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2004 DIGILAW 951 (MP)

Ramesh Chandra v. State Bank of Indore

2004-11-29

P.K.JAISWAL

body2004
JUDGMENT Heard on the question of admission. This revision is filed by the defendant No.2-Guarantor against the judgment and decree dated 11.1.1999 passed by Third Additional District Judge Vidisha (Camp Basoda) in Civil Appeal No. 46-B/98, whereby judgment and decree dated 10.1.1998 passed by the II Civil Judge Class II. Ganjbasoda has been confirmed. The facts of the case are in brief that the plaintiff-respondent No. 1 filed a suit for realization of Rs. 11,019.66 against the defendants. The respondent No.2-defendant No.1 Bhagwandas was granted cash credit facilities to the tune of Rs. 5,000/-. The petitioner-defendant No.2 and respondent No. 2 executed demand promissory note Ex. P-3 dated 10.2.1981. The defendant No.2 executed Guarantee Bond Ex. P-4 (Forum-I). The defendants failed to repay the amount and hence Civil Suit was filed for recovery of Rs. 11,019.66. The defendant NO.2-Guarantor filed written statement and denied the liability on the ground that revival letters Ex. P-6 and Ex. P-7 are not signed by him and as such suit be liable to be dismissed against him. The trial Court after recording the evidence of the parties found defendant No.1 and 2 jointly liable to repay the loan amount and as per Ex. P-4 guarantee of the defendant No.2 is continuing and he cannot be exonerated under the Contract Act and decreed the suit on 10.1.1998. The trial Court further held that suit is not barred by prescribed period of limitation. The petitioner challenged the judgment and decree of trial Court by filing an appeal before the lower appellate Court. The Lower appellate Court after appreciating the evidence of the parties upheld the finding of the trial Court and dismissed the appeal of the appellant holding that as per terms and conditions of Guarantee deed (Ex. P-4) the revival letters Ex. P-6 dated 23.12.1986 and Ex. P-7 dated 5.1.1984 are binding on the guarantor. The learned counsel for the petitioner in this revision urged that suit is barred by limitation on the ground that he executed the guarantee vide Ex. P-4 on 10.12.1981. Whereas the suit was filed on 29.4.1988. The Courts below erred in holding that on the basis of revival letters Ex. P-6 and Ex. P-7 the suit is within limitation against him. The learned counsel for the petitioner further held that revival letter is not signed by him and as such suit ought to have been dismissed against him. Whereas the suit was filed on 29.4.1988. The Courts below erred in holding that on the basis of revival letters Ex. P-6 and Ex. P-7 the suit is within limitation against him. The learned counsel for the petitioner further held that revival letter is not signed by him and as such suit ought to have been dismissed against him. The learned counsel further urged that liability of the petitioner comes to an end by variance in terms of the contract the revival letters Ex. P-6 and P-7 were executed by the defendant No. 1 which is nothing but variance of the terms of the contract and therefore surety is discharged form his liability being a fresh contract and relied upon the decision of this Court in the case of Oriental Bank of Commerce, Mandsaur v. M/s. Sandeep Printers, reported in 2004 (I) MPWN 38 . The learned counsel for the respondents urged that petitioner-defendant No.2 executed guarantee bond Ex. P-4 which is continuing guarantee. The learned counsel for respondent No.1 further urged that the petitioner is liable to pay the decretal amount and Courts below had not committed any illegality or material irregularity in decreeing the suit of the Bank. The learned counsel for the respondent No, 1 relied on a decision in the case of The Managing Director.(MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, reported in AIR 1973 SC 76 and urged that High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. I perused the record of the case and judgment of the Courts below. From perusal of Guarantee Bond (Ex. P-4) executed by the petitioner, it is continuing guarantee bond and Ex. P-6 and Ex. P-7 are not fresh agreements but are acknowledgments of debt and as such the liability of the petitioner-guarantor on the acknowledgment of debts by the respondent No.2 debtor continues and the guarantor is not discharged. The facts on the decision cited by the petitioner in the case of Oriental Bank of Commerce (supra) is quiet different and same will not applicable in this case. In view of the above the finding recorded by the Courts below is a finding of fact and there is no illegality or material irregularity committed by the Courts below. The facts on the decision cited by the petitioner in the case of Oriental Bank of Commerce (supra) is quiet different and same will not applicable in this case. In view of the above the finding recorded by the Courts below is a finding of fact and there is no illegality or material irregularity committed by the Courts below. The revision has no merit and is accordingly dismissed summarily with cost.