Decided on December 17,2004



K.S.Kumaran, - (1.) RESPONDENTS have filed O.A. 314/98 before the Debts Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT') against the appellants for an order directing the appellants to pay Rs. 1,39,37,688.02 with interest to the 1st respondent; to pay Rs. 94,86,867.05 with interest to the 2nd respondent; to pay Rs. 1,44,34,000/- with interest to the 3rd respondent; and also to pay the costs.
(2.) The appellants filed an application before the DRT under Order VII Rule 11 of the CPC to reject the O.A. on the ground that it is barred by limitation, urging that the appellants allegedly executed a deed of guarantee on 26.6.85 with regard to me loan allegedly disbursed to Agra Construction Company Ltd., that the said company committed default in repayment of the principal amount and the interest, that a notice dated 16.5.89 was issued to the said company calling upon the same to repay the amount with interest, but the said company failed to pay the amount, that, therefore, the amount was recoverable from the (226) appellants, and invoked the deed of guarantee by letter dated 2.11.95. The appellants also urged that the loan was disbursed in 1986, and the period of three years expired in 1989, whereas, the demand allegedly made by the invocation of the deed of guarantee was made in the year 1995, i.e. after almost nine years from the date of disbursement of the loan. Therefore, the appellants averred that the O.A. is barred by limitation, liable to be rejected under Order VII Rule 11. The appellants urged that the period of limitation for the principal debtor and the guarantor would be the same. The respondents did not file any reply to this application before the DRT, but advanced arguments opposing the application. According to the respondents, notice was sent to the principal borrower and not to the guarantors, though a copy of the notice was sent to them for information. According to the respondents the guarantee was invoked on 2.11.95 only, and, therefore the O.A. filed on 7.9.98 was in time.
(3.) THE learned Presiding Officer of the DRT dismissed the application by the impugned order dated 9.7.2001 observing that the first notice was addressed to the principal borrower, and a copy was marked to the appellants, whereas, by the second notice issued on 2.11.95 the guarantee was invoked. THE learned Presiding Officer further observed that the argument of the Counsel for the appellants that by sending the copy of the notice issued to the principal borrower the respondents had invoked the guarantee is a mixed question of law and facts requiring evidence and, therefore could not be decided at this stage. THErefore, he observed that the application has to be dismissed.;

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