THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.468 OF 1993 Dated. 25 -11-2010 Between: S.Bhoomaiah son of late Mallaiah …Appellant Vs. M/s.Silpa Finance and Investment Private Limited, rep. by its Manager Sana Venu and another ..Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.468 OF 1993 JUDGMENT The 2nd defendant in O.S.No.46 of 1989 on the file of the Court of Subordinate Judge, Karimnagar is the appellant herein. The 1st respondent herein is the plaintiff. The suit was filed for recovery of Rs.31,385/- on the allegation that the 2nd respondent who is the 1st defendant in the case has purchased Refrigerator and obtained a loan of Rs.15,000/- payable in twelve (12) instalments commencing from 22-04- 1985 and the appellant herein is the guarantor. The 1st defendant acknowledged the debt by a letter dated 20-01-1987 and both the defendants committed default in discharge of the debt and hence the suit. The 1st defendant remained ex parte and the appellant herein filed the written statement denying that he stood as a guarantor for the 1st defendant and did not execute the documents as pleaded by the plaintiff. He claims that he was not working as a Superintendent at Girls Junior College by the date of execution of alleged document and he was working as a Senior Assistant in SRR Government College. The name was wrongly described originally and subsequently it was amended and therefore there is no liability. The suit is also barred by time. On the basis of the above pleadings, the following issues were framed by the trial court:- 1. Whether the plaintiff is entitled for the suit claim as prayed for ? 2. Whether the defendant No.2 has not stood as guarantor to defendant No.1 and not executed any documents and not liable to pay the suit claim as contended by him? 3. Whether the suit is barred by limitation? 4. To what relief? On behalf of the plaintiff PWs.1 and 2 were examined and Exs.A-1 to A-8 were marked and on behalf of the defendants DWs.1 and 2 were examined and Ex.B-1 was marked. After considering the evidence on record, the learned Subordinate Judge, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. As no steps were taken against the 2nd respondent who is the 1st defendant, the appeal against him was dismissed. The points that arise for consideration are:- (1) Whether the appellant was a guarantor for the loan obtained by the 1st defendant and liable to pay the suit amount? (2) Whether the judgment and decree passed by the learned Subordinate Judge is legal and sustainable; and (3) To what relief? POINTS:- Since the appellant has denied the execution of documents and also the identity, the burden is on the plaintiff to prove the above facts. PW.1 who is the Executive Director of plaintiff-Company spoke about the transaction where both the defendants executed documents and thereafter demanding the appellant and the 1st defendant for discharging the debt. It is also stated by him that the appellant furnished the address of the 1st defendant where he could not be found. So also Exs.A-1 to A-6 are proved by the evidence of PWs.1 and 2. As against this evidence the appellant apart from denying his liability, sought to rely upon the evidence of DW.2, who is said to be the Principal of Junior College and he was examined to prove that the signatures in the official records of the 2nd defendant are not known to him but he did not file any such records. The fact remains that the appellant was working in the Junior College as claimed by the plaintiff. The lower court found that the evidence of this appellant is not reliable as he is denying the existence of the surroundings of the place where he was working. The lower court also accepted the version of the plaintiff that it is the appellant that has furnished the address of the 1st defendant. Therefore, it is quite clear that the appellant is not speaking truth and the lower court has rightly accepted the evidence of PWs.1 and 2. Further more, there is absolutely no reason given by the appellant as to why the plaintiff and 1st defendant should collude to bring into existence any documents against appellant. Therefore, I find that the appellant herein has executed the document as a guarantor as found by the lower court and his claim is not true. However, the counsel for the appellant pleaded that he is an employee whereas the 1st defendant was doing business. If the plaintiff proceeds against the appellant, leaving the 1st defendant, it will cause loss and injury to him. Therefore, in view of the circumstances the plaintiff shall first proceed with the execution of the decree against the 1st defendant and in case of any non-realisation by any means, he can proceed against the 2nd defendant/appellant herein. In case of need with the discretion of the lower court and if it is found that the difficulties are likely to arise in execution against the 1st defendant, with the permission of the lower court, the plaintiff can proceed simultaneously against both defendants. With the above observation, the Appeal Suit is dismissed. No order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 25 -11-2010 TSNR