JUDGMENT : Heard the learned senior counsel for the appellant but no one turns up on behalf of respondents in spite of repeated calls, hence, this appeal is heard ex-parte against the respondents. 2. This Second Appeal under Section 100 of the Code of Civil Procedure is preferred against the judgment and decree dated 29.01.2005 passed by learned Additional District Judge, (Fast Track Court No. II), Civil Court, Gumla in Title Appeal no. 21 of 1998 whereby and whereunder, in a judgment of concurrence, learned First Appellate Court has dismissed the appeal on contest without costs and confirmed the judgment and decree passed by the Learned Subordinate Judge, III, Gumla in Title (Money) Suit No. 12 of 1990 by which learned Subordinate Judge III, Gumla decreed the suit of the plaintiff and declared that the deduction of Rs. 10,765.52/- and Rs. 24,030.70/- from the D.B.Account of the plaintiff by defendant no. 2 on 11.03.1983 and 23.02.1989 respectively is illegal and not binding upon the plaintiff and also held that the plaintiff is entitled to withdraw the deducted amount from his D.B. account with the bank with simple interest @ 5% per annum from the date of filing of the suit till recovery. 3. The case of the plaintiff in brief is that the plaintiff had one Double Benefit Account with the defendant no. 2 – the appellant bank, the defendant no. 1 took a loan of Rs. 63,000/- for purchase of a trekker from the defendant no. 2. Both the defendant nos. 1 and 2 came to the plaintiff and obtained his signature on some document saying that since the defendant no. 1 has taken a loan for purchase of a tractor so he should become a witness. Both the defendants practiced fraud upon the plaintiff. It is the further case of the plaintiff that all of a sudden, the defendant no. 2 gave a letter dated 23.02.1989 to the plaintiff intimating him that it has deducted a sum of Rs. 24,030.70 from the said Double Benefit Account of the plaintiff on 23.02.1989 and Rs. 10765.52 on 11.05.1983 and prior to that, the plaintiff was never given any notice to show-cause and the plaintiff approached the defendant no. 2 and wanted to know about its illegal action of deduction of money from the account of the plaintiff. It is further alleged that the defendant no. 10765.52 on 11.05.1983 and prior to that, the plaintiff was never given any notice to show-cause and the plaintiff approached the defendant no. 2 and wanted to know about its illegal action of deduction of money from the account of the plaintiff. It is further alleged that the defendant no. 2 had not made any effort to realize the loan from the defendant no. 1 and that the defendant no. 2 should have seized and sold the trekker for default in payment of loan hence, the plaintiff filed the suit with the following prayers: (a) that it be declared that the deduction of Rs. 10,765.52 /- on 11.05.1983 and Rs. 24,030.70/- on 23.02.1989 from the Double Benefit account of the plaintiff by the defendant no. 2 is illegal and not binding upon the plaintiff. (b) That it be also declared that the plaintiff is entitled to withdraw the so-called deducted amount along with its interest up to the date of payment. (c) That, any other relief or reliefs to which, the plaintiff is entitled for cost of the suit. (d) cost of the suit. 4. The defendant no. 1 in his written statement, besides challenging the suit on various technical grounds, pleaded that the trekker purchased by the defendant no. 1, met with an accident twice and the business of the defendant no. 1 failed, causing heavy loss and the partners of the defendant no. 1 could not manage to start the business again and the trekker had to be sold and the money was distributed among the partners. The defendant no. 1 admitted that his trekker was financed by the defendant no. 2 and the plaintiff was fully aware about the fact that the plaintiff and the defendant no. 1 will be liable for repayment of the money, financed by the bank, for purchase of the trekker. It is then pleaded that the plaintiff avoided to repay money and wanted to get away from the liability of repayment of the money financed by the defendant no. 2- bank. The defendant no. 1 further pleaded that the plaintiff was one of his partners in the business and as business incurred losses hence, the plaintiff is avoiding his liability. The defendant no. 2 in its written statement also challenged the maintainability of the suit filed by the plaintiff on technical grounds. The defendant no. 2 pleaded that the defendant no. The defendant no. 1 further pleaded that the plaintiff was one of his partners in the business and as business incurred losses hence, the plaintiff is avoiding his liability. The defendant no. 2 in its written statement also challenged the maintainability of the suit filed by the plaintiff on technical grounds. The defendant no. 2 pleaded that the defendant no. 1 approached the defendant no. 2- bank by filing a petition asking for loan of 12,000/- against the 3rd party security of D.D.B. receipt no. 16/153 dated 12.07.1979 of plaintiff with fresh value of Rs. 16,000/-. The aforesaid D.D.B. receipt was duly discharged with a letter of appropriation. The plaintiff authorized the bank by his letter of appropriation to withdraw and utilize the proceeds of aforesaid deposit. The plaintiff executed a letter of guarantee dated 12.08.1978 marked as Exhibit ‘F’ in which he undertook the responsibility of due payment of the loan granted to defendant no. 1 within two days of demand in writing and to give effect to his guarantee, as if the plaintiff was the principal debtor. The defendant no. 2 further pleaded that the plaintiff authorized the bank in writing to credit the interest amount out of his D.D.B. receipt certificate no. 16/153 to loan account of the defendant no. 1 after maturity with a further request to renew his principal amount of Rs. 16,000/-. The bank issued a notice to the plaintiff on 29.09.1988 stating therein that in case of non-payment by the defendant no. 1 in his loan account, the appropriation of his D.D.B. certificate will be effected within a week from the date of that letter. It is further pleaded by the defendant no.2- bank that instead of taking proper action in the context of the said letter, the plaintiff submitted a petition to the Joint Zonal Manager, Bank of India, Ranchi showing his grievance over appropriation of statutory value of D.D.B. certificate in the loan account of the defendant no. 1. In the said letter, the plaintiff reiterated that he stood guarantor for the defendant no. 1 and also accepted that the bank has informed him from time to time about the loan account. The defendant no. 1 requested the bank for loan of Rs. 12,000/- against the security of D.D.B. certificate and against the said D.D.B. certificate, he pleaded for Rs. 16,000/- . Further the defendant no. 1 and also accepted that the bank has informed him from time to time about the loan account. The defendant no. 1 requested the bank for loan of Rs. 12,000/- against the security of D.D.B. certificate and against the said D.D.B. certificate, he pleaded for Rs. 16,000/- . Further the defendant no. 1 executed D.P. note for Rs. 12,000/- dated 12.08.1978 along with letter of installment, Continuing Security Bond, Letter of Lien and Set Off, Letter of Set Off Appropriation etc. 5. In view of rival pleadings of the parties, learned trial court settled the following 13 issues :- I. Is the suit maintainable in its present form? II. Has the plaintiff any valid cause of action for the present suit ? III. Is the present suit barred by Law of Limitation, estopel and acquiescence? IV. Whether the plaintiff is liable to pay ad veloram court fee on the value of the suit ? V. Whether this court has jurisdiction to try the present suit? VI. Whether parties concerned, ever took loan form Bank of India, Chainpur Branch for purchasing trekker or not? VII. Whether the parties concerned have made good payment of loan or its part payment if any taken from the Bank or not ? VIII. Whether there was any agreement amongst the parties concerned, regarding loan and its recovery? IX. Whether the defendant no. 2 is entitled for seizing the trekker in question in default of payment of loan amount? X. Are the plaintiff and his partner defendant no. 1 liable jointly or severally for repayment of loan if any taken from the Bank of India? XI. Whether the deduction of Rs. 10,765.52 paise on 11.03.1983 and Rs. 24030.70 paise on 23.03.89 form the Double Benefit Account of the plaintiff by the defendant no. 2, illegal and not binding upon the plaintiff? XII. Whether the plaintiff is entitled to withdraw the said deducted amount from his D.B. Account by the Bank with interest? XIII. To what other relief or reliefs the plaintiff is entitled to get? 6. Learned trial court first took up issue no. IV and held that the plaintiff is not liable to pay ad valorem court fees on the value of the suit. Thereafter, learned trial court took up issue nos. XIII. To what other relief or reliefs the plaintiff is entitled to get? 6. Learned trial court first took up issue no. IV and held that the plaintiff is not liable to pay ad valorem court fees on the value of the suit. Thereafter, learned trial court took up issue nos. III, V, VI, VII, VIII, IX, X, XI and XII together and after considering the evidence in the record, came to the conclusion that the learned trial court has jurisdiction to try the suit and the suit is not barred by law of limitation, estoppel and acquiescence. The defendant no. 1 took loan from defendant no. 2- the bank, for purchasing a trekker and the defendant no. 1 made part payment of the loan. The plaintiff is not a guarantor of the said loan and no agreement was executed between the party concerned regarding the loan and its recovery. Learned trial court further held that the defendant no. 2 was entitled for seizing the trekker in question in default of payment of loan amount but the defendant no. 2 defaulted in compliance of the same. Learned trial court then held that the plaintiff is not liable for the repayment of the loan amount, if any taken from the Bank of India and the deduction of Rs. 10,765.52/- on 11.03.1983 and Rs. 24030.70/- on 23.02.1989 from the D.B. Account of the plaintiff by the defendant no. 2 is illegal and not binding upon the plaintiff. Learned trial court held that the plaintiff is entitled to withdraw the said deducted amount from his D.B. Account of the appellant bank with Simple Interest @ 5% per annum from the date of filing of the suit till recovery. Learned trial court thereafter, took up issue no. I, II and XIII together and upon consideration of the facts and circumstances of the case, held that the plaintiff has got valid cause of action for the suit and the plaintiff is entitled for the relief prayed for in the plaint and decreed the suit as already indicated above. 7. Being aggrieved by the judgment and decree passed by learned trial court, the defendant no. 2- the appellant filed Title Appeal No. 21 of 1998 in the court of learned District Judge, Gumla and the same was ultimately heard and disposed of by learned First Appellate Court vide its impugned judgment. 8. 7. Being aggrieved by the judgment and decree passed by learned trial court, the defendant no. 2- the appellant filed Title Appeal No. 21 of 1998 in the court of learned District Judge, Gumla and the same was ultimately heard and disposed of by learned First Appellate Court vide its impugned judgment. 8. Learned First Appellate Court made an independent appreciation of the evidence in the record i.e. three witnesses examined by the plaintiff and also six witnesses by the defendant. Learned First Appellate Court also considered the Exhibit A and came to the conclusion that it appears that the plaintiff and defendant no. 1 agreed that a tractor or trekker be financed by the bank being the defendant no. 2 to the defendant no. 1 and according to the plaintiff, he was made witness on the request of the defendant no. 1 and 2 whereas the defendant no. 1 says that the plaintiff and one Benedick Toppo were the partners in purchase of the tractor and they were jointly liable for the same and they have to pay the rent amount to the defendant no. 2. Learned First Appellate Court also came to the conclusion that it appears that the defendant no. 2 in collusion with the defendant 1, had taken the signatures of the plaintiff on some papers which was not proper in law. Learned First Appellate Court made an erroneous observation that if it is presumed that the plaintiff has executed a security bond (Ext. G) in favour of defendant no. 2- bank then the plaintiff is liable to pay the loan amount if the defendant no. 1 fails to repay the same to the creditor being the bank and for that, the court has to see whether any effort was made by the bank to realize the loan from the defendant no. 1. Learned First Appellate Court also considered the admission of the defendant no. 1 in his cross-examination in paragraph 5 that he admitted that he had taken a loan of Rs. 33,000/- to purchase a trekker from the defendant no. 2 and except that, no other loan was taken by him. In paragraph 8 of the cross-examination, the defendant no. 1 admitted that he has taken loan of Rs. 12,000/- from the bank and learned First Appellate Court observed that it is proved that defendant no. 1 has applied for a loan Rs. 2 and except that, no other loan was taken by him. In paragraph 8 of the cross-examination, the defendant no. 1 admitted that he has taken loan of Rs. 12,000/- from the bank and learned First Appellate Court observed that it is proved that defendant no. 1 has applied for a loan Rs. 12,000/-from the defendant no. 2 and utilized the same for his own purpose therefore, it was the duty of the creditor bank to get the money back from the defendant no. 1 first but neither any notice was given by the bank to Baldeo Prasad Sahu nor there is any evidence that what amount the bank could be able to realize from the defendant no. 1 but as the bank has realized Rs. 10,765.52/- on 11.03.1983 and Rs. 24,030.70/- on 23.02.1989 from the D.B. Account of the plaintiff without informing him that the defendant no. 1 has not paid the loan amount and as per the Exhibit G- the Continuing Security Bond, the plaintiff is liable for the payment of Rs. 12,000/- but the defendant no. 2 has deducted more than that amount from the account of the plaintiff and such an act of the bank was illegal. Learned First Appellate Court also found and held that defendant no. 2 has not complied the procedure to realize the loan as per the law hence, the plaintiff is entitled to get the same back from the bank which was deducted by the bank from his Double Benefit Account and confirmed the judgment and decree passed by learned trial court and dismissed the appeal. 9. At the time of admission of this appeal, vide order dated 23.06.2009, following substantial question of law was formulated: “Whether the suit could be decreed by the courts below in view of the admission and the evidence of the plaintiff establishing his liability?” 10. Mr. A. Allam, learned senior counsel for the appellant submits that as there is admission by the plaintiff that he put his signature on the loan documents of the defendant no.1 and his signature on the Exhibit G is undisputed, so, the plaintiff be not permitted to deny the validity of the instrument as originally made or drawn in view of Section 120 of the Negotiable Instrument Act, 1881 which reads as under : “120. Estoppel against denying original validity of instrument.—No maker of a promissory note, and no drawer of a bill of exchange or cheque, and no acceptor of a bill of exchange for the honour of the drawer shall, in a suit thereon by a holder in due course, be permitted to deny the validity of the instrument as originally made or drawn.” and submits that the plaintiff is estopped and is not permitted in law to deny the validity of the instrument i.e. the Letter of Guarantee as originally made or drawn and in this respect to the learned counsel for the appellant also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Industrial Finance Corporation of India Ltd v. Cannanore Spinning and Weaving Mills Ltd. and others reported in AIR 2002 SC 1841 , para 36 of which reads as under : “36. This Court in Kaluram's case (supra) in its Three-Judge Bench judgment upon approval has been pleased to take note of the situation that subject to certain variations Section 141 of the Contract Act incorporates the Rule of English Law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him. Incidentally, the decision in Kaluram (supra) as also a later decision of this Court in State Bank of Saurashtra v. Chitranjan Rangnath Raja and Anr. ( 1980 (4) SCC 516 ) was dealing with a contra situation and came to a conclusion that by reason of the deliberate act of the principal debtor or the creditor and without the knowledge, consent and approval of the surety, question of further liability would not arise and in the contextual facts discharged the guarantor - the situation presently, however, is converse thereto by reason of the fact that it is not by any definite act of the debtor but by an operation of law for which none of the parties had any control. Significantly, it may be stated that the liability of the guarantor cannot but be stated to be a strict liability and even if the principal debtor is discharged from his liability unless such discharge is through the act of the creditor without consent of the surety/guarantor, the creditor's right of action against the surety is preserved.” (Emphasis supplied) 11. Significantly, it may be stated that the liability of the guarantor cannot but be stated to be a strict liability and even if the principal debtor is discharged from his liability unless such discharge is through the act of the creditor without consent of the surety/guarantor, the creditor's right of action against the surety is preserved.” (Emphasis supplied) 11. It is further submitted by learned senior counsel for the appellant that it is a settled principle of law that even the principal debtor is discharged from the liability, unless such discharge is through the act of the creditor without consent of the surety / guarantor. The creditor’s right of action against the surety is preserved. 12. Learned senior counsel next relies upon the judgment of the Hon’ble Supreme court of India in the case of Sita Ram Gupta v. Punjab National Bank and Ors reported in 2008 AIR SCW 3648, para 6 and 7 of which reads as under :- “6. We have carefully examined the submissions made on behalf of the parties and also the relevant clauses in the agreement of guarantee. In our view, the High Court was perfectly justified in holding that the appellant was liable to pay the decretal amount to the Bank in view of the clause, as mentioned herein earlier, in the agreement of guarantee itself. The agreement of guarantee clearly provides that the guarantee shall be a continuing guarantee and shall not be considered as cancelled or in any way affected by the fact that at any time, the said accounts may show no liability against the borrower or may even show a credit in his favour but shall continue to be a guarantee and remain in operation in respect of all subsequent transactions. This was an agreement entered into by the appellant with the Bank, which is binding on him. Therefore, the question arises whether the statutory provision under Section 130 of the Act shall override the agreement of guarantee. In our view, the agreement cannot be said to be unlawful nor the parties have alleged that it was unlawful either before the Trial Court or before the High Court. Let us, therefore, keep in mind that the agreement of guarantee entered into by the appellant with the Bank was lawful. 7. In our view, the agreement cannot be said to be unlawful nor the parties have alleged that it was unlawful either before the Trial Court or before the High Court. Let us, therefore, keep in mind that the agreement of guarantee entered into by the appellant with the Bank was lawful. 7. The question is whether the appellant, having entered into such an agreement of guarantee with the Bank, had waived his right under the Act. In our view, the High Court has rightly held and we too are of the view that the appellant cannot claim the benefit under Section 130 of the Act because he had waived the benefit by entering into the agreement of guarantee with the Bank. In Shri Lachoo Mal vs. Shri Radhey Shyam, [ (1971) 1 SCC 619 ], this Court observed that the general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public principle. In Halsbury's Laws of England, Vol. 8, 3rd Edn., it has been stated in para 248 at page 143 as under: - "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void." (Emphasis supplied) In Brijendra Nath Bhargava and Ann Vs. Harsh Wardhan and Ors. [ (1988) 1 SCC 454 ], it has been observed at page 461 in para 10 that if a party had given up the advantage he could take of a position of law, it was not open to him to change and say that he could avail of that ground. The same principle has been followed in Bank of India and Ors. vs. O. P. Swarnakar and Ors. The same principle has been followed in Bank of India and Ors. vs. O. P. Swarnakar and Ors. [ (2003) 2 SCC 721 ].” and submits that the plaintiff is liable to pay the defaulted amount in respect of the loan taken by the defendant no. 1 with the guarantee of the plaintiff and guarantee of the plaintiff can be stated to be a strict liability. 13. Learned senior counsel next relies on the judgment of Hon’ble Supreme court of India in the case of Industrial Investment Bank of India Ltd. vs. Biswanath Jhunjhunwala reported in 2010 2 JLJR(SC) 39, para 21 of which reads as under :- “21. The term “co-extensive” has been defined in the celebrated book of Polock & Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page 728 as under: “Co-extensive - Surety’s liability is co-extensive with that of the principal debtor. A surety’s liability to pay the debt is not removed by reason of the creditor’s omission to sure the principal debtor. The creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be maintained against the surety though the principal has not been sued.” (Emphasis supplied) and submit that it is a settled principle of law that creditor is not bound to exhaust his remedy against the principal before suing the surety and a suit may be maintained against the surety though the principal has not been sued. 14. Mr. Allam next relies upon the judgment of the Hon’ble High court of Himachal Pradesh in the case of UCO Bank Vs. Ashok Gautam and Others reported in 1991 SCC Online HP 17, para 13 of which reads as under :- “13. Now, the question is whether defendant No. 1, Ashok Gautam, had the authority to act as an agent for and on behalf of defendant No. 2, Tilak Raj, the guarantor. It is a well-established principle that a surety, like any other contracting party, cannot be held bound to something for which he has not contracted and, if the original parties have varied the terms of the original contract, then, unless the surety has assented to the new terms of the contract, the surety cannot be held to be liable for the repayment of the loan. The security is discharged forthwith on the contract being altered without the surety's consent as the parties make it impossible for the guaranteed performance to take place. It is also an established fact that, in respect of any debt incurred by the principal during the currency of the guarantee, the surety is liable so long as the debt is recoverable from the principal. It does not matter that the principal has kept the debt alive by acknowledgments under section 19 of the Limitation Act or by payments under section 20, for, by these acts, the limitation for filing a suit is only extended. Otherwise too, the debt is not extinguished nor is it modified, only the remedy is barred. The contract is not varied. The original contract continues without any change. The debtor's acknowledgment, thus, does not create a contract different from the one for the performance of which the surety had guaranteed. If a debt barred by limitation is not extinguished, an acknowledgment designed to place it beyond the pale of unenforceability certainly cannot alter its nature or character, or that of the contract on which it is founded, so as to enable the surety to disown his obligation. Such an acknowledgment or part payment can be made through the agent duly authorised in this behalf. In other words, the surety can appoint the principal debtor as his agent for the aforesaid purpose. Evidently, in such an eventuality, the principal debtor while making the acknowledgment or part payment, would not be binding himself alone but also the surety because the acknowledgment or payment then would be deemed to have been made on behalf of the surety as well. The principal debtor would then be acting as the agent of the surety in addition to acting for himself.” and submit that the acknowledgment or part payment of a debt by the principal debtor would not only be binding upon himself but also upon the sureties because the acknowledgment or part payment, then would be deemed to have been made on behalf of the sureties as well and submits that in view of Section 20 of the Negotiable Instrument Act which reads as under: “20. Inchoate stamped instruments.—Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.” and submits that as the plaintiff has admitted his signature on the Letter of Guarantee and other documents being Letter of Appropriation authorizing the bank to appropriate the outstanding amount in the debit account of the defendant no. 1 from the account of the plaintiff, hence both the courts below should not have decreed the suit of the plaintiff in view of the admission of the plaintiff, establishing his liability. 15. Mr. Allam further draws attention of the court to Section 128 of the Indian Contract Act, 1872, which reads as under : “128. Surety's liability.—The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract.” and submits that liability of the surety or the guarantor is co-extensive to that of principal debtor unless it is otherwise provided by the contract and in this case, the contract being the Letter of Guarantee having not contained anything contrary, so in view of Section 128 of the Indian Contract Act, 1872 also, the appellant defendant no. 2- bank is liable to realize the outstanding debt amount from the D.B. account of the plaintiff and as the liability of both the defendant no. 1 and plaintiff was joint and several, so the defendant no. 2- bank has the choice of realising the amount from whomsoever, it thinks fit and proper and having done so, both the courts below, in an act of perversity, under an erroneous impression that the defendant no. 1 and plaintiff was joint and several, so the defendant no. 2- bank has the choice of realising the amount from whomsoever, it thinks fit and proper and having done so, both the courts below, in an act of perversity, under an erroneous impression that the defendant no. 2- appellant bank was duty bound to make efforts to realize the outstanding loan amount from defendant no. 1 but having not done so, have wrongly decreed the suit. It is therefore submitted that the impugned judgment and decree passed by both the courts below being not sustainable in law be set aside and the suit of the plaintiff be dismissed. 16. Having heard the submissions made at the Bar and after going through the materials in the record, this court has no hesitation in holding that both the courts below have made an erroneous observation in their respective judgments that it was incumbent upon the appellant – defendant no. 2- bank to exhaust the process of realization of the outstanding loan amount of the defendant no. 1 being the borrower, from him. In view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Industrial Investment Bank of India Limited vs. Bishwanath Jhunjhunwala (supra) and Industrial Financial Corporation of India Limited vs. Cannanore Spinning and Weaving Mills Ltd. & Ors. (supra), this court has no hesitation in holding that once the plaintiff admitted his signature on the Letter of Guarantee as well as the Letter of Appropriation having been marked as Exhibit F and G respectively during the trial, in view of the Section 120 of the Negotiable Instrument Act, the plaintiff is not permitted to deny the validity of the Letter of Guarantee and in view of the section 20 of the Negotiable Instrument Act, assuming for the sake of argument that the plaintiff has signed a blank Letter of Guarantee, either wholly blank or having written thereon an incomplete negotiable instrument, it be deemed that the plaintiff gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument for any amount specified therein and as the plaintiff shall be liable upon such instrument in the capacity of guarantor in which, he signed the same, to any holder in due course for such amount. 17. 17. In view of the discussions made above, this court is of the considered view that both the courts below have committed grave error and act of perversity, by decreeing the suit of the plaintiff ignoring the admission of his signature, which has been produced as Letter of Guarantee and Letter of Appropriation respectively and contrary to the settled principle of law as has been held by the Supreme Court of India in the case of Industrial Investment Bank of India Ltd. vs. Biswanath Jhunjhunwala (supra), that it was incumbent upon the appellant – defendant no. 2- bank to exhaust the process of realization of the outstanding loan amount of the defendant no. 1 being the borrower, from him hence, the sole substantial question of law as to whether the suit could be decreed by the courts below in view of the admission and the evidence of the plaintiff establishing his liability, is answered negative. 18. Thus, the impugned judgment and decree passed by both the courts below is not sustainable in law and is liable to be set aside. Therefore this appeal is decreed ex-parte and both the judgments and decree being the judgment and decree dated 29.01.2005 passed by the learned Additional District Judge, (Fast Track Court No. II), Civil Court, Gumla in Title Appeal no. 21 of 1998 as well the judgment and decree passed by the Learned Subordinate Judge III, Gumla in Title (Money) Suit No. 12 of 1990 is set aside and Title (Money) Suit No. 12 of 1990 filed by the plaintiff is dismissed. 19. In the result this appeal is allowed ex-parte. 20. No order as to costs. 21. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.