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SA/124/1989 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 124 of 1989
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
UNITED
COMMERCIAL BANK LTD. - Appellant(s)
Versus
HAJIHUSAIN
KASAMBHAI & 1 - Defendant(s)
=========================================================
Appearance :
MR
MK VAKHARIA for
Appellant(s) : 1,
ABATED for Defendant(s) : 1,
MR NK MAJMUDAR
for Defendant(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 30/06/2011
ORAL
JUDGMENT
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. For
the foregoing reasons, the appeal is dismissed.
[K.
S. JHAVERI, J.]
Pravin/*
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