STATE BANK OF SAURASHTRA Vs. D M MEHTA

JUDGEMENT

(1.) PRESENT appeal under Section 96 of the Code of Civil Procedure is filed by the appellant original plaintiff challenging the judgment and decree dated 03.01.1986 passed by the learned Civil Judge (S.D.)., Porbander in Summary Suit No.4 of 1985 dismissing the said summary suit against the original defendant Nos.4 to 6 who were guarantors.

(2.) THE plaintiff filed suit to recover an amount of Rs.6,93,238.93 paise with cost and interest against all the defendants on the basis of the Hundis. It was summary suit filed by the plaintiff. Defendants Nos.4 to 6 -respondents herein were joined as party defendants who were guarantors of defendant No.3. Defendant No.2 was the drawer in case of need. Defendant No.3 was given commercial credit by process of purchasing said hundi drawn by defendant No.3 in favour of the Bank on defendant No.1. Said Hundi were payable on or before 45 days after presentation with interest at the rate of 21.50% per annum. It was the case on behalf of the plaintiff that defendant was the payee and lawful holder in due course of said hundis and same were forwarded by the plaintiff Bank to its Branch for realization. Original defendant accepted unqualifiedly that on the date of maturity the said hundis were presented to defendant No.1 for payment. But it was refused as note - notice of dishonour was served to defendant No.3. The suit hundis were again presented with defendant No.1 for payment but he refused.

(3.) THOUGH served, nobody appeared on behalf of defendant No.2. On behalf of defendant Nos.3 to 6, application for leave to defend under Order XXXVII Rule 3(5) of the C.P.C. was filed. Defendant No.3's application for leave to defendant was rejected whereas defendant Nos. 4 to 6 application for leave to defend was allowed. The learned trial Court has framed the issues at Exh.34. The learned Civil Judge (S.D.), Porbander in a very cryptic one paragraph judgment and order dismissed the suit so far as defendant Nos.4 to 6 are concerned and decreed the suit against defendant Nos.1 and 2. The learned Civil Judge(S.D.), Porbander accordingly granted summons for judgment against defendant Nos.1,2 and 3. The learned trial Court in paragraph -4 while dismissing the suit against defendant Nos.4 to 6 has observed that defendant Nos.4 to 6 are Directors of the Company and the Company is liable, however, without considering the fact that defendant Nos.4 to 6 stood as guarantors in their individual capacity dismissed the suit. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (S.D.), Porbander dated 03.01.1986 passed in Summary Suit No.4 of 1985 in dismissing the suit against defendant Nos.4 to 6 respondents herein, the appellant plaintiff has preferred present First Appeal.