V.P. Bhatnagar, J. - (1.) This is a suit filed by the Oriental Bank of Commerce for the recovery of Rs. 2,94,132.50 P. on the allegation that a loan in the sum of Rs. 2,00,000/- was advanced to defendant No. 1 on September 23, 1980 for the purchase of a truck against guarantee furnished by defendants 2 and 3. It may be stated here that defendant No. 3 died during the pendency of the suit and his legal representatives were brought on the record. Further allegations of the plaintiff are that the defendants failed to pay back the loan amount in accordance with the repayment schedule. The present suit has, therefore, been filed for the recovery of the principal loan amount, incidental charges and interest thereon. It may also be noticed here that this suit was initially institute under the provisions of Order 37 Civil Procedure Code. Whereas defendants 2 and 3 were allowed to defend the suit unconditionally, defendant No. 1 was allowed to defend the suit only on the ground of interest. Simultaneously, a decree for the recovery of Rs. 2,00,000/- was given against defendant No. 1 on November 13, 1985.
(2.) Defendant 1 has contested the suit only on the ground of interest. His case is that he agreed to pay simple interest at the rate of 14% only and not what has been claimed by the plaintiff. The guarantors-defendants 2 and 3 averred that Mr. M.L. Sharma was not competent to institute the suit on suit on behalf of the plaintiff-Bank. They also contested the suit on the ground of limitation and that the rate of interest charged was grossly excessive. Further plea raised by them was that a number of securities viz., truck No. HPA-5991, motor cycle No. 991 and agricultural immoveable property of defendant No. 1 wee available to the plaintiff besides the hypothecated truck for recovering the loan amount but that the plaintiff did not proceed against the said securities in a diligent manner thereby allowing defendant No. 1 to dispose of the same. The liability of defendants 2 and 3, therefore, stood discharged due to the aforesaid conduct on the part of the plaintiff.
(3.) The parties were taken to trial on the following issues:- 1. Whether Shri M.L. Sharma is competent to institute the present suit on behalf of the plaintiff-bank ? OPP. 2. Whether liability of defendants No. 2 and 3 stands discharged due to the conduct and negligence of the plaintiff as alleged in para 6 of their written statement ? OP defendants No. 2 and 3. 3. Whether the suit is within limitation qua defendants No. 2 and 3 ? OP defendants No. 2 and 3. 4. To what rate and amount of interest is that plaintiff entitled to recover ? 5. Relief. Issue No. 1.;