Judgment :- Mishra, J. A money suit has been decreed ex parte against the 1st, 3rd and 4th defendants jointly and severally and dismissed on contest against the 2nd defendant by a learned single Judge of this Court in C.S.No.47 of 1997. The plaintiff has appealed against the said judgment, insofar as its claim against the 2nd defendant is concerned. No appeal, however, has been preferred by any of the judgment-debtors (defendants 1, 3 and 4). The admitted case, however, of the parties has been as follows: The plaintiff is a banking institution having its registered office at Madurai. The 1st defendant has been a producer of films. He obtained a loan sanctioned for a sum of Rs. 5,00,000 repayable in 12 monthly instalments with interest thereon at 11% over the Reserve Bank rate of interest subject to a minimum of 20% per annum from the plaintiff-appellant and executed a promissory note on 2. 1975 on which date he received a sum of Rs.25,000. He also executed a hypothecation deed hypothecating his rights in the said picture, the negatives, the release prints and other materials. He received a further amount of Rs.95,000 on 2. 1975 and another sum of Rs. 1,00,000 on 13. 1975 from the plaintiff. The 2nd defendant/respondent is the brother of the 1st defendant. 2. According to the plaintiff, the 2nd defendant stood guarantee for the due repayment of the said sum by his letter dated 15. 1975. In June, 1975 the 1st defendant approached the plaintiff for a further advance of Rs.3 lacs. It was sanctioned on 16. 1975 by the plaintiff and made available to the 1st defendant in June, 1975. The 1st defendant executed a promissory note on 16. 1975 for the said sum of Rs.3 lacs promising to repay the same with interest at 11% over and above the Reserve Bank rate of interest subject to a minimum of 20%, By way of security for the loan, he hypothecated the negatives, release prints and other materials connected with the picture and executed a hypothecation deed dated 16. 1975. 3. According to the plaintiff, the 2nd defendant guaranteed the due repayment of this loan as well by his letter dated 27. 1975. Besides the 2nd defendant, 3rd and 4th defendants also guaranteed the repayment of the two loans, one vide the agreement dated 2. 1975 and the other vide the agreement dated 16. 1975. 1975. 3. According to the plaintiff, the 2nd defendant guaranteed the due repayment of this loan as well by his letter dated 27. 1975. Besides the 2nd defendant, 3rd and 4th defendants also guaranteed the repayment of the two loans, one vide the agreement dated 2. 1975 and the other vide the agreement dated 16. 1975. 4. Alleging that loans were not repaid although the picture was released and that there were some other creditors who filed suits in respect of their claims against the 1st defendant, the plaintiff filed the suit alleging as on 21. 1977, a sum of Rs. 6,87,484.34 in respect of the first loan and a sum of Rs. 4,87,618.76 in respect of the second loan became due, that is to say, in all Rs. 10,94,1010. 5. The case of the 2nd defendant/respondent has, however, been that he had nothing to do with the transaction between the plaintiff and the 1st defendant and that the allegation that the loans were sanctioned to the 1st defendant on the counter-guarantee of the 2nd defendant is not true. Their main case in this behalf has been, the agreement for the sanction of the loan to the 1st defendant by the plaintiff was on 2. 1975 and the amounts had already been advanced to the 1st defendant before the alleged letter of guarantee was obtained from the 2nd defendant on 15. 1975. Similarly, the letter of guarantee dated 27. 1975 was not a guarantee for the agreement dated 16. 1975. In short, the alleged letters of guarantee were without consideration and thus, not enforceable against the 2nd defendant. The other objection of the 2nd defendant has been summarised by the learned single Judge in these words: "There have been various acts of commission and omission on the part of the plaintiff to the detriment of the interest of this defendant and the guarantees even assuming they have been validly given stand automatically discharged. The plaintiff had admittedly the entire world negative rights of the picture Ilaya Thalaimurai’ including the copy right of distribution, exhibition and exploitation of the picture and could have realised the entire amount before release of the said picture. The plaintiff has failed to enforce the security over the picture and the suit claim against this defendant is therefore untenable. The plaintiff had admittedly the entire world negative rights of the picture Ilaya Thalaimurai’ including the copy right of distribution, exhibition and exploitation of the picture and could have realised the entire amount before release of the said picture. The plaintiff has failed to enforce the security over the picture and the suit claim against this defendant is therefore untenable. The plaintiff has settled the dues of the first defendant to third parties from the realisation of the picture which the plaintiff is not authorised in law or by the terms of the guarantee to do. Had the realisation been applied to the loan account of the plaintiff, there would have been no balance due by the first defendant to the plaintiff. The second defendant could not, therefore, be held liable. This defendant has been kept in the dark and has not been apprised of the realisations of the picture and the appropriations made and there has been no notice to this defendant. This defendant is given to understand that the scheduled release of the picture has been wantonly prevented by the plaintiff resulting in heavy loss. This has acted to the detriment of this defendant and the plaintiff’s claim against this defendant is not sustainable. The allegations in paragraph 11 of the plaint would show that there has been novation of the original agreement between the plaintiff and the first defendant without the knowledge and consent of this defendant and on that ground also the defendant’s guarantee stands discharged. The plaintiff has deliberately relinguished the security created in their favour to the detriment of the interest of this defendant and therefore the alleged guarantee, in any way, shall stand extinguished. The second defendant therefore prayed for the dismissal of the suit with costs." 6. The trial court has negatived the plaintiff’s case on both, that is to say, whether the letters of guarantee executed by the 2nd defendant are devoid of consideration and are void and unenforceable and whether the plaintiff relinquished its rights over the picture and thus, the liability of the 2nd defendant was discharged and accordingly, dismissed the plaintiff’s suit against the 2nd defendant: It has, however, decreed as aforementioned the suit against the 1st, 3rd and 4th defendants. It is indeed a case where these two letters obtained by the plaintiff are given by the 2nd defendant himself after the agreement under which loans were advanced by the plaintiff to the 1st defendant. The plaintiff has miserably failed in bringing on the record oral or documentary evidence to prove that the 2nd defendant had anything to do with the sanctioning of the two loans or that he promised to stand as guarantor for the due repayment of these loans prior to the sanctioning of these loans except the two letters, which are subsequent to the two transactions on which the loan was advanced by the plaintiff to the 1st defendant. Learned single Judge has referred to the evidence of the Branch Manager (P.W.1) and considered all the relevant evidence and has said as follows: "Ex.P-31 is a statement of assets and liabilities, given by the second defendant. It is not dated. It is argued that the statement of assets is obtained from the guarantor before the loan is sanctioned and hence Ex.P-31 must also have been obtained from the second defendant prior to the sanctioning of these two loans. No such inference can be drawn. In the plaint itself there is a reference to the plaintiff-bank giving a clear performance guarantee in favour of the Joint Chief Controller of Exports and Imports, Madras, against the counter-guarantee of the defendants 1 and 2. It is quite possible that this statement of assets has been given by the second defendant in connection therewith. It is also significant to note that this statement of assets under Ex.P-31 was not put to the second defendant when he was in the witness box as P.W.1. It is only after the closing of his evidence this document has been produced and marked. I am therefore unable to hold on the basis of Ex.P-31 that the second defendant must have promised to guarantee the due repayment of these two loans by the first defendant before the loans were sanctioned. The proper person who could speak to what happened before or at the time of granting these two loans and the part played by the second defendant in the sanctioning of the loans to the first defendant is either the Branch Manager of the plaintiff-bank at T.Nagar at the relevant point of time or the General Manager of the bank who has sanctioned the loan. Mr.Goduva was the Manager of T.Nagar branch at the relevant point of time and Mr.Palaniappan Ramaswami was the then General Manager of the Bank. They have no doubt left the services of the bank but they are alive. No attempt has been made by the plaintiff to summon and examine them with respect to the plaintiff’s case that the second defendant stood as guarantor for the repayment of the loans advanced to the first defendant prior to the sanctioning of the loans. The only reasonable inference that can be drawn is that their evidence if produced will be unfavourable to the plaintiff. 1 therefore hold on merits that the second defendant did not stand as guarantor for the due repayment of the loans advanced to the plaintiff prior to the granting of the loans. We have now to see how far Exs.P-3 and P-5, letters of guarantee executed by the second defendant long after the loans were sanctioned are supported by consideration." The trial court has, on the second issue aforementioned, however said, "The plaintiff had full rights over the picture ‘Ilaya Thalaimurai under Exs.P-2, P-15, P-5 and P-16 hypothecation deeds for the two loans and interest thereon. But, instead of enforcing this security and realising the money the plaintiff has itself permitted the first defendant to borrow further sums by selling the rights of distribution of the picture in several areas and given letters of consent to the laboratory to supply prints to those distributors. The plaintiff has thus surrendered the security held by it so as to deprive the second defendant of his remedy against the first defendant and the security. In such a case as laid down in Sec. 139 of the Contract Act the surety is discharged. This issue is also found against the plaintiff." 7. The plaintiff has thus surrendered the security held by it so as to deprive the second defendant of his remedy against the first defendant and the security. In such a case as laid down in Sec. 139 of the Contract Act the surety is discharged. This issue is also found against the plaintiff." 7. We would have paused to consider how and why the 2nd defendant came to execute the letters of guarantee for the loans made available by the plaintiff to the 1st defendant and whether in the circumstances that indicated that the 2nd defendant did play some role in the transaction, there was any promise by him, which promise if not a guarantee or indemnity, was one which the plaintiff could enforce against the 2nd defendant, but for the serious infirmity created in the case by the plaintiff itself in releasing the securities in favour of third parties by permitting the 1st defendant to borrow further sums by selling the rights of distribution of the picture in several areas and giving letters of consent to the laboratory to supply prints to those distributors. A guarantor has all the interests of the creditor in securities, when he discharges the guarantee in accordance with law and by releasing securities in favour of the 1st defendant, thus the plaintiff has discharged the sureties (see: Sec.139 of the Contract Act). The plaintiff may not be that innocent in accepting letters from the 2nd defendant as guarantee after the execution of the agreement, but the 2nd defendant can also be not wholly innocent in giving letters of guarantee. Unfortunately, for the plaintiff, however, there is no pleading to support any case except the plea that the 2nd defendant stood guarantee for the loan aforementioned. For, in examination of the facts whether the 2nd defendant made any promise to the plaintiff and the plaintiff is entitled to enforce the said promise, the plaintiff has not made out any case of a quasi contract and consideration for the same in the sense that the plaintiff acted upon the promise of the 2nd defendant and accordingly, made payments of the instalments of loans to the 1st defendant. A faint argument that in respect of the first loan of Rs.5 lacs, there has been disbursement of some amount after the execution of the letter of the guarantee by the 2nd defendant on 15. A faint argument that in respect of the first loan of Rs.5 lacs, there has been disbursement of some amount after the execution of the letter of the guarantee by the 2nd defendant on 15. 1975 under Ex.P-3 and similarly, in respect of the second loan for Rs.3 lacs, some amounts disbursed to the 1st defendant after the execution of the letter of guarantee, has rightly been rejected by the learned single Judge. For, the subsequent payment in respect of the first loan had been made in furtherance of the sanctioning of the loan on 2. 1975 on the strength of Ex.P-1 promissory note and Exs.P-2 and P-15, hypothecation deeds executed by the 1st defendant on 2. 1975. So also, the subsequent payment in respect of the second loan, was made in pursuance of the sanctioning of the loan on 16. 1975 and the execution of Ex.P-4 promissory note and Exs.P-5 and P-16 hypothecation deeds by the 1st defendant on 16. 1975. We are constrained on the facts of the instant case to say that if the plaintiff has failed against the 2nd defendant, he has failed for the reason of some irresponsible acts of its officers in releasing the securities without the consent of the 2nd defendant (since they were treating the 2nd defendant as a guarantor) and for the reason of inadequacy of the pleading as to the character of the promise of the 2nd defendant. In spite of the earnest effort of the learned counsel for the appellant, we have not been able to persuade ourselves to interfere with the impugned judgment. It is also not understandable, why the plaintiff/appellant did not implead the 1st defendant, 3rd defendant and 4th defendant as party-respondents in the appeal. The appeal for the said reason also is defective. There is no merit in the appeal. The appeal is, accordingly, dismissed. On the facts of this case, however, there shall be no order as to costs.