STATE BANK OF BIKANER & JAIPUR Vs. G P GOYAL

JUDGEMENT

(1.) THE appellant-State Bank of Bikaner and Jaipur has come forward with this appeal against the final order passed by the Presiding Officer, Debts Recovery Tribunal, Jaipur (hereinafter referred to as DRT), dated 18.12.2000 in State Bank of Bikaner and Jaipur v. Sirohi Cement Ltd. and Ors. (O.A. No. 473/96 renumbered as O.A. 476/96). By this order, the learned Presiding Officer of the DRT, Jaipur held that the suit for the recovery of money against the 4th defendant (the first respondent herein) is not maintainable and is time-barred and, therefore, dismissed the claim of the appellant Bank as against the said 4th defendant.

(2.) Service on the respondents in this appeal has been effected by substituted service, i.e. publication in the newspaper. None has appeared on behalf of the respondents. Therefore, arguments of the learned Counsel for the appellant have been heard.

(3.) BUT the 4th defendant, who had remained ex parte, thereafter filed an application to set aside the order passed against him, which was accepted, and thereafter the 4th defendant filed his reply to the O.A. In his reply, the 4th defendant denied his liability to pay the amount on the basis of the guarantee executed by him, though, he admitted that he had executed the guarantee deed. According to the 4th defendant, the first defendant-company, before taking any loan from the Bank did not pass any resolution and, therefore, liability cannot be fastened upon him. The 4th defendant also pleaded that the loan of Rs. 4 lakhs was sanctioned on 3.3.1987, but, at the time when the limit was enhanced, the Bank wrote a letter to the 1st defendant for which he (4th defendant) had replied that he was not responsible for the loan. The 4th defendant pleaded that inasmuch as he has sent this letter dated 20.1.1987 disowning the liability to pay the amount, the suit cannot be filed thereafter. According to the 4th defendant, since a new agreement was executed on 20.1.1988 there occurred a variation of the contract and, therefore, also he (the 4th defendant) stood discharged from the liability. The learned Presiding Officer of the DRT accepted the contention put forward by the 4th defendant that there has been a variation of the contract and, therefore, the 4th defendant stood discharged from his liability to pay the amount, and also held that the claim was barred by limitation. Therefore, as against the 4th defendant, the Presiding Officer of the DRT dismissed the claim by order dated 18.12.2000.