JUDGMENT/ORDER : Kalyan Rai Surana, J. Heard Mr. SK Ghosh, learned counsel appearing for the appellant. None appears on call for the respondents although notice has been duly served on them. It is submitted at the bar that the respondent No.3 in this case, had already expired. 2. This appeal under section 96 of CPC is directed against the judgment and decree dated 27.08.2004 passed by the learned Additional District Judge (Ad-hoc), Hojai at Shankardev Nagar in Money Suit No.54/2000, by which the suit was decreed only against the respondent No.5 and the suit was dismissed against the respondents No.1 to 4. By virtue of this appeal, the appellant is praying for a decree to be passed, jointly and severally, against the respondents No.1, 2 and 4 also along with decree passed against the respondent No.5 by the learned trial court. 3. The summary of facts of the case is that the appellant is a licenced money lender doing business in the name of Hindustan Mortgage Institution, Lumding and had advanced a loan of Rs. 60 Lakh to the respondent No.5, which was requested in order to undertake a contract work with the Railway. In this regard, an agreement dated 16.11.1998 between the appellant and the respondents No.1 & 5, was signed. The respondents No.1 & 5 availed the loan at the rate of 21.75% per annum and the respondents No.1 to 4 (including the deceased respondent No.3, whose name has been striked out) stood as guarantors for payment of the same. Projecting that the respondent No.1 & 5 had failed to pay the loan, an Advocates Notice dated 30.07.2000 was served, demanding repayment of the whole loan amount. After the part-payment made by cheque dated 15.09.2000 was returned dishonoured, and no payment was received, the appellant had filed a suit for recovery of a sum of Rs. 86,79,315.70 with pendent lite interest @ 21.75% and cost. 4. The respondents including the respondent No.3 (since deceased) had filed their joint written statement, denying the plea that the appellant had valid money lending licence, further stating that Deed of Agreement dated 16.11.1998 was a forged and fraudulent one and the suit was barred under section 69 of the Partnership Act, 1932. The respondents No.1 & 5 denied of taking any loan from the appellant and also stated that the respondents No.3 (since deceased) and respondent No.4 had never stood as guarantors. The respondents No.1 & 5 denied of taking any loan from the appellant and also stated that the respondents No.3 (since deceased) and respondent No.4 had never stood as guarantors. 5. It was projected that the appellant as well as the respondent No.5 were engaged in same partnership business and their Partnership Firm having not been registered, the suit was barred. It was further alleged that during the tenure of the partnership business, the respondent No.5 had signed many papers, cheques and blank papers etc., and the loss suffered in the partnership business was put upon on the shoulder of the respondent No.5. It was stated that by concealing the existence of their partnership, the suit was filed by practicing fraud. 6. On the basis of the pleadings, following 5 issues and 1 additional issue were framed for trial: 1. Whether there is any cause of action for the suit? 2. Whether the plaintiff has got valid and effective Money Lending business? 3. Whether the Deed of Agreement dated 16/11/98 is forged and fraudulent one? 4. Whether the plaintiff is entitled to get a decree as prayed for? 5. What relief or reliefs are the parties entitled to? Additional issue:- 1. Whether the suit is barred by section 69 of the Indian Partnership Act? 7. In support of the plaint, the appellant examined two witnesses including her husband Sri Parimal Acharjee as PW.1, who was stated to be looking after the business by virtue of a power of attorney dated 19.12.1986. One Ari Arup Chowdhury was examined as PW.2. 8. In respect of additional issue No.1, the learned trial court recorded that the respondent No.5 herein (i.e. defendant No.1) did not turn up to adduce any evidence with regard to her averments. It was held that case was not instituted by the appellant as a partner or against any partnership firm or any partnership deed, rather, the case was instituted on the basis of promissory notes executed between the appellant and the respondent No.5. Hence, the suit was not held to be barred under Section 69 of the Act. 9. In respect of issue No.1, it was held that the appellant was having the Money Lending Licence (Ext.2) dated 09.04.1987. Hence, the suit was not held to be barred under Section 69 of the Act. 9. In respect of issue No.1, it was held that the appellant was having the Money Lending Licence (Ext.2) dated 09.04.1987. However, a contradictory finding was recorded as regards the borrower because at one part of finding on issue No.1, it is recorded that the respondent No.1 herein was the borrower, but on the other part, the respondents No.1 & 5 are held to be the borrowers. However, it was held that there was cause of action and issue No.1 was decided in the affirmative in favour of the appellant. 10. In respect of issue No.2, it was held that the appellant had a valid Money Lending Licence and by relying on the case of Upendranath Das v. Nirupama Bharalia, (2000) 3 GLR 223, it was held that the business of the appellant was a valid business and, as such, the issue No.2 was decided in the affirmative in favour of the appellant. 11. In respect of the issue No.3, again a contradictory finding has been recorded because at one place, the respondent No.1 was held to be a signatory and in another place, it was held that the respondent No.1 was stood as one of the guarantor. It was held that the agreement (Ext.27) was an agreement between the appellant and the respondent No.5 and therefore, by inserting a guarantee clause, the agreement may not be said to be an Agreement for Guarantee. Accordingly, it was held that the Deed of Agreement dated 16.11.1998 was valid only between the appellant and the respondent No.5 and that the other respondents cannot be bound as guarantors. Accordingly, the issue no.3 was decided in the affirmative. 12. On issue No.4, it was held that appellant was entitled to recover interest @12.5% per annum and it was ordered that the appellant was entitled to recover Rs. 60 Lakh from the respondent No.5 along with interest of 12.5% per annum from the date of institution of the suit till realization and the suit was decreed against the respondent No.5 with cost. The suit was dismissed in respect of other respondents. 13. A very short submission is made by the learned counsel for the appellant in respect of the Deed of Agreement dated 16.11.1998 (Ext.27). The suit was dismissed in respect of other respondents. 13. A very short submission is made by the learned counsel for the appellant in respect of the Deed of Agreement dated 16.11.1998 (Ext.27). It was submitted that the said agreement contained a specific clause of guarantee, which was binding on the guarantors i.e. the respondent No.1, 3 (since deceased) and respondent No.4. It is further submitted that as per the contents of the said agreement, the respondent No.1, who was the defendant No.2 in the suit was a co-borrower along with the respondent No.5. It is submitted that as the appellant was running a licenced and bonafide money lending business, which fact was also upheld by the learned trial court on his decision on issue No.2, the clause of guarantee contained in the said agreement, being not opposed to any law or public policy, or tainted by fraud or any illegality whatsoever, the same could not be ignored. Therefore, not only the clause of providing guarantee survives, but the surviving respondents No.1, 2 and 4 must also suffer the decree in the suit. 14. Owing to the nature of the submissions made by the learned counsel for the appellant, the following points of determination arise in this appeal:- i. Whether the clause providing for guarantee is binding upon the respondents No.2 and 4? ii. Whether the respondent No.1 was a counsel-borrower of loan from the appellant along with the respondent No.5? iii. To what reliefs the appellant is entitled to? 15. On a perusal of the LCR, it reveals that while the appellant/plaintiff examined two witnesses, the respondents No.2 & 3 (since deceased) had also examined themselves as DW.1 and DW.2 respectively. 16. For the purpose of decision on the points of determination, the issue-wise discussion and decision of the learned trial court on such issues are revisited again. In respect of issue No.1, it is seen that the appellant had made a claim for recovery of money on the basis of agreement dated 16.11.1998 (Ext.27), alleging that the loan taken by the respondents No.1 & 5 was not returned with the contractual interest and that as per the plaint, by issuing a notice under section 80 CPC, the Railway authorities were asked not to disburse any bills and to attach any bills of the respondent No.5. The loan was taken by way of an agreement i.e. Ext.27. The loan was taken by way of an agreement i.e. Ext.27. The promissory notes executed by the defendant No.1 (respondent No.5 herein) reflecting money taken were marked as Ext. Nos. 3 to 26 by which the respondent No.5 had been provided the loan of Rs. 60 Lakh. These exhibits are all written in the letter-pad of M/s. Abhishek Commercial, where the respondent No.5 is shown as proprietor. As the respondents have denied any transaction, there appears to be a cause of action in the suit. Hence the issue No.1 was rightly decided by the learned court below with a definite finding in para-17 of the judgment that the defendants No. 3, 4 & 5 (i.e. respondents No.2, 3 and 4) stood as guarantors for defendants No.1 & 2 i.e. respondents No. 1 and 5. In view of the said finding, the subsequent finding on the said issue that the defendants No.2, 3, 4 & 5 denied having stood as guarantors, is not found sustainable as the Deed of Agreement dated 16.11.1998 (Ext.27) clearly shows that the respondent No.1 & 5 were the borrowers and the respondents No.2, 3 (since deceased) and respondent No.4 had stood as guarantors. 17. In respect of issue No.2, the appellants had exhibited Money Lending Licence as Ext.2 and therefore, at the time of giving loan, the appellant had a valid Money Lending Licence. Hence, the issue No.2 is held to be correctly decided by the learned court below. 18. In respect of issue No.3, it is seen that while the appellant had proved the Deed of Agreement dated 16.11.1998 (Ext.27), but the respondents No.1 & 5 did not adduce evidence in support of their pleadings. Hence, the respondents No.1 & 5 had not been able to prove their stand that the said Deed of Agreement was forged and fraudulent one. On a perusal of the evidence on affidavit filed by respondents No.2 & 3 (since deceased), they had merely made a statement that they did not sign the Deed of Guarantee. However, there is no positive statement in their evidence that the signatures contained in Ext.27 were not their signatures. No effort was made to prove that the signatures claimed to be of the respondents No.2, 3(since deceased) and respondent No.4 were forged in the said agreement (Ext.27). However, there is no positive statement in their evidence that the signatures contained in Ext.27 were not their signatures. No effort was made to prove that the signatures claimed to be of the respondents No.2, 3(since deceased) and respondent No.4 were forged in the said agreement (Ext.27). Hence, in the opinion of this Court, the respondents have not be able to establish that the Deed of Agreement dated 16.11.1998 was fraudulent or forged and under the circumstances, the issue No.3 was not correctly decided by the learned court below, insofar as the findings of the trial court is concerned, as recorded in para-31 thereof to the effect that Ext.27 will not bind the guarantors by holding that Ext.27 was not a Guarantee Agreement between the appellant and the guarantors and that the Deed of Agreement dated 16.11.1998 (Ext.27) was made only between the appellant and the respondent No.5. In this regard, the learned trial court has not given any finding as to why the clause of guarantee contained in the agreement (Ext.27) was not a clause which would bind the guarantors. There is nothing in the evidence on affidavit filed by DW.1 & DW.2 from which it can be culled out that the clause providing for guarantee does not bind the defendants No.3, 4 & 5 (respondents No.2, 3 and 4) as guarantors. There appears to be no rule of drafting that agreement containing a "clause providing for a guarantee" must be a stand-alone agreement, and such a clause cannot be put in any loan agreement. The clause providing for guarantee otherwise appears to be a valid clause between the parties. In order to obliterate the guarantee clause, the learned trial court has not given any reasoning or definite finding why the said clause is not binding on any guarantor. There is no positive finding as to why the clause for guarantee can be held to be void. Therefore, in the absence of any specific finding, the clause of guarantee contained in the agreement dated 16.11.1998, having not been declared to be void, cannot be held to be not binding on the signatories and on the surviving respondents No.2 and 4. The contract of indemnity can either be discharged under the specific provisions contained in Chapter-VIII on 'indemnity' and 'guarantee'. The contract of indemnity can either be discharged under the specific provisions contained in Chapter-VIII on 'indemnity' and 'guarantee'. The DW.1 and DW.2 could not prove that the liability of surety i.e. respondents No.2 to 4 herein can be discharged by variance of terms of the contract or that guarantee stood revoked. Under the circumstances, the finding to the effect that the surviving respondents No.2 & 4 cannot be bound by guarantee clause, cannot be sustained. Hence, the finding on issue No.4 to the effect that the Deed of Agreement (Ext.27) was not binding on respondents No.2 & 4 is reversed by holding that the surviving respondents No.2 & 4 are bound by agreement dated 16.11.1998 so far as the guarantee is concerned. The respondent No.3, being dead, no liability can be fastened on his estate as the appeal has abated against him. The issue is answered accordingly. 19. In respect of issues No.4 & 5, on the basis of findings recorded above, the appellant/plaintiff is found to be entitled to a joint and several decree as prayed for, not only against the respondent No.5, as decreed, but also against the other respondents No.1, 2 & 4. Since the respondent No.3 having expired and his name being striked off, no order can be passed against the respondent No.3. The decision on the liability of respondents No.2 and 4 herein, therefore, stands modified to the extent as indicated above. 20. As regards the issue No.1, it is seen that Ext.3 to 26 were not signed by the respondent No.5 as the partner of any partnership firm, but as the proprietor of M/s. Abhisekh Commercial. The agreement dated 16.11.1998 (Ext.27) reflects that the transaction amongst the parties were in personal capacity without involving any partnership firm. Therefore, the learned trial Court has correctly held that the suit was not barred by section 69 of the Partnership Act, 1932, and the said decision is affirmed. 21. In view of the discussion above, specifically in relation to issue No.3, the two points of determination as formulated above is answered as following: (i) The point of determination No.1 is answered by holding that the Deed of Agreement dated 16.11.1998 (Ext.27), being otherwise valid and enforceable, the clause providing for guarantee by the respondents No.2, 3 (since deceased) and 4 is also valid and enforceable in the eye of law. The respondents have not been able to prove that the clause providing for the guarantee by the respondents No.2, 3 (since dead) and 4 being not void ab-initio or voidable, or illegal, fraudulent or opposed to public policy, the Deed of Agreement dated 16.11.1998 (Ext.27) inducing the clause providing for guarantee by the respondents No.2, 3 and 4 is held to be binding upon the said respondents, except the respondent No.3 (i.e. defendant No.4) being dead, this appeal stands abated against him. The right to sue survives against the remaining respondents. (ii) The point of determination No.(ii) is answered by holding that as per the Deed of Agreement dated 16.11.1998 (Ext.27), the respondent No.1 was a borrower. In the impugned judgment, although it has been mentioned in a couple of place that the respondent No.1 was also a borrower along with his wife i.e. respondent No.1, the mentioning of respondent No.1 as a guarantor is nothing but a incorrect finding. Hence, the record is set right by holding that the respondent No.1 herein was one of the co-borrower with respondent No.5. Hence, the respondent No.1 must consequently suffer a joint and several decree in the suit. (iii) Therefore, in respect of point of determination No.(iii) it is held that as the Deed of Agreement (Ext.27), being otherwise valid in respect of the clause providing for guarantee, the same cannot be held to be in oblivion and, as such, the respondents No.2 & 4 herein having stood as guarantors, is required to suffer the decree. Moreover, as per the said Deed of Agreement dated 16.11.1998 (Ext.27), the respondent No.1 was the co-borrower along with respondent No.5, the appeal deserves to be allowed by allowing decree against the respondent No.1 herein. The point of determination No.(iii) is answered accordingly. 22. In terms of the findings recorded by the learned trial court in para-32 holding that under Section 8 of the Assam Money Lending Act, the appellant would be entitled to interest at the rate of 12.50% per annum on unsecured loan, this Court is of the view that the appellant is entitled to a decree for recovery of Rs. 60 Lakh from the respondents No.1, 2 & 4 with interest @ 12.50% per annum from the date of institution of the suit i.e. 31.10.2000, till recovery. 60 Lakh from the respondents No.1, 2 & 4 with interest @ 12.50% per annum from the date of institution of the suit i.e. 31.10.2000, till recovery. Accordingly, the suit stands decreed with cost, jointly and severally against respondents No.1, 2 and 4 (i.e. defendants No. 2, 3 and 5) in addition to decree already passed against the respondent No.5 i.e. defendant No.1. 23. Resultantly, the appeal stands allowed to the extent as indicated above. 24. Prepare a decree accordingly. 25. Let the LCR be returned forthwith.