V.K. Ahuja, J. - (1.) THIS is a regular first appeal filed by the appellant under Section 96 of the CPC against the judgment and decree of the court of learned Additional District Judge, Shimla, dated 9.4.1999, vide which the learned trial court has decreed the suit of the appellant partly for recovery of the amount as against the respondents.
(2.) BRIEFLY stated the facts of the case are that the appellant (hereinafter also referred to as the plaintiff) filed a suit for recovery of the amount alleging that defendant No. 1 applied to the plaintiff Bank for the grant of a medium term loan of Rs. 1,65,000/ - for the purchase of Mitushubishi Canter and agreed to get the payment of the amount guaranteed by defendants No. 2 and 3, who stood guarantors for the repayment of the amount. The amount was to be paid in 55 monthly installments alongwith interest. The defendants executed the necessary documents in favour of the plaintiff Bank. Defendants No. 2 and 3 stood guarantor and defendant No. 2 also created equitable mortgage of his property detailed in the plaint in favour of the plaintiff Bank by deposit of his title deeds with the plaintiff Bank. The defendants failed to pay the amount as agreed, hence the suit for recovery of the amount filed by the plaintiff Bank, alongwith interest. The plaintiff has also prayed for passing of a final decree for the sale of the mortgaged property. Defendant No. 1 admitted having applied for the grant of the loan amounting to Rs. 1,65,000/ - for the purchase of Mitushubishi Canter and also admitted to have agreed to pay the amount in 55 monthly installments alongwith interest. However, he pleaded that the amount was payable alongwith simple interest at the rate of 4% per annum. Defendant No. 2 denied having stood guarantor on behalf of defendant No. 1 for the repayment of the loan.
(3.) ON the pleadings of the parties, the following issues were settled by the learned trial Court: 1. Whether the suit has been filed by a person competent to institute the suit? OPP 2. Whether the defendant No. 2, 3 had guaranteed the payment of suit amount by defendant No. 1? OPP 3. Whether the suit is within time? OPP 4. Whether the suit is bad for non -joinder? OPD;