United Commercial Bank Ltd. vs Hajihusain Kasambhai and 1

Honourable Mr. Justice K.S. Jhaveri

This appeal is directed against the judgment and order passed by the learned 2nd Extra Asst. Judge, Bharuch in Regular Civil Appeal No. 116/1985 dated 07.10.1988 whereby, the said appeal was allowed and the judgment and decree passed by the learned 2nd Jt. Civil Judge (S.D.), Bharuch in Regular Civil Suit No. 123/1980 dated 27.03.1985 was quashed and set aside.

The facts in brief are that the appellant herein, original plaintiff, is a nationalized bank having its Head Office at Kolkata, W.B. and one of its Branches at Bharuch. The appellant-bank had advanced a loan to (deceased) respondent No. 1 herein, original defendant No. 1. Original defendants No. 2 to 4 stood as surety for the said loan.

It is the case of the appellant-bank that (deceased) respondent No. 1 did not pay the debt in time and an amount of Rs. 14,307.27 was due from him. Therefore, a suit being R.C.S. No. 123/1980 was filed against the defendants for recovery of the said amount with interest. The said suit was decreed in favour of the appellant vide judgment and decree dated 27.03.1985.

Being aggrieved by the said judgment and decree, the original defendants No. 1 & 2 preferred R.C.A. No. 116/1985 before the lower appellate Court, which came to be allowed vide judgment and order dated 07.10.1988. Hence, this appeal.

Heard learned counsel for the respective parties and perused the documents on record. From the documents Exhibits - 70, 72, 73, 74 & 76 that were produced on record of the trial Court, it appears that loan was granted to defendant No. 2 and not defendant No. 1 and therefore, the suit against defendant No. 1 is not maintainable. The suit was filed on 16.04.1980 and the documents in question were signed by defendant No. 1 and they are prior to 16.04.1977, which is the date from which the period of limitation is to be computed. The only document that brings the suit within limitation is the document Exhibit-97. But, the said document has not been executed by defendant No. 2. Hence, the suit filed against defendant No. 2 would be barred by limitation. Considering the above aspects, I am of the view that the lower appellate Court was completely justified in allowing the appeal and setting aside the judgment and decree of the trial Court. No substantial questions of law arise in this appeal for consideration of this Court u/s. 100 of the C.P.C.

For the foregoing reasons, the appeal is dismissed.