Judgment :- R. SUBBIAH, J. Aggrieved over the dismissal of suit (dated 14.02.2006) as against the guarantors i.e. defendants 2 to 4 passed by the learned Additional District and Sessions Judge, Fast Track Court, Vellore in O.S.No.48 of 2005, Bank has preferred this Appeal. 2. Appellant is the Indian Bank, Vellore Main Branch and respondents are defendants 1 to 4. For easy reference, parties are referred to as per their ranking in the original suit. 3. Brief facts of Plaintiff Bank are as follows: (a) Plaintiff bank filed the suit for recovery of Rs.6,05,486.45 from the defendants jointly and severally towards the secured over draft facility together with future interest at 20.25% with quarterly rests, and in failure of the same, sale of schedule mentioned properties may be passed. (b) Case of plaintiff bank is that D1 was doing wholesale business in purchase and sale of beedi leaves. On 08.02.1990, D1 borrowed Rs.2,00,000/-as secured over draft facility from the bank for his business and executed a Pronote on the same day agreeing to repay the same with interest at 15% per annum with quarterly rests. For the said loan, D2 to D4 executed two distinct guarantee deeds in favour of the bank. By executing the said guarantee deeds, liability of D2 to D4 is co-extensive with that of the principal borrower. Apart from the guarantee deeds, D3 and D4, on 03.05.1990 deposited all the title deeds to the bank with a intention to create an equitable mortgage over the properties belonging to them, as described in the plaint schedule and the same was confirmed by D3 and D4 in their letter dated 04.05.1990. (c) D2, in her personal capacity became indebted to the plaintiff a sum of Rs.75,000/-and executed necessary documents in favour of the plaintiff bank. For the due repayment of the said debt, she executed necessary document by creating a statutory and legal charge over the Ind Rathna Certificates held by her and offered as security. By executing the said document, D2 has become not only liable for her indebtedness but also became liable for the money due to the bank from all the defendants. For the due repayment of the said debt, she executed necessary document by creating a statutory and legal charge over the Ind Rathna Certificates held by her and offered as security. By executing the said document, D2 has become not only liable for her indebtedness but also became liable for the money due to the bank from all the defendants. (d) Apart from the above said over draft facility, on 02.02.1990, plaintiff bank executed a Performance Guarantee deed for Rs.2,35,000/-in favour of the Government of Orissa Forest Development Corporation, for and on behalf of D1 guaranteeing repayment of the money due from D1 in case of breach by D1 in consideration of executing the said guarantee deed and D1, in turn, had executed a counter guarantee deed on 21.01.1991 in favour of the plaintiff bank for Rs.2,45,000/-agreeing to repay the same with interest at 15% per annum. The Orissa Forest Development Corporation have not invoked the said performance guarantee in time and have invoked the said guarantee subsequent to the date of expiry and therefore, plaintiff bank did not pay the amount to the Orissa Forest Development Corporation, which is under correspondence. As per law, plaintiff is not liable to pay any money to the Orissa Forest Development Corporation and in case plaintiff is obliged to pay the said sum, the same will be realised from the defendants by filing a separate suit or even in this suit by filing necessary applications. Therefore, suit claim is not inclusive of the aforesaid sum of Rs.2,45,000/-and plaintiff bank is reserving its right to do so separately later. (e) Plaintiff came to know that beedi leaves purchased by D1 out of money paid by the plaintiff and insured with the United India Insurance Company were destroyed by floods and consequently there was loss. Defendants have not honoured their obligation and discharged the money due to the plaintiff. Though defendants received the legal notice dated 12.11.1992 sent by the plaintiff, they did not comply with the demand. Hence, the suit. 4. D1 filed a written statement denying the averments made in the plaint. Resisting the case of plaintiff bank, D2 filed a written statement that she had borrowed only a sum of Rs.75,000/- on the strength of Ind Rathna Certificate. Plaintiff had taken her signatures in blank printed forms. Hence, the suit. 4. D1 filed a written statement denying the averments made in the plaint. Resisting the case of plaintiff bank, D2 filed a written statement that she had borrowed only a sum of Rs.75,000/- on the strength of Ind Rathna Certificate. Plaintiff had taken her signatures in blank printed forms. Though she had discharged the said debt, plaintiff had retained the aforesaid forms and had made use of one of them for creating the alleged guarantee deed dated 08.02.1990. She had not executed any guarantee deed. Thus, she prayed for the dismissal of the suit. 5. D4 filed a written statement, adopted by D3, contending that he has not executed any guarantee deed for the loan advanced to D1 by the plaintiff bank. Actually, plaintiff bank had taken the signatures of D3 and D4 in blank printed forms. They did not deposit the title deeds of the suit properties to create an equitable mortgage and they have not executed any deed in favour of the bank. 6. On the above pleadings, trial court framed the following issues for trial; (1) Whether the suit Pronote is not true and valid? (2) Whether D2 to D4 executed guarantee deeds on 08.02.1990 distinctly and is binding? (3) Whether suit is bad for mis-joinder of cause of action as claimed by D2? (4) Whether D4 had not deposited title deeds on 03.05.1990? (5) To what relief? 7. In order to prove the case, on the side of plaintiff bank, one Chandrasekaran, the Senior Manager of the plaintiff Bank and Dhandapani, the Manager of the plaintiff bank were examined as P.Ws.1 and 2 and 21 documents were marked as Exs.A-1 to A-21 and on the side of defendants, D3 and D2 were examined as D.Ws.1 and 2, but no documents were filed. Rejecting the case of plaintiff bank that D2 to D4 have executed guarantee Deeds Exs.A-2 and A-3 and holding that Ex.A-1 Pronote executed by D1 is true and valid, trial court decreed the suit against D1 for the principal sum of Rs.2,00,000/- with interest at 15% per annum from 08.02.1990, the date of Ex.A-1 Pronote with interest at 15% till 29.03.2002 and 6% interest from 30.03.2002 till realisation for the principal amount of Rs.94,053/-and dismissed the suit as against D2 to D4. Aggrieved over the same, plaintiff bank has filed the suit. 8. Aggrieved over the same, plaintiff bank has filed the suit. 8. Heard the learned counsel for both sides and perused the materials available on record. 9. The issue that has to be decided in this Appeal is, Whether the dismissal of the suit as against the guarantors, namely, D2 and D3 and D4 for the reason that the guarantee deeds Exs.A-3 and A-4 are fabricated documents by the bank is correct or not ? 10. By a perusal of the records, it is seen that D1, the principal borrower had availed secured over draft facility from the plaintiff bank to the extent of Rs.2,00,000/-and for which, he had also executed promissory note on 08.02.1990 Ex.A-1 agreeing to repay the same with interest at 15% per annum with quarterly rests. Since there was a default, the present suit has been filed only for recovery of the amount due under Pronote dated 08.02.1990. According to the bank, D3 and D4 stood as guarantors for due repayment of the said loan amount and they have executed aguarantee deed dated 08.02.1990 marked as Exs.A-3. Apart from that, D3 and D4 have also deposited title deeds to create equitable mortgage on 04.05.1990. Memorandum of deposit of title deeds by D3 and D4 was marked as Ex.A-4 and they confirmed the deposit of title deeds by a letter dated 04.05.1990, which was marked as Ex.A-5. So far as D2 is concerned, she had availed independently a sum of Rs.75,000/-as loan. For the due repayment of the said amount, she had also executed necessary documents in favour of the plaintiff bank creating a statutory and legal charge over the Ind Rathna Certificates held by her and offered the same as security. But subsequently she had repaid the loan amount of Rs.75,000/-. Since D2 is liable for money due to the bank from all the defendants in the suit, plaintiff had invoked the lien over the said Ind Rathna Certificate in respect of the loan availed by D1 also. Thus, there are three guarantee deeds one by D2 marked as Ex.A-2 and another by D3 and D4 dated 08.02.1990 marked as Ex.A-3 and Memorandum of deposit of Title Deeds executed by D3 and D4. These documents were rejected by the trial court stating that these documents were fabricated. 11. Thus, there are three guarantee deeds one by D2 marked as Ex.A-2 and another by D3 and D4 dated 08.02.1990 marked as Ex.A-3 and Memorandum of deposit of Title Deeds executed by D3 and D4. These documents were rejected by the trial court stating that these documents were fabricated. 11. Only reason assigned by the trial court for rejecting these documents is that plaintiff had executed a counter guarantee (performance guarantee deed) dated 21.01.1991 for a sum of Rs.2,45,000/- in respect of the guarantee executed by the bank for a sum of Rs.2,35,000/- dated 02.02.1990 in favour of Government of Orissa Forest Development Corporation for and on behalf of D1 guaranteeing due repayment of the money from D1 in case of breach of D1 in consideration of execution of performance guarantee in respect of beedi leaves purchased by D1 from Orissa. The amount of Rs.2,45,000/-mentioned in counter guarantee dated 21.01.1991, which was marked as Ex.A-7, finds a place in all the earlier documents, i.e. guarantee deeds executed by D2 and D3 and D4 and Memorandum of Deposit of Title deeds executed by D3 and D4, marked as Exs.A-2 to A-4. Therefore, the Trial Court has come to the conclusion that there is no possibility to mention the amount of Rs.2,45,000/-i.e.the amount found in Counter Guarantee dated 21.01.1991 in the earlier documents viz., Exs.A-2 to A-4 executed by D2 and D3 and D4 and as such, Exs.A-2 to A-4 cannot be believed and that the said documents should be created for the purpose of fastening liability on D2 to D4 as guarantee and thus, dismissed the suit against them. 12. But it is the submission of the learned counsel for the Plaintiff bank that even before execution of guarantee deeds by D2 to D4, Bank had executed a Performance Guarantee agreement in favour of Orissa Government for Rs.2,35,000/- on 02.02.1990 for and on behalf of D1 guaranteeing repayment of the money due from D1 in case of breach by D1. Only counter guarantee was obtained from D1 at a later point of time on 21.01.1991 in favour of the plaintiff bank for Rs.2,45,000/-in connection with the Performance Guarantee dated 02.02.1990. The amounts mentioned in the documents Exs.A-2 to A-4 are all pursuant to the guarantee deed executed by the bank in favour of Orissa Government. Only counter guarantee was obtained from D1 at a later point of time on 21.01.1991 in favour of the plaintiff bank for Rs.2,45,000/-in connection with the Performance Guarantee dated 02.02.1990. The amounts mentioned in the documents Exs.A-2 to A-4 are all pursuant to the guarantee deed executed by the bank in favour of Orissa Government. In fact, in paragraph 7 of the plaint, there is a clear reference about the performance guarantee. Under such circumstances, on erroneous appreciation of evidence, trial court has rejected Exs.A-2 to A-4. 13. Now, during the pendency of Appeal, plaintiff bank has filed M.P.No.1 of 2012 under Order 41 Rule 27 C.P.C to receive the Loan Sanction Letter issued to the defendants on 06.02.1990. Pursuant to the guarantee deed executed by them to the Orissa Government, plaintiff bank has filed Loan Sanction Letter by way of additional evidence. By Order dated 29.10.2012, M.P.No.1 of 2012 is allowed and the said document is marked as Ex.A-22. By a perusal of the said document, it is seen that even before execution of guarantee deeds by D2 to D4, plaintiff bank had executed a guarantee deed in favour of Orissa Government for due re-payment by D1 for Rs.2,35,000/-. Ex.A-22 clearly shows that two loans were sanctioned (i) overdraft facility to the tune of Rs.2,00,000/-, (ii) Performance guarantee Rs.2.45,00,000/-. These amounts were mentioned in all the subsequent documents also. Therefore, we are of the opinion that the finding of the trial court that Exs.A-2 to A-4 cannot be relied upon because they contained the amount mentioned in the guarantee deed executed on 21.01.1991 is not proper and correct. This counter guarantee was executed by D1 at a later point of time only in response to the guarantee executed by the bank in favour of Orissa Government on 02.02.1990 i.e. prior to the execution of guarantee deeds executed by D2 to D4. That apart, P.W.1 - Senior Manager of the plaintiff Bank categorically stated in his evidence about the performance guaratnee of Rs.2.45 lakhs and the offering of the guarantee by the plaintiff bank to the Orissa Government, which reads as follows: VERNACULAR (TAMIL) PORTION DELETED Under such circumstances, we are of the view, absolutely, there is no valid reason to have a suspicion over the guarantee executed by D2 to D4. 14. 14. Further more, no explanation was given by D3 and D4 as to how the original documents of suit properties came into the possession of the bank. If really the documents were not deposited by D3 and D4, they would have taken steps immediately as against the bank. But they have not done so. In fact, D.W.1 had also accepted in his cross examination that he has deposited title deeds for the loan borrowed by D1. The relevant portion reads as follows: VERNACULAR (TAMIL) PORTION DELETED In these circumstances, we are of the opinion that the trial court, on erroneous appreciation of facts and by misconstruing the amount of Rs.2,45,000/- mentioned in Exs.A-2 to A-4, came to the conclusion that Exs.A-2 to A-4 have to be the concocted documents. But, in fact, the amount mentioned in the above documents is pursuant to the guarantee executed by the bank as early as 02.02.1990. Therefore, we are of the opinion that the finding rendered by the trial court in favour of D2 to D4 is erroneous and is liable to be set aside and, accordingly, the same is set aside. In fine, Appeal is allowed and the judgment and decree (dated 27.04.2006) passed by the Trial Court - Additional District and Sessions Judge, Fast Track Court, Vellore in O.S.No.48 of 2005 is set aside so far as D2 to D4 are concerned. D2 to D4 are jointly and severally liable to pay the suit amount, as decreed by the Trial Court, with proportionate interest along with D1. There is no order as to costs. Consequently, M.P.No.2 of 2007 is closed.