Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 778 (GUJ)

Vithalbhai P. Amin v. Bank of Baroda

2011-11-21

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2011
Judgment Bhaskar Bhattacharya, ACJ.—This First Appeal is at the instance of defendant Nos. 2 and 3 in a suit for recovery of money and is directed against the judgment and decree dated 25th July 1991 passed by Civil Judge, Senior Division, Bhuj, District Kachchh in Special Civil Suit No. 19 of 1986 thereby passing a decree for recovering money, with a further declaration that all the three defendants are jointly and severally liable to pay the decretal dues. The plaintiff Bank was also granted a further decree for interest at the rate of 17.5% on the decretal amount. 2. Being dissatisfied, the defendant Nos. 2 and 3 have come up with the present First Appeal. 3. In the suit, the defendant No. 1 was described as a Company incorporated under the Companies Act, 1956 and the defendant Nos. 2 and 3 were impleaded in their personal capacity as guarantors for grant of loan by the plaintiff in favour of the defendant No. 1. 4. According to the plaintiff-Bank, the loan was advanced in favour of the defendant No. 1 and for the said loan transaction, the defendant Nos. 2 and 3, who were the Directors of the defendant No.1-Company and were related as father and son respectively stood as guarantors by executing deeds of guarantee. 5. The plaintiff alleged that as the defendant No. 1 failed to repay the loan, the suit was filed and consequently, all the defendants were jointly and severally liable to pay the amount with interest. 6. Defendant No.1, the borrower, did not contest the suit and it was the defendant Nos. 2 and 3 who filed joint written statement thereby denying their liability to pay the amount. In the written statement, they denied even the execution of the deeds of guarantee and according to them, the claim was not entertainable. 7. At the time of hearing of the suit, the Branch Manager of the plaintiff-Bank proved the claim against the defendants whereas the defendant No. 3 alone entered in the witness-box thereby controverting the evidence adduced on behalf of the plaintiff-Bank. His father, the defendant No. 2, although filed joint written statement, did not come forward in the witness box to face the cross-examination at the instance of the plaintiff. 8. It appears from the record that at the time of giving deposition, the defendant No. 3 admitted the signature of the defendant Nos. His father, the defendant No. 2, although filed joint written statement, did not come forward in the witness box to face the cross-examination at the instance of the plaintiff. 8. It appears from the record that at the time of giving deposition, the defendant No. 3 admitted the signature of the defendant Nos. 2 and 3 on the deeds of guarantee but contended that those were executed not as Directors of defendant No. 1 Company but in their personal capacity. 9. The learned trial Judge, on consideration of the material on record, came to the conclusion that the plaintiff had proved advancement of loan in favour of the defendant No. 1 and from the exhibited documents, it was well established that the amount claimed by the plaintiff was proved. The learned trial Judge further held that the defendant Nos. 2 and 3 were the Directors of the defendant No. 1 at the relevant point of time and they executed the deeds of guarantee on behalf of the defendant No. 1 in their personal capacity. Consequently, the learned trial Judge decreed the suit as indicated earlier. 10. Being dissatisfied, the defendant Nos. 2 and 3 have preferred the present appeal. 11. Mr. Patel, the learned advocate appearing on behalf of the appellants tried to convince us that the deeds of guarantee having been executed by his clients in their personal capacity and not as the Directors of the Company, no decree could be passed against them, and as such, the impugned decree passed by the trial Judge should be set aside. He has also tried to impress upon us that the suit itself was barred by limitation. 12. After hearing the learned counsel for the parties and after going through the material on record, we are of the view that both the points advanced by Mr. Patel are bereft of any substance. 13. It appears from the averments made in the plaint that defendant Nos. 2 and 3 were impleaded in their personal capacity and not as the Directors of the defendant No.1. The moment it has been established from evidence on record that money was due and payable by the defendant No.1 and deeds of guarantee were executed by the defendant Nos. It appears from the averments made in the plaint that defendant Nos. 2 and 3 were impleaded in their personal capacity and not as the Directors of the defendant No.1. The moment it has been established from evidence on record that money was due and payable by the defendant No.1 and deeds of guarantee were executed by the defendant Nos. 2 and 3, the learned trial Judge did not commit any illegality in passing the decree by making both the borrower and the guarantors jointly and severally liable to pay the unpaid debt. We have already pointed out that the defendant Nos. 2 and 3 have been impleaded in their personal capacity and the defendant No. 2 having admitted that deeds of guarantee were executed in their personal capacity, there was no legal bar in granting the decree against them in such a capacity. 14. As regards the plea of limitation advanced by Mr. Patel, it appears that various exhibits, particularly Exhibits No. 9, 27, 61 to 63 and 88 to 90, bear the signatures of defendant Nos. 2 and 3. The amount of loan having been admitted by various documents by the defendant Nos. 2 and 3 within three years from the date of institution of the suit, the plea of limitation is not tenable on the face of the records. 15. We thus find no merits in this appeal and consequently, the same is dismissed. In the facts and circumstances of the case, there will be, however, no order as to costs. P P P P P