defendant No. 1 on the guarantee of the defendant No. 2 and the amount as claimed in the plaint is liable to be repaid by both the defendants jointly and severally. Basing on the above findings, the Trial Court decreed the suit. The defendant No. 2 (original appellant) being aggrieved preferred Money Appeal No. 3 of 1991. The learned District Judge, Cuttack by his judgment dated 25.9.1992 with regard to the question as to whether the defendant No. 2 has sent the letters under Exts. A and A/1 held as follows :

(3.) The lower appellate Court also confirmed the other findings of the Trial Court ultimately dismissed the appeal. Hence, this second appeal.