{"id":104377,"date":"2005-12-14T00:00:00","date_gmt":"2005-12-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005"},"modified":"2017-06-06T06:46:12","modified_gmt":"2017-06-06T01:16:12","slug":"central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","title":{"rendered":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Central Bank Of India vs Antony Hardware Mart on 14 December, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 14\/12\/2005 \n\nCORAM   \n\nTHE HON'BLE MR. JUSTICE P.D.DINAKARAN         \nAND  \nTHE HON'BLE MR. JUSTICE K.MOHAN RAM         \n\nA.S.No.834 of 1989 \nand \nA.S.No.569 of 1989 \n\nCentral Bank of India\n(A Nationalised Bank)                           ..   Appellant in\nRep. by its Manager,                            A.S.No.834 of 1989\nN.Gururajan                                             &\nNo.1, Alaiamman                                 Respondent in\nKovil Street,                           ...     A.S.No.569 of 1989\nTeynampet, \nChennai - 600 018 \n\n-Vs-\n\nAntony Hardware Mart, \nRep. by its Proprietor,\nK.Subbiah, \n113,Eldams Road,  \nTeynampet,                              ..    Respondent in\nChennai - 600 018.                            A.S.No.834 of 1989\n\nAntony Hardware Mart, \nRep. by its Proprietor,\nS.Viswanathan, \n113, Eldams Road,  \nTeynampet,                              ..   Appellant in\nChennai - 600 018.                      A.S.No.569 of 1989\n\n        Appeals against the judgment and decree dated 28.03.1988  made  in  O.\nS.No.8937  of  1986  on the file of the Learned XV Assistant Judge, City Civil\nCourt, Madras.\n\n!For Appellant  :  Mr.  K.Ramakrishna Reddy for\n                M\/s.  Kalpa Reddy\n\n^For Respondent :  Mr.  Badri Narayanan for\n                M\/s.  Sampathkumar Associates.\n\n:J U D G M E N T \n<\/pre>\n
(Judgment of the Court was delivered by K.Mohan Ram, J.) <\/p>\n
        The defendant in  O.S.No.8937  of  1986  on  the  file  of  the  XV-th
\nAssistant  Judge  City  Civil  Court, Madras is the appellant in A.S.No.569 of
\n1989.  The plaintiff in O.S.No.8937 of 1986 on the file of the same  Court  is
\nthe appellant in A.S.No.834 of 1989.\n<\/p>\n
        2.   For  the  sake of convenience, the parties are referred to as per
\ntheir ranking in the suit.\n<\/p>\n
        3.  The plaintiff filed a suit for decree against the defendant for  a
\nsum  of  Rs.39,030.90  with  interest at 17.5% per annum from the date of suit
\ntill date of realisation on the  basis  of  the  following  averments  in  the
\nplaint:\n<\/p>\n
        The plaintiff is a Nationalised Bank.  The defendant is the proprietor
\nof M\/s.  Antony Hardware, at No.113 Eldams Road, Teynampet, Chennai  600 018.
\nAt the request of one Thiru S.Kandaswamy, proprietor of  M\/s.Ramesh  Textiles,
\nEldams  Road,  Teynampet, Chennai  600 018, the plaintiff granted cash credit
\nfacility to him to an extent of Rs.30,000\/-  on  23.08.1985.    The  defendant
\nstood as  a  guarantor  for  repayment  of the dues of S.Kandaswamy.  The said
\nS.Kandaswamy was declared  as  an  insolvent  by  the  High  Court  Madras  in
\nI.P.No.23 of 1986.  The defendant had executed a guarantee on 23.08.1985.\n<\/p>\n
        4.  The defendant filed a written statement containing  the  following
\ndefence:\n<\/p>\n
        The suit as framed is not maintainable in law.    The  grant  of  cash
\ncredit facility to M\/s.  Ramesh Textiles is not known to the defendant and the
\ndefendant  has  not  stood  as  a  guarantor for repayment of the dues of said
\nS.Kandaswamy.  The defendant had never been in acquaintance with S.Kandaswamy,
\nProprietor, Ramesh Textiles, Eldams  Road,  Chennai  18.    The  defendant  is
\nunaware of the I.P.  proceedings against the said S.Kandaswamy.  The defendant
\ndoes not  owe  to  the plaintiff any sum much less a sum of Rs.39,030.90.  The
\ndefendant has not  stood  or  executed  any  guarantee  on  23.08.1985.    The
\ndefendant  perused  the  second document in Court and emphatically states that
\nthe signature found in the letter of guarantee is not his  signature.    There
\nhad been  no  notice whatsoever from the plaintiff to the defendant.  Since as
\nper the plaint averment, the cash  credit  facility  is  on  hypothecation  of
\ngoods,  the first charge is over the hypothecated goods in favour of the Bank.
\nTherefore, in the case of insolvency proceedings, the Bank would  be  entitled
\nto recover  the  entire  sum from the goods.  On the above said pleadings, the
\ndefendant prayed for the dismissal of the suit.\n<\/p>\n
        5.   On the above said pleadings, the Trial Court framed the following
\nissues, viz.,\n<\/p>\n
i)Whether the plaintiff is entitled for the suit claim?\n<\/p>\n
ii)Whether the suit as framed is maintainable?\n<\/p>\n
iii)To what relief the parties are entitled to?\n<\/p>\n
During Trial, the plaintiff examined one Gururajan as  P.W.1  and  got  marked
\nExs.A-1 to  A-5.    On  the  side  of the defendant, the defendant got himself
\nexamined as D.W.1, but did not mark any documents.  On a consideration of  the
\noral  and  documentary  evidence adduced in the case, the Trial Court passed a
\nconditional decree in favour of the plaintiff in the following terms:-\n<\/p>\n
i)The defendant is liable to pay a sum of Rs.39,030.90 with 17.5% interest per
\nannum there on, from 01.12.1986 till the date of payment of the decree amount.\n<\/p>\n
ii)The defendant  should  pay  a  sum  of  Rs.4,838.25  towards  cost  to  the
\nplaintiff.\n<\/p>\n
iii)The  sum  of Rs.5,797\/- paid by the defendant after the filing of the suit
\nshould be credited.\n<\/p>\n
iv)However, the decree can  be  executed  against  the  defendant  only  after
\nproceeding  against  the principal debtor S.Kandaswamy, his hypothecated goods
\nand his other properties and that too  if  the  decree  amount  could  not  be
\nrealized.\n<\/p>\n
        6.   The  defendant  aggrieved by the above said decree, has filed the
\nappeal in A.S.No.569 of 1989.  The plaintiff being aggrieved by  ClauseIV  of
\nthe  decree  has  filed the appeal in A.S.No.834 of 1989, since both the above
\nsaid appeals arise out of the judgment and decree dated 28.03.1988  passed  in
\nO.S.No.8937 of 1986, a common judgment is being passed.\n<\/p>\n
        7.  Mr.    K.Ramakrishna Reddy, learned counsel for the defendant made
\nthe following submissions:\n<\/p>\n
        Ex.A-2 guarantee has not been executed by the defendant.    Since  the
\ndefendant  had  denied  his  signature  in  Ex.A-2,  the  burden is not on the
\ndefendant but it is on the plaintiff to prove  that  the  signature  found  in
\nEx.A-2 as  that  of the defendant.  The Trial Court ought not to have compared
\nthe signature by itself.  Ex.A-2 is only meant for future advances and  it  is
\nnot in respect of existing liability of the principal debtor.  The contents of
\nEx.A-2 were not read and explained to the defendant.  Ex.A-2 is a printed form
\nwherein, unnecessary  words have not been struck off.  Regarding the admission
\nof D.W.1 about the signature in Ex.A-5, the  learned  counsel  submitted  that
\nD.W.1  has  deposed  without understanding the question put to him and as such
\nthe admission of D.W.1 should not be relied upon and the loan  sanction  order
\nhas not been produced.  Learned counsel further submitted that the Trial Court
\nerred  in  comparing  the  signatures  by  itself  without getting an expert’s
\nopinion from the hand writing expert.  On the above submissions,  the  learned
\ncounsel sought for setting aside the judgment and decree of the Trial Court.\n<\/p>\n
        8.    Learned  counsel  for  the  plaintiff-Bank  made  the  following
\nsubmissions:\n<\/p>\n
        The  Trial  Court  is entitled to compare the disputed signatures with
\nthe admitted signatures under Section 73 of the Indian Evidence  Act.    D.W.1
\nhas  admitted  his  signature  in  Ex.A-5  and this Court, as a final Court of
\nfacts, can  compare  the  disputed  signature  in  Ex.A-2  with  the  admitted
\nsignature in  Ex.A-5.    It  is  not necessary that in all the cases an expert
\nopinion should be obtained.  Ex.A-5 handed over by the defendant, contains the
\ndetails of his assets and properties and  nobody  else  except  the  defendant
\ncould  have  furnished  those details contained in Ex.A-5 and that itself will
\nprove the falsity of the defence taken by the defendant.  The Trial Court  has
\nconsidered  all  the aspects and has rightly decreed the suit, but Clause  IV
\nof the decree is unsustainable, since it is settled law that the plaintiff can
\nproceed against the Guarantor even without proceeding  against  the  principal
\ndebtor and on that ground, clause IV of the decree should be set-aside and the
\nappeal filed by the defendant has to be dismissed.\n<\/p>\n
        9.   At  the  outset,  we  want  to point out that the Trial Court has
\ncommitted an error in comparing the signatures in Ex.A-2 and Ex.A-5  with  the
\nadmitted signature of the defendant in the Vakalath and written statement.  In
\nthe judgment reported in 1999 (3) C.T.C.  156 ( Somasundaram Vs.  Palani) this
\nCourt has held as follows:\n<\/p>\n
Even though the Court may have the power to compare the signatures, there must
\nbe some admitted  signature  of  the  defendant,  on  the  basis  of  which  a
\ncomparision will  have  to be made.  In this case, a comparision has been made
\non the basis of signatures affixed by defendant in the  vakalath  and  written
\nstatement, which are documents that have come into existence after the dispute
\narose,  and  after  the promissory note in question was filed into Court along
\nwith plaint.  A comparision should not have been made on the  basis  of  those
\nsignatures.   If  that  be  so, it has to be held that the comparision was not
\nmade in accordance with law, even though the Court  is  empowered  to  make  a
\ncomparison.\n<\/p>\n
It  is  settled  law that the disputed signature can be compared with admitted
\nsignature, which were contemporaneous and not  with  the  admitted  signatures
\nobtained subsequent  to the date of the disputed signature.  By lapse of time,
\nthere may be some difference in the signature of a person.  Only based on that
\nprinciple, the above said judgment has been rendered  by  the  learned  single
\nJudge of  this  Court.    Therefore,  the  Trial  Court erred in comparing the
\nsignatures in Ex.A-2 and Ex.A-5 with the signatures found in the Vakalath  and
\nwritten statement of the defendant.\n<\/p>\n
        10.  The Trial Court has pointed out that the Manager of the Bank, who
\nwrote  Ex.A-2  has  not  been  examined and that itself may not be a ground to
\ndisbelieve the case of the plaintiff, if there are other evidence to prove the
\ncase of the plaintiff.  The Trial Court has observed that when  the  defendant
\nhad  denied  his signature in Ex.A-2, it is the defendants duty to summon his
\nadmitted signature from the Indian Bank where he is  holding  an  account  and
\nprove that  the signature in Ex.A-2 is not his signature.  This observation of
\nthe Trial Court is wrong.  Since, it is the duty of the plaintiff to establish
\nhis case, the Trial Court has erred in casting the burden  on  the  defendant.
\nNow,  we have to see whether the plaintiff has proved his case and whether the
\ncontentions raised by the learned counsel for the defendant are acceptable.\n<\/p>\n
        11.  Learned counsel for the defendant relied upon a judgment reported
\nin 2003 (11) S.C.C.  241, (Pawan Kumar Vs.    State  of  Haryana).    In  that
\njudgment, the Honourable Supreme Court in paragraph no.8 has held as follows:
\nThe  next circumstance which has been alleged against the accused is a letter
\nwritten by the appellant to his mother.  So far as this letter  is  concerned,
\nit  has been admitted in evidence to show that the appellant had confessed his
\nguilt.  But in that letter,  there  is  no  admission  whatsoever,  much  less
\nconfession,  in  relation  to  the complicity of the appellant with the crime.
\nThat apart, P.W.10, who has proved this letter, was suggested  that  the  same
\nwas  forged  and  fabricated  in  which  eventuality it was incumbent upon the
\nprosecution to prove the handwriting and signature of the appellant thereon by
\nsending it to the handwriting expert, but no such step was taken  for  reasons
\nbest known  to  the  prosecution.    Thus, this circumstance also could not be
\nproved.”\n<\/p>\n
Relying upon the above said judgment, the learned counsel  for  the  defendant
\ncontents  that  when the signature in Ex.A-2 is disputed by the defendant, the
\nplaintiff ought to have taken steps to send Ex.A-2 to a handwriting expert for
\ngetting his opinion regarding the signature in Ex.A-2.   Since  the  plaintiff
\nhas  not  take n any steps to get the expert’s opinion, it should be held that
\nthe plaintiff has not proved that the signature found in Ex.A-2 is that of the
\ndefendant.  The above said judgment has been rendered in an appeal arising out
\nof a criminal trial relating to an offence under Section 302 I.P.C.  where the
\nprinciple of proving beyond reasonable  doubt  is  applicable,  but  in  civil
\ncases, the  proof  beyond  reasonable  doubt  is  not  necessary.   But if the
\nplaintiff is able to establish preponderant possibilities in his favour,  then
\nthis Court  may  grant a decree in his favour.  As laid down by the Apex Court
\nin several other judgments, the hand writing experts opinion is not  the  only
\nmode by which the signature can be proved.  But there are other modes by which
\nthe disputed signature can be proved.  Hence we are of the view that the above
\nsaid judgment will not further the case of the plaintiff.\n<\/p>\n
        12.  Learned counsel for the plaintiff\/appellant relied  upon  another
\njudgment  of the Apex Court reported in 1992 (3) SCC 701 (State of Maharashtra
\nthro CBI Vs.  Sukhdev Singh @ Sukha and Others).  In paragraph 32 at page 730,
\nthe Supreme Court has held as follows:\n<\/p>\n
It  was  then  submitted,  relying  on Section 73 of the Evidence Act, that we
\nshould compare the disputed material with the specimen\/ admitted  material  on
\nrecord and  reach  our  own  conclusion.    There  is  no  doubt that the said
\nprovision empowers the Court to see for itself whether on a comparison of  the
\ntwo  sets of writing\/signature, it can safely be concluded with the assistance
\nof the expert opinion that the disputed writings are in the handwriting of the
\naccused as alleged.  For this purpose we were shown the enlarged copies of the
\ntwo sets of writings but we are afraid we did not  consider  it  advisable  to
\nventure  a  conclusion  based on such comparison having regard to the state of
\nevidence on record in regard to the specimen\/admitted writings of the  Accused
\n1 and  2.  Although the section specifically empowers the Court to compare the
\ndisputed writings with the specimen\/admitted writings  shown  to  be  genuine,
\nprudence  demands  that  the  Court  should  be extremely slow in venturing an
\nopinion on the basis of mere comparison, more so, when the quality of evidence
\nin respect of specimen\/admitted writings is not of high  standard.    We  have
\nalready  pointed  out  the  state of evidence as regards the specimen\/admitted
\nwritings earlier and we think it would be dangerous to stake  any  opinion  on
\nthe basis  of  mere comparison.  We have, therefore, refrained from basing our
\nconclusion by comparing  the  disputed  writings  with  the  specimen\/admitted
\nwritings.\n<\/p>\n
Relying on the above said passage, learned counsel submitted that neither  the
\nTrial  Court  nor  the  Apex  Court  had  endeavoured  to compare the disputed
\nsignature with the admitted signature in the absence of an  expert’s  opinion.
\nIf  we  carefully  read  the  above  said  passage,  it will be clear that the
\nHonourable Supreme Court refused to compare  the  signature  by  observing  as
\nfollows:\n<\/p>\n
We  did  not  consider  it  advisable  to  venture  a conclusion based on such
\ncomparison having regard to the state of evidence on record in regard  to  the
\nspecimen\/admitted writings  of  the  accused  1  and 2.  Although, the section
\nspecifically empowers the Court to compare  the  disputed  writings  with  the
\nspecimen\/admitted  writings  shown  to  be  genuine, prudence demands that the
\nCourt should be extremely slow in venturing an opinion on the  basis  of  mere
\ncomparison,  more  so,  when  the  quality of evidence in respect of specimen\/
\nadmitted writings is not of high standard.  We have already  pointed  out  the
\nstate  of  evidence as regards the specimen \/ admitted writings earlier and we
\nthink it would be  dangerous  to  take  any  opinion  on  the  basis  of  mere
\ncomparison.( Italics supplied).\n<\/p>\n
In  that  case,  the  Honourable  Supreme  Court  has held that the quality of
\nevidence in respect of specimen \/ admitted writings is not  of  high  standard
\nand  hence  refrained  from comparing the disputed signature with the admitted
\nsignature.  But in the case on hand, the position is different, which we  will
\npoint out little later.\n<\/p>\n
13.   In  this  context, we would like to refer to a judgment reported in 1999
\n(6) SCC 104 wherein, the Supreme Court has held that when the defendant denies
\nhis signature in all the documents shown to him, the Trial  Court  could  have
\ncompared  the  signatures  of  the  defendant as provided in Section 73 of the
\nIndian Evidence Act.  In 2003 (3) SCC 583 (Lalit popli Vs.   Canara  Bank  and
\nOthers), the Supreme Court has held as follows:\n<\/p>\n
Irrespective  of  an  opinion of the handwriting expert, the Court can compare
\nthe admitted writing with the disputed writing and come to its own independent
\nconclusion.  Such exercise of comparison is permissible under  Section  73  of
\nthe Evidence  Act.    Ordinarily,  Sections  45 and 73 of the Evidence Act are
\ncomplementary to each other.  Evidence  of  handwriting  expert  need  not  be
\ninvariably corroborated.  It is for the Court to decide whether to accept such
\nan uncorroborated  evidence  or  not.   It is clear that even when an expert’s
\nevidence is not there, the Court has power to compare the writings and  decide
\nthe matter.  (emphasize supplied).\n<\/p>\n
14.   In  the judgment reported in 2001 (2) Law Weekly 334, the Division Bench
\nof this Court, by relying upon a  judgment  of  the  Supreme  Court  of  India
\nreported in  1998  (2)  SCC  192  (Gulsar Ali Vs.  State of H.P.), has held as
\nfollows:\n<\/p>\n
In  order  to  prove the identity of the handwriting any mode not forbidden by
\nlaw can be resorted to.  Two modes are indicated by law in Sections 45 and  47
\nof the  Evidence  Act.    Section  45  of the Act permits expert opinion to be
\nregarded as relevant evidence and Section 47 permits  opinion  of  any  person
\nacquainted with such handwriting to be regarded as relevant evidence.  In this
\nregard the  following conclusion of the Supreme Court in Gulzar Ali Vs.  State
\nof H.P.  in 1998 (2) S.C.C.  192 is relevant.  Their lordships have held  that
\nit  cannot  be  said  that  identity  of  handwriting  of  a  document  can be
\nestablished only by resorting to one of those two sections, namely Sections 45
\nand 47″.\n<\/p>\n
The  Division Bench has further held that it is clear that though normally the
\nCourt should not take upon itself the responsibility of comparing the disputed
\nsignature with that of  the  admitted  signature,  undoubtedly  the  Court  is
\ncompetent  to  compare  the  disputed signature with the admitted signature in
\nview of Section 73 of the Act.  However, if the Court has  any  doubt,  it  is
\nincumbent on it to leave the matter to the opinion of an expert.\n<\/p>\n
15.  In  this  context it is useful to refer to the evidence of D.W.1.  In his
\ncross-examination D.W.1 has stated as follows:\n<\/p>\n
(Vernacular Portion deleted)
\nHaving admitted his signature in Ex.A-5, in the later part of  his  deposition
\nD.W.1 has stated as follows:\n<\/p>\n
(Vernacular Portion deleted)<\/p>\n
This retraction  on the part of D.W.1 could only be an after thought.  When he
\nhas categorically admitted his signature  in  Ex.A-5  and  when  he  has  also
\nadmitted  the  contents in Ex.A-5 stating that he has given the details of his
\nproperties in Ex.A-5, D.W.1 has chosen to go back on his admission.    He  has
\ngone to  the  extent of denying his signature in the vakalath.  The contention
\nof the learned counsel for the appellant that D.W.1 has admitted his signature
\nin Ex.A-5 without properly understanding the question put  to  him  cannot  be
\naccepted.   In  this  context,  we  want to refer to a judgment of the Supreme
\nCourt reported in A.I.R.1981 S.C.  2085 (Ramji Dayawala & Sons (P)  Ltd.,  Vs.
\nInvest Import), wherein the Honourable Supreme Court has held as follows:\n<\/p>\n
        Admission, unless explained, furnishes the best evidence.\n<\/p>\n
If  we apply the above said law laid down by the Supreme Court to the facts of
\nthis case, the admission made by D.W.1 is the best evidence as far  as  Ex.A-5
\nis concerned.  As  held  in  1999  (6)  S.C.C.    104 (K.S.  Satyanarayana Vs.
\nV.R.Narayana Rao), in this case also the defendant was trying to  get  out  of
\nthe  situation  by  contradicting  his  signature  found  in  Ex.A-5  with his
\nsignature in the vakalath, in order to defeat the claim of the plaintiff.   In
\nsuch  a  situation, the Supreme Court has held that the Trial Court could have
\nalso compared the signatures of the defendant as provided in Section 73 of the
\nIndian Evidence Act.  In this case, the Trial Court, instead of comparing  the
\ndisputed  signature  in  Ex.A-2  with  the signature found in the vakalath and
\nwritten  statement,  should  have  compared  the  admitted  signature  of  the
\ndefendant found  in  Ex.A-5  with  the disputed signature found in Ex.A-2.  We
\ncompared the disputed signature in  Ex.A-2  with  the  admitted  signature  in
\nEx.A-5 and we do not find any dissimilarity between two signatures.  We are of
\nthe  view that the signature found in Ex.A-2 and the signature found in Ex.A-5
\nare similar and is that of the same person.\n<\/p>\n
        16.  Apart from  the  fact  that  Ex.A-2  has  been  executed  by  the
\ndefendant,  he  has  also  handed  over  Ex.A-5  containing the details of his
\nproperties and assets.  Nobody else could have furnished those details  except
\nthe defendant.    The  contention  of  the  defendant  that it could have been
\ncreated by the Bank cannot be accepted.  There is absolutely  no  evidence  on
\nrecord to  hold  that  the  Bank  has  created  Ex.A-2 and Ex.A-5.  We fail to
\nunderstand as to why the Bank should create a document against the interest of
\nthe defendant.  Exs.A-5 and A-2 clearly establish that the defendant has stood
\nas a guarantor for the loan advanced to S.Kandaswamy .\n<\/p>\n
        17.  Learned counsel for the defendant contents that  Ex.A-2  was  not
\nread  over  and  explained to the defendant and it is a printed form and it is
\nmeant for future advances only.  According to  the  learned  counsel  for  the
\ndefendant  there  is no evidence to show that after 23.08.19 85 any amount was
\nadvanced as loan to the principal debtor.  Learned counsel drew our  attention
\nto Ex.A-2.  The first few lines of Ex.A-2 reads as follows:\n<\/p>\n
        In  consideration  of  order  at  my  \/  our request making advance or
\notherwise given credit to Ramesh Textiles,  hereinafter  referred  to  as  the
\nmember.\n<\/p>\n
Relying  upon  the  above passage the leaned counsel contents that even if any
\nguarantee is proved to have been given by the defendant, it will  be  only  in
\nrespect  of  future  advances to be made to S.Kandaswamy and not in respect of
\nany existing liability.  We  are  unable  to  accept  the  same.    The  words
\notherwise  given  credit  to  Ramesh Textiles, hereinafter referred to as the
\nprincipal, will indicate that the  guarantee  is  also  in  respect  of  loan
\nalready given to Ramesh Textiles, namely, the principal debtor.\n<\/p>\n
        18.   The  contention  of  the  learned counsel for the defendant that
\nsince no notice has been issued by the plaintiff to the defendant calling upon
\nhim to pay the loan and that will raise a doubt regarding the  genuineness  of
\nEx.A-2, cannot be accepted.  It is not mandatory to issue notice in all cases.
\nThe  plaintiff has examined its manager as P.W.1 and nothing has been elicited
\nin his cross- examination to discredit his evidence.  He has spoken about  the
\nloan  transaction  between  the  Bank, the principal debtor and the defendant.
\nWhen we have found that Ex.A-2 guarantee has been executed by  the  defendant,
\nthe natural consequence is to hold him liable for the suit claim, for which he
\nstood as  a  guarantor.  It is not disputed that the principal debtor has been
\nadjudged as an insolvent by  the  High  Court  in  I.P.No.23  of  1986.    The
\nhypothecated  goods  were sold in the insolvency proceedings and only a sum of
\nRs.5,792\/- has been given to the plaintiff.    The  Trial  Court  has  rightly
\ndirected  that  the  said  amount  should  be  given credit towards the decree
\namount.  The Trial Court has rightly accepted Exs.A-5 and A-2.  Therefore,  we
\nhold that the defendant is liable for the suit claim to the plaintiff.\n<\/p>\n
        19.   We  now  take  up  A.S.No.834  of  1989  filed by the plaintiff.
\nLearned counsel for the plaintiff relying upon a judgment of the Supreme Court
\nreported in A.I.R.1992 S.C.  1740, submitted that Clause IV of the  decree  of
\nthe Appellant  Court  is liable to be set aside.  In that judgment the Supreme
\nCourt has held as follows:\n<\/p>\n
Section  128 of the Indian Contract Act itself provides that ‘the liability of
\nthe surety is co-extensive with that of the principal  debtor,  unless  it  is
\notherwise provided  by  the  contract’.   If on principle a guarantor could be
\nsued without even suing the principal debtor there is no reason, even  if  the
\ndecretal  amount is covered by the mortgage decree, to force the decree-holder
\nto proceed against the mortgaged property first and then  to  proceed  against
\nthe guarantor”.\n<\/p>\n
In  view of the provisions contained in Section 128 of the Indian Contract Act
\nand in the light of the law laid down by the Apex  Court  in  A.I.R.1992  S.C.
\n1740 Clause IV of the decree is liable to be setaside and accordingly Clause –
\nIV of  the decree is hereby set-aside.  The Trial Court erred in directing the
\nplaintiff to first proceed against the principal debtor and his properties and
\nthen to proceed  against  the  defendant  if  the  suit  claim  could  not  be
\nrecovered.   This  part of the decree is against law and hence it is liable to
\nbe set-aside and accordingly it is set-aside.    Consequently,  A.S.No.834  of
\n1989  filed  by  the  plaintiff is allowed and A.S.No.569 of 1989 filed by the
\ndefendant is dismissed; however there will be no  order  as  to  costs.    The
\ndecree of the trial court shall stand modified accordingly.\n<\/p>\n
srk<\/p>\n
To,
\nThe Learned XV Assistant Judge,
\nCity Civil Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14\/12\/2005 CORAM THE HON’BLE MR. JUSTICE P.D.DINAKARAN AND THE HON’BLE MR. JUSTICE K.MOHAN RAM A.S.No.834 of 1989 and A.S.No.569 of 1989 Central Bank of India (A Nationalised Bank) .. Appellant in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-104377","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nCentral Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2005-12-13T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-06-06T01:16:12+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"21 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005\",\"datePublished\":\"2005-12-13T18:30:00+00:00\",\"dateModified\":\"2017-06-06T01:16:12+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\"},\"wordCount\":4067,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Madras High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\",\"name\":\"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2005-12-13T18:30:00+00:00\",\"dateModified\":\"2017-06-06T01:16:12+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","og_locale":"en_US","og_type":"article","og_title":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2005-12-13T18:30:00+00:00","article_modified_time":"2017-06-06T01:16:12+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"21 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005","datePublished":"2005-12-13T18:30:00+00:00","dateModified":"2017-06-06T01:16:12+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005"},"wordCount":4067,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["High Court","Madras High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","url":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005","name":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2005-12-13T18:30:00+00:00","dateModified":"2017-06-06T01:16:12+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-antony-hardware-mart-on-14-december-2005#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Central Bank Of India vs Antony Hardware Mart on 14 December, 2005"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/104377","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=104377"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/104377\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=104377"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=104377"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=104377"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}