KARNAIL SINGH RANDHAWA Vs. JAGIR KAUR AND ORS.

JUDGEMENT

(1.) THIS is defendant's Regular Second Appeal against the judgment and decree dated 6.6.2007 passed by the District Judge, Rupnagar against the judgment and decree dated 6.1 1.2006 passed by the Civil Judge (Senior Division), Rupnagar. It is apt to notice the factual background of the case.

(2.) DEFENDANT No. 1 -M/s Randhawa Rice and General Mills, Chamkaur Sahib, Rupnagar was a partnership firm comprising of Karnail Singh Randhawa, Bharpur Singh and one Harjinder Singh son of Karam Singh and its partners. The firm applied for loan from Punjab and Sind Bank, Chamkaur Sahib, Rupnagar -defendant No. 4. Later on, the Firm was dissolved and Harjinder Singh was absolved of his liabilities in terms of the judgment dated 19.8.1983 passed by the Sr. Sub Judge, Rupnagar and the entire liability was taken over by the other two partners who are defendants No. 2 and 3 in the suit. Defendants No. 1 to 3 failed to pay the loan amount to the Bank and consequently, a suit was filed by the Bank against defendants No. 1 to 3, borrowers and Hakikat Singh and Bara Singh, father of the plaintiffs, in their capacity as guarantors. Harjinder Singh who was one of the original partners, was also impleaded as defendant in the suit being Civil Suit No. 169 of 15.6.1981 for recovery of Rs. 3,17,140.88p in the Court of Civil Judge (Sr. Division), Rupnagar. The suit came to be decreed against all the defendants, except Harjinder Singh and a preliminary decree came to be passed on 19.8.1983. It may be relevant to mention that the land of Bara Singh, the guarantor had been mortgaged with the Bank and since the suit was based upon the mortgage, a preliminary decree came to be passed. Even after the passing of the preliminary decree, loan was not liquidated by the defendants and consequently a final decree came to be passed on 25.8.1987 against the defendants in that suit, including Bara Singh in his capacity as a guarantor. Decree having not being satisfied, the Bank filed Execution Petition for execution of the decree being Execution No. 16 dated 17.3.1990 and property of Bara Singh, subject matter of mortgage was attached in order to be sold. During pendency of the execution, Bara Singh died on 1.5.1999 and the plaintiffs in the suit came to be impleaded as judgment debtors in his place as his legal representatives. In view of the attachment of the property of Bara Singh which was, eventually, inherited by the plaintiffs, they paid the decretal amount of Rs. 9 lacs in two installments of Rs. 1.00 and Rs. 8.00 lacs. On satisfaction of the decree, the land of the plaintiffs was released from the attachment. After incurring the liability of payment of the decretal amount on behalf of their deceased father, Bara Singh, a guarantor judgment debtor, the plaintiffs filed the present suit for recovery of Rs. 9.00 lacs against defendants No. 1 to 3, appellants herein and claimed interest at the rate of 12% per annum. Defendants, appellant herein, appeared before the trial court and filed written statement taking several preliminary objections that suit is not maintainable as the same has not been filed by a competent person and that the suit is barred by time as also under Order 2 Rule 2 C.P.C. However, they admitted that defendants No. 2 and 3 are partners in defendant No. 1 -firm. They also admitted to have entered into an agreement with the bank for sanctioning cash credit limit of Rs. 1,50,000/ -, but stated that no amount was advanced by the Bank and also disputed the genuineness of the bank's documents. They even went to the extent of saying that the Bank embezelled the stocks of the Firm. The Punjab and Sind Bank, having been impleaded as defendant No. 4, admitted the averments made in the plaint and mentioned that the amount of decree against the firm and defendants No. 2 and 3 has been received from the plaintiffs in execution proceedings as the property of Bara Singh, predecessor -in -interest of the plaintiffs, who was a guarantor, had been mortgaged and attached in execution. The Manager of the Bank, who appeared in the witness box, proved the payment vouchers whereby decretal amount was paid by the plaintiffs. The trial court had framed following issues:

(3.) WHETHER plaintiff has no locus standi to file the present suit? OPD