JUDGMENT J.M. MALIK, CHAIRPERSON.-This appeal has been preferred against the judgment dated 16th March, 2005 pronounced by the D.R.T., Lucknow, wherein the respondent-bank was found entitled for issuance of recovery certificate to the tune of Rs. 47,67,628/- as on 15th July, 2001 together with pendente lite and future interest @ 17.75% per annum with quarterly rest on term loan and open cash credit facility and pendente lite and future interest @ 18.75% per annum, with quarterly rest in respect of temporary overdraft facility on and from 16th July, 2001 till full realization is made from the appellants/ defendants. Although the instant appeal has been filed by four above said appellants/defendants, yet, the arguments were mainly advanced for and on behalf of Smt. Manorma Jaiswal, who has been arrayed as appellant No. 4 in this appeal. 2. I have heard the Counsel for both the parties and have perused the written submissions filed on behalf of the appellants. The principal argument urged the Counsel for the appellants was that appellant No.4 is not the guarantor of the main borrower, Black Ocean Chem India Pvt. Ltd. The attention of the Court was invited towards page No. 7 of the original application, where there is a specific pleading on behalf of the bank at para C that the defendant Nos. 2 to 6 stood as guarantors. The mention of the name of the appellant No.4 is conspicuous by its absence. The respondent-bank has proved on record Ext. Nos. A-11 to A-16, which are the guarantee agreements, but the same do not pertain to the appellant No. 4-Smt. Manorama Jaiswal. It was, however, submitted that Smt. Manorama Jaiswal executed a "draft deed of declarationcum-indemnity". The relevant extracts of the above said deed are reproduced as follows: "............ The respondent-bank has proved on record Ext. Nos. A-11 to A-16, which are the guarantee agreements, but the same do not pertain to the appellant No. 4-Smt. Manorama Jaiswal. It was, however, submitted that Smt. Manorama Jaiswal executed a "draft deed of declarationcum-indemnity". The relevant extracts of the above said deed are reproduced as follows: "............ Whereas the indemnifier is owning the immovable property Rano Pali, Darshan Nagar, Haweli, Faizabad (full address of the property to be given) below and hereinafter called the scheduled property; and Whereas the said scheduled property or any portion thereof is not affected by the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the entire extent of the above property and other properties belonging to the indemnifier is within the ceiling limit permitted under the above said Act ; and Whereas the said urban property is now offered as security to the indemnified for the financial assistance availed/to be availed by the indemnifier and the indemnified has agreed to take the said scheduled property as security for the above said purposes. Whereas the indemnifier declared that the total extent of the property held by him and his wife and his minor children does not exceed the ceiling limit permitted under the Act, and Whereas the indemnifier has declared the excess land held by himself and his wife and his minor children in excess of ceiling limit by filing the return in the prescribed form with the Urban Land Commissioner and therefore the indemnified is entitled to hold the scheduled property as security as per the Act. Now this deed witnesses that in pursuance of the aforesaid agreement and in consideration of the bank having g anted/has considered to grant financial assistance to the indemnifier, indemnifier hereby agrees that the indemnifier will at all times keep indemnified and harmless the indemnified from all claims, demands made and all actions, proceedings taken against the indemnified if the scheduled property is found in excess of the ceiling limit prescribed and therefore the security created on the said property for the advance made/to be made is taken over by any Government or is likely to be lost or jeopardized as a security for the above said advance by the indemnified." 3. The said deed is also accompanied by an affidavit filed by Smt. Manorama Jaiswal dated 26th August, 1997. The said deed is also accompanied by an affidavit filed by Smt. Manorama Jaiswal dated 26th August, 1997. Counsel for the appellant argued that the said appellant is liable only for "term loan facility (i.e., for the fixed period) and not for O.C.C. (Open Cash Credit facility). The Counsel for the appellant vehemently argued that the learned Presiding Officer, D.R.T., has committed flagrant mistake in fastening the entire liability upon the appellant. In this context, he has drawn my attention towards page No. 92 of the original application. The said letter was issued by the Canara Bank, wherein the following credit limits were sanctioned/renewed: "Credit limits sanctioned/renewed : The following credit limits are sanctioned to the above party subject to compliance of all the terms and conditions as laid down in the annexure enclosed hereto. This sanction memorandum contains 7 pages including the annexures : Nature of Loan Limits Sanctioned (Fund based O. C. C. Rs. 20 lacs T.L. Rs. 20 lacs Margin rate of interest and the terms and conditions, etc. are furnished in the annexure/ s." Page 93 also mentions- "Guarantee: Personal guarantee of the following persons to be obtained : Name Net worth 1. Shri Rajeshwar Dayal, Director Rs. 107 lacs 2. Mohd. Hasan Asgar Khan, Director Rs. 25 lacs 3. Shri Alkesh Jaiswal, Director Rs. 11 lacs 4. Shri Shyam Karan Verma, Director Rs. 22 lacs 5. Shri Rakesh Jaiswal, Director Rs. 30 lacs 4. Counsel for the appellants contended that amount pertaining "term loan" goes upto the extent of Rs. 11.49 lacs as is apparent from the statement of accounts filed by the bank at page 234 submitted with the original application. The above said entry is reproduced as follows: Date Particular Withdrawals Balance "15.10.1997 To loan 6,55,421/- 11,49,000/-" 5. The next submission made by the learned Counsel for the appellant was that the overdraft facility and O.C.C. facility are not covered by the above said indemnity bond because the appellant No.4 was not a party to any other agreement. In this context he has drawn my attention towards section 133 of the Indian Contract Act, which is reproduced as follows: "Any variance made without the surety's consent in term of contract between the principal debtor and the creditor, discharges the surety as the transactions subsequent to the variance." 6. In this context he has drawn my attention towards section 133 of the Indian Contract Act, which is reproduced as follows: "Any variance made without the surety's consent in term of contract between the principal debtor and the creditor, discharges the surety as the transactions subsequent to the variance." 6. The bank filed statement of accounts at pages 237 to 241 with the original application with Overdraft Account (O.D.) of the original borrower started with a debt entry of Rs. 25,34,673.89ps. and on 28th February, 2001 a sum of Rs. 23,74,869.89ps. is shown as debit and balance outstanding is shown to be nil as on 28th February, 2001. Thereafter a new O.C.C. with a balance of Rs. 23,74,689.89ps. started and a manual statement of accounts was prepared and alleged due of O.D. account was illegally transferred to O.C.C. and the respondent wants to recover the same from the appellant No.4. This was argued with vehemence that the above said action on part of the bank is entirely illegal. 7. It was next argued on behalf of the appellant No.4 that although, legal notice was served upon the remaining appellants, yet, no notice was issued to the appellant No.4. It was also brought to the notice of the Court that a copy of the notice without proof of its' service was placed on the record. However, the learned Counsel for the appellants could not show any provision of law which makes the service of legal notice in case like this essential. 8. It was further submitted by the Counsel for the appellant that the bank authority and the principal borrower are working cheek by jowl and that is why the bank had not initiated any action against them. 9. In order to embolden his case Counsel for the appellant has cited few authorities. In Aditya Narain Chauresia v. State Bank of India, 1 1. AIR 2000 Pat. 222 . the guarantors bound themselves to a particular maximum limit of the principal debt. It was held that liability would be limited to that amount and not beyond. 10. In Naib Singh v. Bank of India, 2 2. 1995 (1) BCLR 415. appellants stood guarantees for the respondents an coming to know that the respondents had hypothecated the valuables with the bank, which were lost. It was held that liability would be limited to that amount and not beyond. 10. In Naib Singh v. Bank of India, 2 2. 1995 (1) BCLR 415. appellants stood guarantees for the respondents an coming to know that the respondents had hypothecated the valuables with the bank, which were lost. it was held that it was obligatory on part of the bank to watch and protect it, and due to inaction on bank's part, the surety stood discharged of his liability. 11. Again in Union Bank of India v. Suresh Bhai Lat Mehta, 3 3. AIR 1997 Guj 48 . security in the form of hypothecated goods which were lost on account of negligence of the plaintiff bank and were not in existence at the time of suit as alleged by the guarantor. The statement filed by the bank was not challenged. It was held that the suit against guarantor was liable to be dismissed. 12. Learned Counsel for the appellant has invited my attention towards Mohan fatia v. Indian Bank, 4 4. AIR 2004 Cal 326 and AIR 1977 Karnt. 204. which lay down that the liability of surety should not exceed the extent as provided in section 133 of the Indian Contract Act. 13. Counsel for the appellant lastly submitted that draft deed declaration-cum-indemnity already discussed above was not proved in accordance with law. He opined that the said document does not stand proved by merely placing it on record. He has placed reliance on cases in Rajwati Devi v. The foint Director, Consolidation, Government of Bihar, Patna, 5 5. AIR 1989 Pat. 66 . Kalyan Singh v. Chhoti, 6 6. AIR 1990 SC 396 . Om Prakash Berlia v. Unit Trust' of India, 7 Government of Andhra Pradesh v. Karri Chinna Venkata Reddy. 8 7. AIR 1983 Bom 1 . 8 AIR 1994 SC 591 . 14. All these arguments have left no Impression upon the Court. As a matter of fact the Counsel for the appellant has cited far fetched cases/authorities which hardly go to ring the bell. I find considerable force in the argument urged by the Counsel for the respondent's bank that the Counsel for the appellant has tried to set up a new defence and there is a catch in his arguments because he has made a vain attempt to suppress the material facts and mislead the Court. I find considerable force in the argument urged by the Counsel for the respondent's bank that the Counsel for the appellant has tried to set up a new defence and there is a catch in his arguments because he has made a vain attempt to suppress the material facts and mislead the Court. To top it all, he has not read para No. C of bank's original application fully, which appears at page 7 as well as page No.6 filed before the D.R.T. At the foot of page-6 it is specifically, clearly and' unequivocally stated : "................Defendant No. 7-Smt. Manorama Jaiswal has created an equitable mortgage of her property as collateral security for repayment of loan advanced by the applicant to defendant No.7................" 15. Apart from the above said 'draft deed declaration-cum-indemnity' deed, there is another document on the record, which was not discussed by the Counsel for the appellants, for the reasons best known to him. The bank has produced Annexure-5, which was executed by Smt. Manorama Jaiswal appellant No.4 with the subject: "Sub: The total limits of Rs. 40,00,000/- (Forty lacs. Apart from the above said 'draft deed declaration-cum-indemnity' deed, there is another document on the record, which was not discussed by the Counsel for the appellants, for the reasons best known to him. The bank has produced Annexure-5, which was executed by Smt. Manorama Jaiswal appellant No.4 with the subject: "Sub: The total limits of Rs. 40,00,000/- (Forty lacs. only) sanctioned to me/is and/or to Black Ocean Chem India (P) Ltd. By way of O.C.C. and term loan at Sapru Marg, Lucknow (Advancing Branch)." (Emphasis supplied) Last portion of this document at page 92 runs as follows: "I have already deposited with you/your Sapru Marg, Lucknow Branch (notified branch) on 15th May, 1997 (date of deposit) the title deeds relating to my/our properties situated at......(not legible) and as described in the Schedule 'A' herewith attached with intent to create security by way of equitable mortgage by deposit of title deeds within the meaning of section 58 (f) of the Transfer of Property Act, 1882 in favour of Canara Bank in respect of properties fully described in the Schedule 'B' herewith attached on the said properties together with all structures and machinery items standing installed thereon and other structures and machinery items to be put up in future to secure the said facility lies due and owing by me/ us and/or by Black Ocean Chem India Pvt. Ltd. To you/your Sapru Marg, Lucknow branch and/or any liability inclusive of renewals thereof from time to time together with interest thereon and/ or any other moneys in any other account standing in my/our individual account or jointly with any other or others that may become due and payable from time to time by me/us and or Black Ocean Chem india (P) Ltd. to you/your Sapru Marg branch and/or any liability arising out of the aforesaid facility lies granted and undertaken by you/your Sapru Marg, Lucknow branch in that behalf and payable by me/us and/or by Black Ocean Chem India Pvt. Ltd. to you/your Sapru Marg branch as also such other and further liability up to a sum of Rs. 75,00,000/- (Rupees seventy-five lacks only) only (maximum limit) as may be advanced to me/us and or to Black Ocean Chem India Pvt. Ltd. in future by you/ your branch." 16. This document is of infinite importance and puts the case of the respondent-bank in an impregnable position. 75,00,000/- (Rupees seventy-five lacks only) only (maximum limit) as may be advanced to me/us and or to Black Ocean Chem India Pvt. Ltd. in future by you/ your branch." 16. This document is of infinite importance and puts the case of the respondent-bank in an impregnable position. The duty of the Court is to win now truth from the falsehood. This document is not to be swept under the carpet. 17. Counsel for the appellants did not pick up a conflict regarding the total liability of all the appellants to pay the amount in dispute. He, however, argued that the statement of accounts bearing at page Nos. 2, 3 and 4 did not mention the accounts of O.C.C. He also argued that accounts of O.C.C. shown at page 242 cannot be said to be a proper statement of accounts. 18. All these arguments carry no conviction. When there is no dispute about the liability of all the appellants to pay the entire amount in dispute, the mere non-mention of one of the accounts in the statement of accounts, earlier issued by the respondent-bank, pales into insignificance. 19. Counsel for the respondent stated at bar that they are leaving no stone unturned in getting recovery of the loan in dispute. He explained that property belonging to main borrower worth for Rs. 16 lacs and the property belonging to appellant No.4 worth Rs. 39 lacs had already been auctioned. The Counsel for the appellants did not make an attempt to refute this contention. Learned Counsel for the respondent submitted that action is being taken against the main borrower as well. 20. It is thus clear that the proper liability has been fastened upon the appellant No.4. She had stood surety for a sum of Rs. 40 lacs and Rs. 75 lacs including the interest amount vide the above said documents respectively. It can• not be said that the learned D.R.T. has exceeded his powers 21. Counsel for the appellants conceded at bar that the above said two documents i.e., draft deed declaration-cum-indemnity and Annexure-S bear the signatures of Smt. Manorama Jaiswal. There is no allegation that her signatures were forged. There is no dispute regarding her signing the documents with open eyes. This is well settled law that admission of a fact requires no further proof. It appears that Counsel for. There is no allegation that her signatures were forged. There is no dispute regarding her signing the documents with open eyes. This is well settled law that admission of a fact requires no further proof. It appears that Counsel for. the appellant has in vain tried to set up a new defence. This plea cannot be said to be a defence pristine origin. It is difficult to fathom as to how the appellant No.4 can now wriggle out of the said liability. The Court has to pin no value to such like afterthoughts. 22. After having analyzing the pros and cons of this case, I am unable to take a view different from the one taken by the learned D.R.T. is fastening liability upon the appellant. The appeal being without merits is hereby dismissed. Copies of this judgment be given to the parties as per law. A copy of this judgment and the record be sent to the learned D.R.T. forthwith. Appeal Dismissed.