Decided on August 25,2006

G. RAMASWAMY Appellant
Central Bank of India And Ors. Respondents


K. Gnanaprakasam, J. - (1.) THE 5th defendant in the Original Application (OA) has preferred this appeal as against the judgment dated 29.9.2003 passed by the DRT, Ernakulam, in TA -1015/1997[(OS -711/1994), Sub -Court Kollam].
(2.) THE 1st respondent in the OA. viz. M/s. Surya Refineries Private Ltd. was a Private Limited Company, in which the appellant was one of the Director. The defendant Company had Cash Credit facility with the applicant Bank of Rs. 18 lakh on 21.8.1989, for which it had executed an agreement of Hypothecation and also Demand Promissory Note on 21.8.1989. The repayment of the amount was guaranteed by the defendants 2,4 and 5 in the OA and they have also executed a letter of guarantee dated 21.8.1989. The 1st defendant Company had also executed necessary Deeds and Letters in favour of the applicant Bank. The 2nd defendant had also executed a mortgage by deposit of title deeds on 21.8.1989 offering his property for due repayment. It is the case of the applicant Bank that at the request of the defendants, the credit limits were enhanced on 9.2.1980, 21.3.1980, 9.8.1990 and on 9.11.1990, and the 1st defendant company had executed fresh documents on those debts, extending mortgages to the enhanced limits. All the amounts due and payable by the 1st defendant company were guaranteed by the defendant Nos. 2,4 and 5 as per the letter of guarantee dated 10.4.1992 and they have also executed a declaration, Memorandum of title deeds, particulars of existing charge, application f for credit facilities, authorisation letter, interest escalation . Application and agreement for letter of credit, letter of lien and also letter stating that the mortgaged properties belong to the 1st defendant, on 10.4.1992. As the 1st defendant company committed default in the repayment, the applicant Bank, brought the suit for the recovery of a sum of Rs. 1,74,38,064.13p. together with interest thereon. The appellant who is the 5th defendant in the TA resisted the claim of the Bank by filing written statement, contending that he was one the directors along 3 with the defendants 2, 3 and two others. That in respect of the loan availed from the applicant Bank on cash credit facilities of Rs. 18 lakh, this defendant joined in the agreement of guarantee on 21.8.1989 to repay the said amount. But this defendant did not make any further request to the applicant Bank to enhance the aforesaid limit of Rs. 18 lakh and he has not executed any other letter except the agreement of guarantee letter dated 21.8.1989. He was attending the Board Meetings of 1st defendant Company only upto 17.8.1989, and thereafter he was never informed of any meeting of the Board of Directors and he was not aware of the enhancement of the loan granted by the applicant Bank. This defendant did not sign the document Nos. 27,40,55 and 61 produced by the applicant Bank. This defendant's signature was forged by the applicant Bank in collusion with defendants 2 to 4. The original guarantee dated 21.8.1989 executed by this defendant along with others was superseded, modified, forged and altered without this defendant's consent and hence it has ceased to exist and it became unenforceable. He had not executed any guarantee dated 10,4.1992, A perusal or document No, 61 produced by the applicant Bank would show that the signature of this defendant was forged and the said forgery was committed by the other defendants with the connivance of the applicant Bank officials, The applicant Bank Itself had taken action to prosecute their then Chief Manager and the defendant 2 to 4 and another and made complaint to the Central Bureau of Investigation (CBI) and CBI after due investigation had also laid a charge against the defendants 2,4 and another son of the 2nd defendant and also e against the then Chief Manager of the applicant Bank, Thus the 5th defendant, denied his liability to the claim of the applicant Bank.
(3.) THE DRT after taking into consideration all the aspects of the ease, tame to the conclusion that the applicant Bank has failed to prove that the 5th defendant had executed Exhibit A67 letter of guarantee dated 10.4.1992, Exh. A29. Letter of guarantee dated 23.3.1990, Exh, A42 letter of guarantee, dated 9.8.1990, Exh. A57. Balance confirmation letter dated 9.11 1990. and Exh. A76 balance confirmation letter dated 10.4.1992. But however, the Tribunal held that the 5th defendant is liable to extent of Rs. 18 lakh based upon the letter of guarantee dated 21.8.1989. Aggrieved by the same, the 5th defendant has preferred this appeal. I have heard the learned Advocates for the appellant and also the respondent and also perused the appeal papers.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.