- (1.) The plaintiff-Bank is the appellant. OS 1251 of 1981 was filed on the file of the II Additional Judge, City Civil Court, Hyderabad, for recovery of Rs.35,495-60 ps. against the defendants.
(2.) For the sake convenience the parties in this appeal would be referred to in accordance with their ranking in the suit.
(3.) The plaintiff is a Nationalised Bank and the 2nd defendant approached the plaintiff-Bank for a loan of Rs.20,000.00 on 8-4-1976 for running business in general stores. The plaintiff-Bank sanctioned the afore-mentioned loan to the 2nd defendant to run business under the name and style of 'M/s. Om Coffee and General Stores' at Hyderabad. The loan facility provided by the plaintiff is called 'cash credit facility'. The 2nd defendant executed a demand promissory note and also executed hypothecation agreement dated 8-4-1976 in favour of the plaintiff hypothecating stocks in trade of the first defendant. Defendants 3 and 4 stood as sureties to repay the loan and hence they are also jointly liable to repay the loan. Defendants 1 and 2 also signed letters of continuing guarantee in favour of the plaintiff on 8-4-1976. The plaintiff informed the 1st defendant by its letter dated 9-5-1980 that the outstanding amount payable was Rs.30,360.00 and that the 1st defendant was requested to regularise the account. The plaintiff by its letter dated 6-2-1981 informed defendants 3 and 4 about the outstanding amount payable by the 1st defendant and to see that it is cleared. The 3rd defendant by his letter dated 23-2-1981 informed the plaintiff-Bank to take possession of the hypothecated goods of defendants 1 and 2 for realising the amount due to the plaintiff-Bank. The plaintiff through his officers on 31-3-1981 seized the hypothecated stocks in the shop bearing No.2-1-563/1/1 Nallakunta, Hyderabad and sealed shop. Defendants 1 and 2 signed the inventory of the stocks and also gave a letter to the effect that they have voluntarily handed over the stocks and the shop premises for sale by the plaintiff. The 3rd defendant by his letter dated 19-4-1981 requested the plaintiff to inform the progress if any towards the sale of the seized stocks and the balance if any. The 3rd defendant was informed by the plaintiff that the stocks would be disposed of and the balance if any will be informed to the 3rd defendant. It is the contention of the 3rd defendant and also the 4th defendant that inspite of seisure of stocks in trade they did not care to sell the hypothecated goods and had they sold the goods immediately they would have realised the loan amount with interest. The plaintiff has rushed to the Court in posthaste without selling the hypothecated goods and hence the suit is liable to be dismissed,;