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2010 DIGILAW 702 (HP)

PUNJAB v. DHARAM SINGH

2010-04-07

V.K.AHUJA

body2010
JUDGMENT V.K. Ahuja, J.(Oral)-This is Regular First Appeal filed by the appellant against the judgment and decree dated 24.5.1999 passed by the learned District Judge, Shimla, decreeing the suit of the appellant for recovery of a sum of Rs.4,29,637/- along with interest as against respondent No.1 only. 2. Being aggrieved by the said judgment and decree passed by the learned trial Court not granting relief as against respondents No.2 and 3, the present appeal has been preferred by the appellant. Notice was issued to the respondents. Briefly stated, the facts of the case are that plaintiff-Bank filed a suit for recovery of the amount alleging that defendant No.1 had taken a loan from the Bank and Kamal Singh, the predecessor- in-interest of defendants No.2 and defendant No.3 stood guarantors for repayment of loan. The suit was filed for recovery of the balance amount along with interest and costs. Defendants denied the allegations. On the pleadings of the parties, the following issues were settled by the learned trial Court: (1) Whether the agreement of loan between the plaintiff and the principal borrower had been innovated subsequently without the consent of defendant No.3? OPD-3. (2) Whether the claim against defendant No.3 is barred by limitation? OPD-3. (3) Whether the plaintiff is entitled to the suit amount? OPP. (4) Relief. 3. The parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiff was entitled to recover the amount from original borrower defendant No.1 and the suit was not decreed as against the guarantors since the loan in question had not been revalidated by them within the period of limitation. 4. I have heard the learned counsel for the parties and have also gone through the record. 5. The submission of the learned counsel for the appellant was that there is no dispute in regard to the findings of the learned trial Court under Issue No.2 that the claim was barred as against defendant No.3 since he had not re-validated the loan within the period of limitation and he does not challenge the finding of the learned trial Court regarding no relief granted as against defendant No.3. However, it was submitted by the learned counsel for the appellant that the loan was revalidated by defendant No.2 on 10.3.1986 by Shri Kamal Singh the predecessor-in-interest of defendant No.2 who was the second guarantor who furnished the guarantee on 10.3.1986 in place of defendant No.3. Thus, it was submitted that the relief should have been granted against defendant No.2 to recover the loan amount from him also in case the loan amount was not realized from defendant No.1. 6. A perusal of the evidence led by the plaintiff shows that the plaintiff had examined some witnesses. The statement of PW-2 Sheri S.K.Mahajan, Sr. Manager of the plaintiff-Bank does not show that fresh guarantee deed was executed at any point of time by Kamal Singh, the predecessor-in-interest of defendant No.2. A perusal of statement of PW-3 Kuljit Singh, Manager of the plaintiff-Bank shows that he has simply stated that documents were executed by the defendants in his presence. He proved the Document Ex.PPR being relied upon by the plaintiff-appellant. This document allegedly bears the signatures of Kamal Singh, the guarantor but not even a word has been stated by PW-3 that Kamal Singh had executed any fresh guarantee deed in his presence. No inference can be drawn from Ex.PRR relied upon by the plaintiff-appellant that it bears the signatures of defendant No.2 the second guarantor Kamal Singh at any point of time in his presence. From a perusal of the above evidence no conclusion can be drawn that fresh guarantee deed was signed by Kamal Singh at any point of time. Therefore, the finding of the learned trial Court decreeing the suit as against defendant No.1 only, does not call for interference by this Court. 7. In view of the fact that there was no evidence available as against defendants No.2 and 3 and decree was passed against the judgment of the learned trial Court declining the relief as against defendants No.2 and 3, I am of the opinion that the appeal deserves to be dismissed along with costs, which is dismissed along with costs accordingly. Counsel’s fee assessed at Rs.3,000/-payable by appellants to contesting defendant No.3.