- (1.) THIS civil second appeal filed by appellant -defendants Mahendra and Chagan Singh is directed against the judgment and decree dated 24.05.2011 passed by learned Additional District Judge, Sumerpur, whereby the learned first appellate court dismissed Civil Appeal Decree No.16/2010 (33/2009) filed by the appellant -defendants and affirmed the judgment and decree dated 31.07.2009 passed by learned Civil Judge (Senior Division), Bali, District Pali in Civil Original Case No.19/2006, whereby the learned trial court decreed the suit filed by the respondent -plaintiffs for recovery of money. The brief facts of the case giving rise to the present appeal are that on 24.08.2006 respondent No.1 -plaintiff Bank filed a suit for recovery of Rs.31734/ - against the appellant defendants and the respondent No.2 with the averments that on 01.09.2003 a composite term loan of Rs.45600/ - was sanctioned to the defendant No.1 on some conditions and he executed the requisite documents in favour of the plaintiff -Bank. The defendant No.2 and 3 stood as guarantors and executed guarantee agreement. The defendant No.1 failed to repay the regular instalments as per the terms and despite registered notice, he did not pay the loan amount. The respondent -plaintiff Bank served notice dated 17.07.2006 and 05.08.2006 to the defendants, but all the defendants failed to repay the loan amount, hence, the suit for recovery of loan amount and interest in total Rs.31734/ - was filed. The appellant -defendants filed joint written statement with the averments that all the relevant documents have not been provided with the plaint. It was further averred that account has been maintained incorrectly by the Bank and after deducing Rs.7200/ - as subsidy, an amount of Rs.27750/ - has been deposited with the Bank and it was denied that an amount of Rs.31734/ - is due. Further it was averred that on 26.09.2006 an amount of Rs.2000/ - was also deposited. It was further averred that the defendants are ready to pay appropriate amount after seeking subsidy on the amount of interest as assured by the plaintiff -Bank. Further the factum of giving notice by the Bank was denied. It was also averred that no affidavit has been filed with the plaint as per the mandatory provisions of Order 6 Rule 15(4) CPC. Further the objection regarding limitation of the suit was also raised.
(2.) DESPITE service the proforma defendant -respondent No.2 did not appear before the learned trial court, therefore, ex parte proceedings were initiated against him.
(3.) ON the basis of the pleadings of the parties, the learned trial court framed two issues including the issue No.2 regarding relief. The learned trial court did not record any evidence saying that issue No.1 is purely legal issue and the same can be decided without recording any evidence.;