1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 224 OF 2008. Bhaurao Dhondbaji Nerkar Vs. Central Bank of India & Ano. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Shri S. D. Deshpande Adv for appellant. Shri Samel Adv for respondent 1. Shri Saoji Adv H/f Shri Parchure Adv for R-2. CORAM: C. L. PANGARKAR J. DATED: 5 th OCTOBER, 2009. Heard. This Second Appeal is preferred by defendant No.2 who has lost in both the Courts below. Respondent No.1 bank instituted a suit for recovery of Rs. 1,45,332.65 Ps. Respondent No.1 Bank had advanced a loan to the respondent No.2 Deepak. It is alleged that present appellant who is defendant No.2 in the suit stood as a guarantor. Since the 2 defendant No.1 the principal borrower failed to pay loan, suit came to be filed. Defendant No.1 contested the suit as well as defendant No.2. Decree has been passed by the trial Court against defendants 1 and 2 jointly and severally. Defendant No.1 did not prefer any appeal against the said decree. It is the guarantor defendant No.2, who preferred appeal. The appellate Court found that defendant No.2 i.e. present appellant was a guarantor and he was jointly and severally liable. Holding so he dismissed the appeal. Learned counsel for the appellant defendant No.2 submits before me that liability of the present appellant does not arise in view of the fact that the respondent no.1 bank had failed to recover the amount from the sell of hypothecated goods. He submits that this aspect has not been considered by the Courts below and therefore judgments delivered by the Courts below were wrong. After having considered the submissions and after having gone through written statement filed by the defendant No. 3 2. It is clear that defendant No.2 merely raises a defence that his signatures were obtained on a blank paper. He does not aver any where in his written statement that bank was bound to sell hypothecated goods and liability of defendant no.2 would not arise until those goods are sold and sale proceeds are appropriated. Since there is no such pleading I do not think that such a plea can be raised in the second appeal. In any case non auction or sale of the hypothected goods cannot and does not exonerate defendant No.2 since liability of defendant No.2 is joint and several. Courts below have rightly appreciated the evidence on record. These are the questions of facts and it has been held by the Courts below concurrently that defendant No.2 has consciously signed the documents and was a guarantor. No substantial question of law as such is raised. There is no substance in the appeal. It is dismissed in limine. JUDGE svk