STATE BANK OF INDIA Vs. TAPNARAIN SINGH

JUDGEMENT

(1.) The plaintiff appellant has preferred the present appeal against the judgment and decree dated 19.9.1977 passed by the 3rd Additional Sub-Judge, Purnea in Money Suit Nos. 17 of 1976/15 of 1977. The plaintiff has filed the suit for a decree of Rs. 13,062.05/- against the defendants and also for interest on that amount till its realization. A relief for attachment of hypothecated property has also been sought.

(2.) Plaintiff's case in brief is that the father of defendant no. 1 was carrying on the business of plying taxi on permit till his death and defendant no. 2 is the sole proprietor of his firm carrying out business in the name and style of 'Shankar Stores' in Forbesganj Town. Further case of the plaintiff is that father of defendant no. 1 had applied for a loan advance to the plaintiff which had sanctioned an advance limit of Rs. 16,394.35/- in installment credit loan to the father of defendant no. 1 on the security of hypothecation of the taxi of the father of defendant no. 1. The father of defendant no. 1 had executed the agreement and defendant no. 2 had guaranteed the repayment. On 28.11.1970, the father of defendant no.1 withdrew the aforesaid amount of Rs. 16,394.35/-. He paid Rs. 4,095/- up to 11.1.1972 as installment at the rate of Rs. 455/- and thereafter failed to pay the agreed installments. In the meantime, he died leaving behind his son, the defendant no. 1, as his only heir. On demand by the plaintiff, the amount was not returned back by the defendants. Plaintiff's case is that the liability of the guarantor (defendant no. 2) is of equal footing and co-extensive with that of defendant no. 1, who is also liable to pay the entire claim.

(3.) Defendant No. 1 did not appear in the suit despite service of notice. However, defendant no. 2, the guarantor, had appeared and filed written statement taking a stand that after the death of the original loaned, leaving behind defendant no. 1 as the sole heir, he is no way liable for payment of the claim of the plaintiff.