JUDGMENT - SAMPAT H.T., J.:---This is a Transferred Application for recovery of Rs. 94,49,357.08 (Rupees Ninety Four Lakhs Forty Nine Thousand Three Hundred Fifty Seven and Paise Eight only). 2. The applicant is constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The defendant No. 1 is a company incorporated under the Companies Act, 1956. The defendant Nos. 2 3 are sued in the capacity of Guarantors. 3. The defendant No. 3 died during the pendency of the proceedings. Her legal heirs were not brought on record. Therefore, vide an order dated 14-12-2001, the Original Application as against the deceased defendant No. 3 stands abated. 4. It is the case of the applicants that they had granted various credit facilities to the defendant No. 1, such as Cash Credit-cum-Export Packing Facility, Letters of Credit, Inland Bill Purchase, Term Loans etc. The defendant No. 1 company had mortgaged immovable properties described in Exhs. "A" "B" and had hypothecated plan and machinery, raw materials, stocks and goods as also book debts as described in Exhs. "C", "D" "E" in addition to executing other usual documents such as Demand Promissory Notes, Letters of Continuing Security, Letters of Lien and Off Set etc. The defendant Nos. 2 3 in their personal and individual capacities executed a Deed of Continuing Guarantee. 5. After having availed the facilities, the defendants are said to have failed in maintaining the accounts regularly and to repay the outstanding amounts. It is contended that they had, however, meanwhile executed Letters of Acknowledgement from time to time, but failed to repay the amounts. 6. A recall Notice was ultimately issued on 26-9-1990 and all the defendants were called upon to make good the amounts mentioned therein, but to no avail. On the date of filing of the suit in the High Court, a sum of Rs. 54,23,271.94 was said to be outstanding in respect of Cash Credit-cum-Export Packing Credit Facility; a sum of Rs. 4,35,741.20 was said to be outstanding in respect of Term Loan Account-I; a sum of Rs. 17,91,499.45 was said to be outstanding in respect of Term Loan Account-II; a sum of Rs. 11,63,701.29 was said to be outstanding in respect of Letters of Credit, a sum of Rs. 2,47,375.17 was said to be outstanding in respect of Inland Bills Purchase/Discount Account; and a sum of Rs. 17,91,499.45 was said to be outstanding in respect of Term Loan Account-II; a sum of Rs. 11,63,701.29 was said to be outstanding in respect of Letters of Credit, a sum of Rs. 2,47,375.17 was said to be outstanding in respect of Inland Bills Purchase/Discount Account; and a sum of Rs. 2,87,768.03 was said to be outstanding in respect of ad hoc Cash Credit. All these amounts are claimed with future interest at the rates of 18.5, 17, 17, 19.5, 18.5 and 18.5% respectively and the securities are also sought to be enforced. 7. The defendant Nos. 1 2 have filed their Written Statement at Exh. 6. At the outset, it is stated that as the original application as against the defendant No. 3 has abated, the original application cannot proceed against the defendant Nos. 1 2 and on this count alone, the application is liable to be dismissed. 8. It is denied that the defendant Nos. 2 3 has executed a Deed of Continuing Guarantee, and without prejudice to this contention, it is stated that the claim against the defendant Nos. 2 3 in any case has become time barred. 9. The defendants have denied that the amounts as claimed by the applicants were and are due and payable. 10. The defendants have also denied to have executed documents of mortgage and hypothecation as also various other documents including the Letters of Acknowledgement. 11. An affidavit in support of the applicant's claim is filed at Exh. 9. The details of the various facilities granted to the defendants and the documents executed by them from time to time are deposed therein. All the original documents executed by the defendants including documents relating to equitable mortgage, letters of acknowledgement of debt, hypothecation deed, demand promissory notes and deeds of guarantee executed by the defendants are produced at Exhs. 15 to 64. The Statement of Accounts in respect of Term Loan Account-I is at Exh. 68; the Term Loan Account-III is at Exh. 69; Letter of Credit Account is at Exh. 70; Inland Bill Purchase/Discount Account is at Exh. 71; Cash Credit Facility is at Exh. 73 and ad hoc Credit Facilities is at Exh. 74. 12. All the documents which are executed at different times bear the signatures of the defendant Nos. 2 3 as also the seal of the defendant No. 1. 70; Inland Bill Purchase/Discount Account is at Exh. 71; Cash Credit Facility is at Exh. 73 and ad hoc Credit Facilities is at Exh. 74. 12. All the documents which are executed at different times bear the signatures of the defendant Nos. 2 3 as also the seal of the defendant No. 1. On the face of such documents, a bare statement of the defendants that they had not executed the documents does not stand to reason and must be rejected. 13. During the course of arguments, following three points were vigorously pressed on behalf of the defendants. 1. In view of the fact that the Original Application has abated as against the defendant No. 3, it is liable to be dismissed as against the defendant Nos. 1 2; 2. The applicants have failed to prove that they are entitled to claim the interest at the rates charged by them; and 3. The Letters of Acknowledgement are not stamped as required under Article-I of the Indian Stamps Act and hence, those are inadmissible in evidence. In the result, the Original Application becomes time barred. 14. It is necessary to deal with these points one by one. Point No. 1 : 15. It was vehemently argued by Shri Shailesh Shah, the learned Counsel appearing on behalf of the defendants that in view of the abatement order passed against the defendant No. 3, the suit stands dismissed against the defendant No. 3. If the suit as against the defendant No. 3 is dismissed, no contradictory or conflicting decree can be passed against the defendant Nos. 1 2, particularly when it is the case of the applicants that the liability of all the defendants was joint and several. In support of his arguments, he relied on the Judgements of Supreme Court in (Sri Chand v. Jagdish Pershad Kishan Chandan)1, A.I.R. 1966 Supreme Court 1427; (State of Punjab v. Nathu Ram)2, A.I.R. 1962 Supreme Court 89; (Badini v. Sirichand)3, A.I.R. 1999 Supreme Court 1077; and one Judgment of Karnataka High Court in (T. Raju Setty v. Bank of Baroda)4, 1992 Bank.J. 487 (Kant.) 16. As against this, the learned Counsel for the Applicant Bank, Shri Nahush Shah argued that where the liabilities sought to be enforced against the defendants are joint and several, the suit as a whole does not abate. As against this, the learned Counsel for the Applicant Bank, Shri Nahush Shah argued that where the liabilities sought to be enforced against the defendants are joint and several, the suit as a whole does not abate. It was further argued that the test to see whether the suit abates as a whole or only in part is to find out if the suit could, in the first instance, have been instituted and prosecuted with the deceased left out. In this vein, it was further argued that it is a well settled law that separate suits could be ruled against the principal debtor and various guarantors. It is within the right of the applicant/plaintiff not to sue any of the guarantors and if any such guarantor is left out, the principal borrower or the guarantor against whom the suit has been filed cannot make any grievance and the suit or application could legitimately be prosecuted against rest of the persons. 17. As rightly stated on behalf of the defendants, there cannot be any dispute about the proposition of law that separate suits could be filed against the principal borrower and the guarantors. However, that analogy cannot be applied here because here the applicants have chosen to rope in the principal borrower and all the guarantors in one suit, and therefore, in this case the question which needs to be determined is whether after dismissing the suit against one defendant, decree could be passed against other defendants. Had the defendant No. 3 not been sued at all, this question would not have arisen. But there is no dispute as regards the fact that the defendant No. 3 was sued and the original application as against the defendant No. 3 has abated. 18. In the case of State of Punjab v. Nathu Ram (supra), the Hon'ble Apex Court has laid down the following three tests to determine whether the appeal or suit as a whole would go or could be proceeded against the surviving parties. It has been stated that the Court will not proceed with an appeal. 18. In the case of State of Punjab v. Nathu Ram (supra), the Hon'ble Apex Court has laid down the following three tests to determine whether the appeal or suit as a whole would go or could be proceeded against the surviving parties. It has been stated that the Court will not proceed with an appeal. a. When the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased respondent; b. When the appellant could not have brought the action for the necessary relief against those respondents alone was still before the Court; and c. When the decree against the surviving respondents, if the appeal succeeds be ineffective, that is to say, it could not be successfully executed. 19. In the said case, it has been further observed by their Lordship of the Hon'ble Apex Court that the abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also as a necessary corollary the Appellate Court cannot in any way modify that decree directly or indirectly. Therefore, in the absence of the legal representatives of the deceased respondent, the Appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. 20. The facts of the case reported in (Patna Electric Supply Co. Ltd. v. Patna Municipal Corporation)5, A.I.R. 1970 Supreme Court 491, are quite different and in that case the judgement in Nathu Ram's case is not at all discussed. However, in the subsequent judgement i.e. A.I.R. 1972 Supreme Court 1181 (Ramagya Prasad Gupta v. Murli Prasad)6, this point is again discussed at length and the judgement in Nathu Ram's case is also discussed therein. It has been specifically stated in the said case by Their Lordships that the three tests laid down in Nathu Ram's case are not cumulative tests and even if one of them is satisfied, the Court would dismiss the appeal. 21. It has been specifically stated in the said case by Their Lordships that the three tests laid down in Nathu Ram's case are not cumulative tests and even if one of them is satisfied, the Court would dismiss the appeal. 21. It is true that those judgements speak about the abatement of the appeal, but the appeal is a continuation of the suit and whatever guidelines are stated in respect of an appeal, would equally apply to a suit for determining whether or not the decree in instant itself could be passed. 22. In A.I.R. 1966 Supreme Court 1427 it has been specifically held that when the abatement of an appeal as far as deceased appellant becomes final, the entire appeal abates because the Appeal Court has no power to proceed with an appeal and to reverse and vary the decree in favour of all the plaintiffs or the defendants when the decree proceeds on a ground common to all the plaintiffs and defendants. 23. The learned Counsel for the Applicant Bank has relied on two judgements of the Supreme Court namely, A.I.R. 1970 Supreme Court 488 (Works Manager, Central Railway v. Viswanath)7, and A.I.R. 1976 Supreme Court 1091 (Municipal Board, Lucknow v. Pannalal)8. I have gone both the said cases, the facts of which do not exactly match with the case at hand. Moreover, in the said cases 62 Supreme Court 66 (Supreme Court) (supra) are not discussed and in the circumstances of the fact of those cases, it was held that the appeals in those cases as a whole did not abate because the legal heirs of one of the deceased parties were not brought on record. 24. Even in 62 Supreme Court it has been observed that the question whether a Court could deal with such matters or not will depend on the facts of each case and therefore, no exhaustive statement can be made about the circumstances when it is possible or not possible. 25. It is therefore follows that the suit does not automatically abate against the remaining defendants if Legal Representatives of deceased defendant are not brought on record, and each case will have to be judged independently to find out whether in such circumstance it would be possible for the Court to proceed with the other defendants or not. 26. 25. It is therefore follows that the suit does not automatically abate against the remaining defendants if Legal Representatives of deceased defendant are not brought on record, and each case will have to be judged independently to find out whether in such circumstance it would be possible for the Court to proceed with the other defendants or not. 26. In (Damodar Patra v. Kanchan)9, A.I.R. 1963 Orissa 313, where the suit was to recover possession of several items of lands in possession of different defendants, the death of one of them, was held, would result in abatement only as regards the items in his possession and the suit could proceed against the other defendants with regard to the items in their possession. 27. Considering all the authorities on this point, the law which can be said to have been settled is that the Court has to find out whether the cause of action against each of the defendant was capable of being separated and test would not be as to whether a separate suit could have been filed against the defendant who has died, as canvassed by the learned Counsel for the applicants. Therefore, when there is a decree which is joint and indivisible against all the defendants and not against each of them separately, the appeal against such decree would abate wholly if some of them were to die and their legal representatives were not impleaded, because in that event if the appeal would be allowed as against the remaining respondents, there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. The reason is that the Court should not be called up to make two inconsistent decrees from the same cause of action and to avoid conflicting decrees, the Court would have no alternative but to dismiss the appeal. However, when such is not likely to happen, the Court would proceed to hear the suit or appeal on merits. 28. If all these principles are to be explained by giving an example nearer home, and with regard to the facts of the case at hand, the Original Application would have proceeded if the deceased defendant had executed only one Guarantee Deed in respect of only one facility and defendant No. 2 for other facilities. 28. If all these principles are to be explained by giving an example nearer home, and with regard to the facts of the case at hand, the Original Application would have proceeded if the deceased defendant had executed only one Guarantee Deed in respect of only one facility and defendant No. 2 for other facilities. If that be the case, no relief could have been granted in respect of that facility only, even as against the principal borrower, to avoid conflicting decisions arising out of the same cause of action, and the Court could have legitimately proceeded to consider the claims against other facilities for which the defendant No. 3 had not acted as surety for the reason that the facilities of which repayment was guaranteed by the defendant No. 2 could have been separated from the facilities, repayment of which guaranteed by defendant No. 3 and in the case the application as a whole would not have abated. However, unfortunately, such is not the case here. Here both the defendants have guaranteed repayment of each of the six facilities which are said to be outstanding and therefore it is not possible to separate the cause of action of one facility from that of the other. 29. The learned Counsel for the applicant Bank has also relied on the Judgment of Calcutta High Court in the case of (United Bank of India v. Modern Stores (India) Ltd.)10, 1988 Bank.J. 335(Cal.) : A.I.R. 1988 Calcutta 18, wherein it is held that in a suit against the principal debtor, if one of the surety dies during the pendency of the suit, the remaining sureties are not discharged by the reason of not bringing the legal heirs of the deceased defendant on record. As against this, the learned Advocate for the defendants has relied on the judgement of Karnataka High Court in T. Raju Setty v. Bank of Baroda, A.I.R. 1992 Karnataka High Court, wherein in the similar circumstance, it is held that if the suit against the principal debtor would abate, it would abate all together. 30. The ratios laid down in these authorities are diametrically opposite each other and both have persuasive value. Both cannot be in any case followed simultaneously and when both are cited, only one could be followed. I have gone through both these authorities. 30. The ratios laid down in these authorities are diametrically opposite each other and both have persuasive value. Both cannot be in any case followed simultaneously and when both are cited, only one could be followed. I have gone through both these authorities. Their Lordships of Karnataka High Court have taken into consideration 62 Supreme Court while coming to such conclusion whereas the Hon'ble Lordships of Calcutta High Court have not at all considered the said case. Under the circumstances, with the utmost regard to the Hon'ble Lordship of Calcutta High Court and with all humility at my command, I would prefer to rely on the judgement of Karnataka High Court. 31. I have given an anxious consideration to the fact as to whether the cause of action against the principal debtor and guarantor can be said to be different because the principal borrower's liability arises out of the Loan Agreement or from actually availing the amount whereas the liability of the guarantor arises out of the Guarantee Deed and therefore, although all the guarantors stand on similar footing whether it can be said that the principal debtor does not stand on the same footing and the causes of action against the principal borrower are different and distinct and hence, an order can be passed against the principal borrower and claim be dismissed against all guarantors? However, this was what precisely argued before Their Lordships of Karnataka High Court in T. Raju Setty case (supra). Their Lordships have reproduced the argument before them as follows: "The contention of the plaintiff is that the claim of the plaintiff holds goods against the defendant Nos. 2 3 in the absence of the defendant No. 1 inasmuch as under the terms of the surety bond, it is open to the plaintiff to proceed against the sureties only leaving aside the principal debtor or to proceed against the principal debtor leaving the sureties or to proceed against all of them together. The fact that the plaintiff has chosen to proceed against the principal debtor and the sureties together and has sought for the decree jointly and severally should not worsen its position merely because that the legal representatives of the principal debtor are not brought on record. The fact that the plaintiff has chosen to proceed against the principal debtor and the sureties together and has sought for the decree jointly and severally should not worsen its position merely because that the legal representatives of the principal debtor are not brought on record. It is submitted that though the claim is one and common to all the three defendants but the liability of the defendants arises on different facts, inasmuch as the liability of the defendant No. 1 arises out of the pronote and Hypothecation Deed executed by him and the loan advanced to him in consideration thereto, whereas the liability of the defendant Nos. 2 3 arises out of the surety bond executed by them. Therefore, it is open to the plaintiff to proceed against the defendant Nos. 2 3 alone leaving the defendant No. 1. Hence, it is submitted that the fact that the suit is dismissed as abated as against the defendant No. 1 should not make any difference and should not lead to any conflicting decrees because in law the claim should be considered against the defendant No. 1, and the defendant Nos. 2 3 as separate and independent. On the contrary, it is contended on behalf of the defendant No. 3-Appellant that when the subject matter of the suit is one and the same against all the three defendants, the fact that the defendant Nos. 2 3 are liable under the surety bond should not make any difference inasmuch as the proceeding being one and the same and the decree is sought against all the three defendants jointly and severally. In such a suit if it abates against the principal debtor, the plaintiff would not be entitled to seek a decree against the defendant Nos. 3 as the suit abates as whole inasmuch as there cannot be conflicting decrees in one and the same proceeding. Both the sides have placed reliance on several decision. We now proceed to consider them." 32. 3 as the suit abates as whole inasmuch as there cannot be conflicting decrees in one and the same proceeding. Both the sides have placed reliance on several decision. We now proceed to consider them." 32. Thereafter, Their Lordships have considered 62 Supreme Court 66 Supreme Court as also other cases cited before them extensively and have ultimately held that the subject-matter of the suit being one and the same, although the principal borrower and guarantors are liable under different grounds, all of them are liable to only one claim, namely, debt advanced to the principal borrower and a suit in which the decree against all the three defendants is sought jointly and severally and reliefs sought is only one and common to all, it would not be open for the plaintiff to make independent claim against the sureties under the Surety Bond as in the same proceedings there would be conflicting decrees one dismissing the claim of the plaintiff in respect of the very subject matter as against the Defendant No. 1 and decreeing the same claim against the Defendant Nos. 2 3. The proceeding being the one, the Court in the same proceeding in respect of the same subject matter cannot pass two conflicting decrees. 33. In the result, I hold that the cause of action against each of the defendant in the present case is not capable of being separated and therefore, it would not be possible to pass a conflicting and contradictory decree against the Defendant Nos. 1 2 once the application stands dismissed by way of abatement as against the Defendant No. 3. 34. Before parting with this point, it is necessary to mention that it was ultimately argued on behalf of the Applicant Bank that it has been made clear in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 itself that the Tribunal is not bound by the provision of Civil Procedure Code (C.P.C.). Order 22, Rule 4 of C.P.C. has therefore no application whatsoever and the Original Application cannot be adversely affected if the bank has not followed the provisions of Order 22 of C.P.C. 35. With due respect to the learned Counsel for the Applicant Bank, although the Tribunal is not bound by the provisions of C.P.C. in certain matters, it is very much guided by the Code while regulating the procedure. With due respect to the learned Counsel for the Applicant Bank, although the Tribunal is not bound by the provisions of C.P.C. in certain matters, it is very much guided by the Code while regulating the procedure. The time of death may be extremely uncertain, yet the death is the most and only certain event and whenever anyone dies during the pendency of the suit/application, it follows that his legal heirs are required to be brought on record. Even before this Tribunal in almost every case when the defendant dies his legal heirs are brought on record and as and when such occasion arises, the Tribunal is guided by Order 22 of C.P.C. and it would not be correct to say that the Applicant Bank is not required to follow Order 22, or to bring the legal heirs of the deceased on record. If that be so, the Applicant Bank would be subject to all the provisions of Order 22 and the consequences for non-compliance thereof. 36. Moreover, the issue as to whether Order 22, Rule 4 of C.P.C. applies to the Tribunal is no longer res integra. In the (United Bank of India v. Gulam Hossian Halder)11, A.I.R. 1997 Calcutta 359, it has been very specifically stated by the Hon'ble Calcutta High Court that in the event of death of the party proceeded against during the pendency of applications before the Tribunal, the Tribunal should adhere to relevant provisions of Order 22 of C.P.C. for the reason that whenever justice is to be meted out by an adjudicating forum, it must dispense justice in accordance with procedure. It has been very specifically observed by His Lordship that the adjudicating forum cannot be allowed to embark into a journey of demonstration of whims and anarchy. For that the entire process is required to be modulated and guided by the procedure in civil adjudication in whatsoever nature. 37. To sum up, the Applicant Bank cannot escape the application of Order 22, Rule 4 of C.P.C. and is bound to suffer the consequences of not following the same. Point No. 2 : 38. In the light of my finding on Point No. 1, it is not necessary to enter into futile exercise of working out the exact dues against the defendant Nos. 1 2. Point No. 2 : 38. In the light of my finding on Point No. 1, it is not necessary to enter into futile exercise of working out the exact dues against the defendant Nos. 1 2. It must however, be mentioned that the Applicant Bank has in fact not been able to substantiae the claim of interest. 39. In (Central Bank of India v. Ravindra others)12, J.T. 2001(9) S.C. 101, the Hon'ble Apex Court has specifically directed the banks that they should file Statement of Accounts showing details and giving particulars of debit entries and if the debt entries relate to interest, then setting out the rate of and the period for which the interest has been charged. In the instant case, as stated above, the Applicant Bank has charged and claimed different rates of interest for different facilities ranging from 17% p.a. to 19.50 % p.a., whereas Demand Promissory Note or other documents do not mention such rates. It was therefore incumbent upon the Applicant Bank to state, more so when there is mandate from the Supreme Court, as to on what basis and from which date they effected the change in the rates of interest and for what period. In the absence of such details, it would indeed be difficult to accept the claim of the Applicant bank in respect of the total outstandings which include the interest. 40. It may also not be out of place to mention here that in the affidavit Exh. 67, alongwith which Statements of Account are filed, it is mentioned that no penal interest is charged, whereas in the Statement of Accounts, Exh. 68, there is a debit entry dated 21-5-1987 for the penal interest of Rs. 12,968.90. The learned Advocate for the defendants vehemently argued that on the face of such entry, making a statement in the affidavit that penal interest is not charged, amounts to perjury. 41. I am prepared to believe that the statement in the affidavit is not made intentionally and it is not necessary to take any action, however, it certainly shows the recklessness and the casual manner in which the affidavit is filed. It is expected that the banks would understand the seriousness of making statements on oath and would be careful about the same. 42. It is expected that the banks would understand the seriousness of making statements on oath and would be careful about the same. 42. It was also argued on behalf of the defendants that since inspite of repeatedly being reminded about the banks responsibility to provide all the details of calculating the interest as directed by the Hon'ble Supreme Court in Ravindra's case, the bank had failed in providing such details and therefore, the entire application was liable to be dismissed. 43. I do not want to dilate anything more on this point for the reason that the original application is even otherwise going to be dismissed in the result of my finding on Point No. 1, and leave the applicant bank for some introspection on this point. Point No. 3 : 44. As regards the point of limitation, I have already held that I am not prepared to believe that the defendants had not executed the Balance Confirmation Letters which are produced at Exhs. 54 to 63. It has been very specifically stated in those Balance Confirmation Letters that those were being executed for the purpose of section 18 of the Limitation Act. 45. In (Govindram v. Chetumal)13, A.I.R. 1970 Bombay 251, it has been pointed out by Their Lordships of Bombay High Court that the acknowledgement under Limitation Act and Stamp Act are different. If the acknowledgement is not under Article-1 of Schedule-1 of the Stamp Act, but is otherwise an acknowledgement for saving Limitation, the insufficiency or want of stamp on it is irrelevant and the document would be admissible for proving the acknowledgement. The said judgment has been cited with approval in C.P.C. (Hastimal Co. v. S. Venkatswamy)14, A.I.R. 1972 Andhra Pradesh 282. 46. In view of the law laid down on this point, it would not be possible to hold that the Letters of Acknowledgement produced by the Applicant Bank are inadmissible in evidence for want of sufficient stamps. It would therefore, follow that those could be read in evidence and would bring the Original Application within time. 47. In the light of my finding on Point No. 1, this however, remains merely an academic discussion and would not change the ultimate fate of the Original Application. Hence, I proceed to pass the following Order. ORDER 1. The Original Application is dismissed. 2. Parties to bear their own costs. Application dismissed. -----