STATE BANK OF INDIA Vs. SIMKO ENGINEERING WORKS

JUDGEMENT

(1.) THE plaintiff, State Bank of India, has approached this Court through the present regular second appeal. The challenge made in the appeal is to the judgments and decree passed by the learned Courts below whereby the suit filed by the plaintiff-bank for recovery has merely been decreed against defendant Nos. 5 and 6 only whereas the suit filed by the plaintiff-bank has been dismissed qua the remaining defendant Nos. 1 to 4. The plaintiff-bank has claimed that suit filed by it should have been decreed against all the defendants.

(2.) CERTAIN facts be noticed :

(3.) THE learned trial Court on the basis of the evidence available on the record found that the plaintiff-Bank had been able to prove that the aforesaid amount was due to the plaintiff-bank but held that in view of the stipulation contained in clause 11 of the partnership deed, the defendant-firm and defendant Nos. 2 to 4 would not be liable for the aforesaid amount. It was further held by the learned trial Court that the liability could be fastened upon Kusum Malik, defendant No. 5 who chose to apply for the grant of aforesaid facilities and thereafter authorised Mr. M.R. Kathuria, to operate the accounts with the plaintiff-bank. Similarly, it was held that defendant No. 6, Vallab Dass Malik who was guarantor for the aforesaid facilities granted to defendant No. 1, at the behest of defendant No. 5 was also jointly and severally liable. On the basis of the aforesaid findings, the learned trial Court decreed the suit filed by the plaintiff against defendant Nos. 5 and 6 along with future interest at the rate of 14% per annum from April 1, 1977 till the institution of the suit, with a further interest at the rate of 18% per annum from the date of filing of the suit till the date of realisation. However, the suit against the remaining defendant Nos. 1 to 4 was dismissed.