SBCFA NO.78/2006 INDIAN BANK V/S MOHD. SHAKEEL AND ORS. AND CFA NO.79/2006 - INDIAN BANK V/S MOHD. JAMEEL AND ORS. : JUDGMENT DTD.16.4.2008 1/5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL FIRST APPEAL NO.78/2006 Indian Bank versus 1. Mohd. Shakeel S/O Mohd. Ismail ....Defendant No.1 2. Mohd. Hanif 3. Mohd. Iqbal 4. Hasan Ali 5. Sadiq all sons of late Sh. Mohd. Younus. ...Defendants No.2 to 5 2. S.B. CIVIL FIRST APPEAL NO.79/2006 Indian Bank versus 1. Mohd. Jameel . ...Defendant No.1 2. Mohd. Hanif 3. Mohd. Iqbal 4. Hasan Ali 5. Sadiq all sons of late Sh. Mohd. Younus. ...Defendants No.2 to 5 PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Sanjay Kapoor, for the appellant. Mr.Mukesh Vyas, for the respondents. SBCFA NO.78/2006 INDIAN BANK V/S MOHD. SHAKEEL AND ORS. AND CFA NO.79/2006 - INDIAN BANK V/S MOHD. JAMEEL AND ORS. : JUDGMENT DTD.16.4.2008 2/5 DATE OF JUDGMENT : 16th April, 2008. JUDGMENT 1. These two appeals have been filed by the Indian Bank being aggrieved by the part of the judgment and decree passed by the learned Additional Dist. Judge (Fast track) No.3, Bikaner decreeing the suit for recovery filed by the plaintiff – Bank against the defendant No.1 Mohd. Shakeel. The said suit was filed under Order 34 C.P.C. and was tried summarily. Since the issue relating to the liability of the guarantor – defendant No.2 LRs. Of one Mohd. Hanif was decided against the plaintiff bank, being aggrieved of the same, the plaintiff – bank has filed the present appeals. 2. Mr. Sanjay Kapoor, the learned counsel for the appellant – Bank submitted that the learned trial Court has erred in misconstruing the effect of Ex.11, the document executed by the guarantor Mohd. Younus which was a “Letter from third party to the bank confirming extension of equitable mortgage.” The said letter was executed by the guarantor Mohd. Younus in favour of the plaintiff bank to the extent of Rs.3,00,000/-and equitable mortgage in the form of patta No.188 dated 15.7.1974 of immovable property of guarantor Mohd. Younus, SBCFA NO.78/2006 INDIAN BANK V/S MOHD. SHAKEEL AND ORS. AND CFA NO.79/2006 - INDIAN BANK V/S MOHD. JAMEEL AND ORS. : JUDGMENT DTD.16.4.2008 3/5 power of attorney dtd.28.2.1973 in favour of one Mazhar Hussain and the original sale-deed dated 23.3.21974 in favour of guarantor Mohd. Younus along with agreement-deed dated 23.10.2001 and agreement dtd.19.11.2001 were mortgaged with the plaintiff appellant bank vide Ex.11. He submitted that the learned trial Court in the impugned judgment dated 11.8.2005 has held that it appears that while executing the loan agreement since there were four loans sanctioned by the plaintiff – bank in favour of the four persons, namely, Mohd. Shakeel, defendant No.1, Mohd. Zameel, defendant No.1 in the connected appeal No.79/2006, Mohd. Saddiq and Mohd. Younus, the guarantor, therefore, the plaintiff – bank may have got executed Ex.11 by the said person Mohd. Younus without informing him about the contents of the same and therefore, on the basis of said Ex.11, he could not be held bound by his guarantee for said loan disbursed by the plaintiff – bank to the defendant No.1 in both these appeals. He submitted that there was no basis for disbelieving the said document Ex.11 on the part of the learned trial Court, though the defendants did not even appear in the witness box to disprove the said document in any manner. In the cross-examination by the counsel for the defendants also of the plaintiff Bank's witnesses who appeared before SBCFA NO.78/2006 INDIAN BANK V/S MOHD. SHAKEEL AND ORS. AND CFA NO.79/2006 - INDIAN BANK V/S MOHD. JAMEEL AND ORS. : JUDGMENT DTD.16.4.2008 4/5 the learned trial Court, the said documents have been duly proved by the plaintiff – bank. He, therefore, prayed for setting aside that impugned part of the judgment of the learned trial Court. 3. Mr. Mukesh Vyas, the learned counsel appearing for the respondents – defendants on the other hand urged that Ex.11 could not be made basis for holding guarantor Mohd. Younus responsible for loan amount disbursed to the defendant No.1 and since the suit of the bank has already been decreed against the defendant No.1, guarantor cannot be held responsible. 4. I have heard the learned counsels for the parties and perused the record. 5. There appears to be no basis for ignoring or disbelieving the document Ex.11 executed by the defendant No.2, Mohd. Younus. He not only executed Ex.11, letter of extension of equitable mortgage in favour of the Bank but also executed an agreement of guarantee itself vide Ex.5. Merely because separate details of three other loan accounts besides the loan taken by the guarantor Mohd. Younus SBCFA NO.78/2006 INDIAN BANK V/S MOHD. SHAKEEL AND ORS. AND CFA NO.79/2006 - INDIAN BANK V/S MOHD. JAMEEL AND ORS. : JUDGMENT DTD.16.4.2008 5/5 himself are not separately specified in the said Ex.11 letter dtd.30.112.2001, that cannot lead to the conclusion that said document might have been got executed by the plaintiff – Bank without informing the contents of the same to the executor, the guarantor Mr. Mohd. Younus. There appears to be no basis for this presumption drawn by the learned trial Court about the said document Ex.11. The learned trial Court also appears to have ignored the effect and impact of the agreement of guarantee itself in Ex.5. Since in both the decrees, the documents Ex.5 and 11 stood proved by the plaintiff – bank, there was no reason to absolve the guarantor as has been done by the learned trial Court in the impugned judgment dated 12.8.2005. 6. Consequently, these appeals are allowed and the impugned judgment dtd.12.8.2005 to the extent it absolves the guarantor defendant No.2 Mohd. Younus who is now represented through his LRs. is quashed and set aside and the decree as passed by the learned trial Court shall be enforceable against both, the defendant No.1 as well as defendant No.2. No order as to costs. (Dr.VINEET KOTHARI)J. Item No. Ss/-