VISHNUDEO NARAYAN, J. - (1.) This appeal at the instance of the plaintiffs appellant has been preferred against the impugned judgment and decree dated 21-6-1989 and 5-7-1989 respectively passed in Money Suit No. 175 of 1974/52 of 1988 by Sri Udaykant Thakur, 4th Subordinate Judge, Dhanbad whereby and whereunder the suit of the plaintiffs-appellant was dismissed.
(2.) The plaintiffs-appellant had filed the said money suit for realisation of Rs.2,69,570.63 paise along with pendente lite and future interest @ 12% per annum against the defendants -respondent on the basis of the Hundies detailed in Schedule A of the plaint.
(3.) The case of the plaintiffs-appellant (hereinafter referred to as the 'plaintiffs'), in brief is that the plaintiffs are a partnership firm registered under the Indian Partnership Act and also registered under the provisions of Section 4 of the Bihar Moneylenders Act, 1938 and they carry on business as bankers, general merchants, and commission agents. It is alleged that'defendant-respondent No.l was the managing agent of several companies detailed in paragraph 3 of the plaint and for the facilities of financing the business of all their companies, the defendant No.l had entered into financial arrangement with the plaintiffs on terms of business upon the basis of a letter of personal guarantee dated T2-9-1959 executed by Karam Chand Thaper, Son of Lala Mansa Ram Thaper, the then managing director of defendant No.l. The said Karamachand Thaper died on 29-3-1962 and after his death his son i.e. defendant No.2 as managing director of defendant No. 1 with the sanction of the Board of Directors passed by a resolution of the Board of Directors in the meeting of the Board held on 28-12-1964 executed a deed of continuing guarantee on 4-1-1965 on terms and conditions mentioned therein and as per the terms of the said guarantee dated 4-1-1965 the plaintiffs were to advance to defendant No. 1 such sum of money as defendant No. 1 may from time to time require subject to the maximum total outstanding limit of Rs.6,50,000/- only against Hundies after deducting discount @). 35 percent of the Hundi amount and the Hundi shall be honoured by defendant No. 1 on their Calcutta office and if the same is honoured within 48 hours of presentation no interest will be payable in respect thereof and if the Hundi is honoured by defendant No. 1 within a week of presentation, interest shall be payable in respect of the Hundies not honoured within 48 hours @ 9% per annum from the date of presentation to the date of the Hundi being honoured. It is alleged that in terms of the business between the plaintiffs and defendant Nos. 1 and 2 coming on from last several years, the plain2004 Jhar./ 10 XII G 30 tiffs used to make weekly payment to collieries managed by defendant No. 1 to meet their weekly and monthly payments to worker against Hundi issued by the Central office, Bhowra payable by their head office at Calcutta and in course of the said business transaction the plaintiffs had made the cash payments to different collieries under the management of defendant No. 1 to the extent of Rs. 2,12,500/- against Hundies detailed in Schedule A of the plaint. The further case of the plaintiffs is that the Hundies detailed in Schedule A at the foot of the plaint were not retired by the defendant No. 1 on presentation and in spite of repeated demands the defendant Nos. 1 and 2 have not paid the amount due under the said Hundies and defendant No.2 as per the terms of the continuing guarantee given by him as per the document dated 4-1-1965 is also personally liable to pay the dues under the said Hundies. It is further alleged that the defendants have not retired the Hundies concerned on the pretext that consequent upon the coming into force of the Coking Coal Mines (Emergency provisions) Ordinance, 1971 on 16-10-1971 their accounts with the bankers pertaining to coking coal mines stood frozen rendering them helpless in the matter of retirement of the plaintiffs Hundies. It is further alleged that the Nationalisation of the coking coal mines under the Coking Mines (Nationalisation) Act, 1972, however, does not absolve the defendants from the liabilities to the plaintiffs under the said Hundies. Further case of the plaintiffs is that the plaintiffs, however, preferred their claim before the Commissioner of payment under the provisions of the Coking Coal Mines (Nationalisation) Act, 1972 and their claim applications are still pending and they apprehend that there would be inordinate delay in the disposal of the numerous applications lodged by the claimants before the said Commissioner and further the total amount of the money credited to the account of the Coking Coal Mines concerned at the disposal of the Commissioner of payments for disbursement being too meagre and insufficient to meet the total amount of all the claims preferred, the prospect of the plaintiffs dues being realised from the Commissioner appears to be too slender and remote and thus the plaintiffs cannot wait indefinitely and get their claim time barred and hence the plaintiffs had filed the present suit. It is further alleged that the plaintiffs shall withdraw their claim applications pending before the Commissioner if their dues are paid In the meanwhile by the defendants and conversely,, the plaintiffs will give due credit to the defendants for any payment that may be received from the Commissioner of payments.;