DEEPAK MAHESHWARI,J. - (1.) This first appeal under Section 96 of CPC has been filed by plaintiff/appellant against the judgment and decree dated 11.07.1996 passed by learned District Judge, Balotara in Civil Original Suit No.29/1992 whereby the suit filed by the plaintiff/appellant for recovery of money has been dismissed by learned trial Court.
(2.) Briefly stated the facts giving rise to the instant appeal are that the plaintiff/appellant Bank filed a suit for recovery of money against the defendants/respondents inter alia alleging that it had advanced a term loan of Rs.15,000/- and Rs.10,000/- as cash credit facility to defendant No.1 - Ramdeo Processing Works, Balotra on 28.1.1984 through its proprietor Ghewarchand. In this respect, defendant No.1 executed the requisite documents in favour of the plaintiff Bank. The said term loan was to be repaid in 30 equal instalments along with interest @ 14% per annum as agreed between the parties and interest @ 12% per annum was also agreed to be paid on cash credit facility. It was alleged in the plaint that on 28.1.1984, promissory note along with undertaking was also executed by the defendant No.1 in favour of the plaintiff bank in respect of cash credit facility of Rs.10,000/-. Defendant No. 2 Gebiram and defendant No.3 Veeramchand stood as sureties for the said loans and guarantee bonds were also executed by them. On 07.12.1990, defendant No.1 executed acknowledgment letters in favour of plaintiff Bank for Rs.24,289 and Rs.17,336.60 due against term loan and cash credit amount respectively. It was alleged that the suit is within limitation. Further, it was alleged in the plaint that since the acknowledgment letter dated 07.12.1990 was executed by the defendant No.1, therefore, defendants No.2 and 3 being the guarantors are also liable to be pay the outstanding amount of loan. Total amount of Rs.55,923/- is outstanding against the defendant No.1 in both the accounts, for which statement of account was also enclosed along with the suit. The plaintiff, thus, claimed total amount of Rs.55,923/- along with interest @ 14% per annum w.e.f. 10.5.1992 till the date of realization of the outstanding amount and prayed for passing the decree in its favour.
(3.) The defendants No.2 and 3 submitted the written statement and refused to have executed any guarantee bond and also pleaded that they have no knowledge about the execution of the acknowledgment letters by defendant No.1 on 7.12.1990. Further, it was contended that writing dated 07.12.90 does not come in the definition of 'acknowledgment' and the guarantors are not bound by such acknowledgment and they have been wrongly impleaded as party. Further, it was also contended that the suit is beyond limitation. It was further contended by them that they have taken loan from the plaintiff bank for their firms, for which the plaintiff bank has obtained their signatures at various places on 25-30 forms and it appears that perhaps the plaintiff bank has obtained their signatures on the documents relating to bank guarantee while putting them in dark. It was further contended that it was the duty of the bank to recover the loan amount while selling the goods, which was hypothecated with the bank and in failure to do so, there is violation of the conditions of the agreement.;