JAGDISH CHANDER Vs. BANK OF INDIA

JUDGEMENT

(1.) 5th defendant is the petitioner herein, originally he was proceeded ex-parte and an ex-parte order having been set aside he filed his written statement and applied for framing of additional issues under O.14, R.5, Code of Civil Procedure. That application has been dismissed by the trial Court. Hence, the present revision petition.

(2.) The plaintiff bank filed a suit for recovery of money on the ground that the Ist defendant had obtained a loan from the plaintiff-bank, and defendants 2 and 3 are the partners of Ist defendant-firm and defendants No. 4 and 5 are guarantors for repayment of the loan. The 5th defendant after getting the ex parte order set aside filed a written statement contending inter alia that defendant No. 2 and 3 are not the partners of Ist defendant and, therefore, the suit is bad and that he never executed any guarantee deed in favour of the plaintiff bank. After he filed his written statement, the trial Court framed an issue, namely "whether defendant No. 1 is a partnership firm and defendants No. 2 and 3 are the partners of defendant No. 1 firm - and placed the burden of proof on 5th defendant regarding this issue. In this revision petition, the grievance of the petitioner is that the burden of proof was wrongly placed on the 5th defendant, and, according to him it is for the plaintiff to prove that defendants no. 2 and 3 are the partners of Ist defendant. Defdts. No. 2 and 3 did not deny in their written statement that they are the partners of the Ist defendant-firm. It is not the case of the 5th defendant that he is the partner of the firm or any other persons are the partners in the firm. In the written statement he did not name any other person as partner of the Ist defendant-firm. When the loan was obtained by the Ist defendant, and defendant Nos.2 and 3 admit that they are the partners of Ist defendant and when that fact is disputed by the 5th defendant, it is for him to prove that defendants No. 2 and 3 are not the partners of the Ist defendant-firm. In this view of the matter, I am of the view that the trial court rightly placed the burden of proof of the 5th defendant in respect of this issue.

(3.) The 5th respondent further seeks to frame three more issues. One of them is "whether the guarantor should be set free as the loan has been advanced in variance of the terms of the agreement and the sanction order - This issue does not arise on the pleadings of the 5th defendant. He has not averred in the written statement that his liability under the contract of guarantee for any acts or omissions or violation of its provisions by the plaintiff bank. 5th defendant has not given any instances which discharge him from the liability as a guarantor. In the absence of any averments as to how he has been discharged from the liability under the guarantee deed, the issue which is sought to be framed does not arise.