B.N. Kirpal ORDER
1. The main question which arises in this appeal by special leave is whether the suit for recovery of money filed by the appellant bank was properly instituted.
2. The appellant's branch at Ambala Cantt. had instituted a suit in the Court of Sub-ordinate Judge, Ambala Cantt. for recovery of Rs. 1,40,553.91 from the respondent. The case of the appellant was that on 12th April, 1984 a sum of Rs. 50,000 was advanced as loan to respondent No. 1 for the purposes of his business and on that date he had executed a demand promissory note, hypothecation of goods agreement and other documents. Respondent No. 2 and one Sh. Suresh Kumar, husband of respondent No. 3 had stood as guarantors for the repayment of the loan. The respondents were stated to have agreed to pay interest at the rate of 18 per cent per annum with quarterly rests. When default in payment of the money was committed the aforesaid suit was filed for the recovery of the principal amount and the interest thereon. The sum total came to Rs. 1,40,553.91.
3. In the written statement filed by respondent No. 1 the plea which was taken was that he had never taken loan as alleged by the appellant bank and respondent No. 2 and Sh. Suresh Kumar had not executed any guarantee deed. It was, however, admitted that certain blank documents had been got signed but it was denied that the respondents had agreed to pay interest at the rate of 18 per cent per annum. He also took an additional plea challenging the authority of Sh. L.K. Rohatgi to sign and file the plaint on behalf of the appellant. Respondent No. 2 filed a separate written statement taking the pleas similar to the one which had been raised by respondent No. 1 in his written statement. A further plea which was taken by her was that her guarantee was limited to the extent of Rs. 50,000 and she was not liable to pay any more amount merely because, additional credit facilities may have been allowed to respondent No. 1. As the other guarantor - Sh. Suresh Kumar had died his widow, namely respondent No. 3 was impleaded as one of the defendants but as she did not appear the case against her proceeded ex parte. The appellant bank filed its replication wherein it denied the allegations contained in the written statement filed by respondents 1 and 2.
4. On the pleadings of the parties the following issues were framed:
1. Whether the plaint is duly signed and verified by a competent person? OPP
2. Whether the defendant No. 1 raised a loan of Rs. 50,000 from the plaintiff bank on 12.4.84 and executed a demand promissory note, hypothecation of goods agreement, letter of loan and other documents in favours of the plaintiff bank? OPP
3. Whether the defendants No. 2 and 3 stood as guarantors for the repayment of the loan and if so, what is the extent of their liability? OPP
4. What is the balance amount? OPP
5. Whether the plaintiff varied the terms of loan and if so, its effect qua the liabilities of defendants No. 2 and 3, Onus on Parties.
6. Whether the statement of account produced by the plaintiff is admissible in evidence? OPP
7. Whether the defendants agreed to pay interest if so, at what rate and to what amount? OPP
8. Whether the plaintiff has no cause of action? OPP
9. Relief.
5. The trial judge by his judgment dated 14th November, 1987 decided issue No. 1, 2 and 7 against the appellant. Issues 3, 4, 5 and 6 were held in the appel........