Regular Second Appeal No.3293 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-10.8.2010 Sushil Verma and another ...Appellants Versus Punjab National Bank and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Arun Palli, Senior Advocate with Mr.Sunil Garg, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) The conspectus of the facts, relevant for disposal of present appeal and emanating from the record, is that Punjab National Bank-respondent No.1- plaintiff (hereinafter to be referred as “the plaintiff Bank”) filed the suit against the proforma-respondent Nos.2 to 5-defendant Nos.1 to 4 and Smt.Ram Piari defendant No.5 (since deceased), being represented by the appellants Sushil Verma and Smt.Pushpa Mehra (hereinafter to be referred as “the defendants”) for a decree of recovery of Rs.7,82,082-79 P, inter-alia, pleading that on 5.12.1980, defendant No.1, a registered firm through its partners defendant Nos.2 to 4, made an application for grant of term loan of Rs.5,30,000/- for purchasing card board, paper manufacturing plant and for construction of factory building. They also requested for cash credit (hypothecation) limit of Rs.50,000/- as working capital. The application of defendant No.1 was accepted. Defendant No.1, through its partners defendant Nos.2 to 4, executed the hypothecation deeds of the assets, goods, promotes and other related documents on 6.4.1981. According to the plaintiff bank, Ram Piari defendant No.5 agreed to secure the repayment of loan money and she executed a guarantee deed in this respect on the same day and also Regular Second Appeal No.3293 of 2009 2 delivered the memorandum and title deed of her property with the intention to create equitable mortgage of the loan. In order to further secure the payment of loan and cash credit facility, defendant Nos.2 to 4 deposited the title deeds of their property with the Manager of the plaintiff bank by way of equitable mortgage. Consequently, the defendants were allowed to avail the loan facility. As per terms and conditions of the agreement, they agreed to repay the term loan in 12 equal half yearly instalments starting from 6 months after the commissioning of the plant or after one year of the disbursement of the loan, whichever was to be earlier alongwith interest at the rate of 4½% per annum. 2. Levelling a variety of allegations, in all, according to the plaintiff bank that defendant Nos.1 to 4 took the loan, while defendant No.5 stood guarantor and executed the requisite documents. They did not repay the loan as per terms and conditions of the agreement. At the time of filing of the suit, a sum of Rs.6,22,307.91 P as principal plus incidental charges and Rs.94,545/- as interest accrued upto 19.5.1983 were due from the defendants. On the basis of aforesaid allegations, the plaintiff bank filed the suit for a decree of recovery of the indicated amount against the defendants in the manner described here-in-above. 3. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, validity of the agreements of loan and guarantee. The signatures of Ram Piari- defendant No.5 were stated to have been obtained without making her understand the terms and conditions thereof. The interest claimed by the plaintiff-bank was also stated to be against the provisions of law. On merits, the loan transactions and execution of documents were admitted. The defendants claimed that the entire amount of loan was not paid/disbursed to them by the plaintiff bank. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and Regular Second Appeal No.3293 of 2009 3 reiterating the pleadings of the plaint, the plaintiff-bank filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 5. The parties to the lis, led oral as well as documentary evidence, to prove their respective pleaded cases. 6. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiff-bank alongwith interest, firstly by way of sale of hypothecated properties i.e. land covered, vide sale deed (Ex.P52), building raised thereon and land covered vide sale deed (Ex.P55) and secondly the balance, if any, from the other properties of the defendants, vide impugned judgment and decree dated 20.3.1989. 7. Aggrieved by the judgment and decree of the trial Court, the defendants filed the appeal, while the plaintiff bank also filed separate cross appeal/objections. The Ist Appellate Court dismissed both the appeals, vide impugned judgment and decree dated 26.3.2009. 8. The main defendants-loanees did not challenge, but appellants-LRs of defendant No.5 (guarantor) did not feel satisfied with the impugned judgments and decrees of the Courts below and filed the present appeal. 9. Having heard the learned counsel for the appellants-LRs of defendant No.5, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal. 10. Ex-facie, the argument of learned counsel that some amount was paid by the defendants to the plaintiff-bank following the settlement during the pendency of the appeal and since it will amount to changing the original terms and conditions of the guarantee deed, so, the guarantor is not liable to pay any amount, is not only devoid of merit but misplaced as well. 11. As is evident from the record that the original defendant No.5 Ram Regular Second Appeal No.3293 of 2009 4 Piari duly executed the guarantee deed dated 6.4.1981, whereby, she agreed to secure the repayment of the loan amount obtained by the other defendants. She had also delivered the memorandum, title deed and created an equitable mortgage of her plots. Therefore, even if some amount has been paid by the remaining defendants, in pursuance of some settlement, during the pendency of appeal, even then, it would not wipe off her liability and will not amount to variance in terms of the contract in any manner, as urged on behalf of the appellants. 12. The next argument of the learned counsel that as the plaintiff bank is not adjusting the amount, which was paid as per settlement and is not recovering the balance amount from the property of main loanee, therefore, the entire amount cannot be recovered from the guarantor, is again not tenable. As indicated earlier, the trial Court has ordered the recovery of decretal amount, firstly by way of sale of hypothecated land/property and building of the loanee covered, vide sale deeds (Ex.P52 and Ex.P55) and secondly, the balance amount, if any, from the other properties of the defendants. Sequelly, the Ist Appellate Court has affirmed the decree of the trial Court, by virtue of impugned judgment and decree, the operative part of which is, as under:- “Resultantly, there is no merit in the appeal filed by the defendants and also in the cross objections filed by the plaintiff bank and the same are dismissed. However, the money, if any, paid by the defendants following a settlement, during the pendency of the appeal shall be adjusted accordingly. Counsel fee is assessed at Rs.9,000/-. Decree sheet be drawn accordingly. A copy of judgment be placed in the cross objections filed by the plaintiff bank.” 13. That means, the trial Court has ordered the recovery from the properties of other defendants only in case the decretal amount is not recovered from the properties, subject matter of sale deeds (Ex.P52 and ExP55) and not otherwise and the Ist appellate Court has directed the plaintiff bank to adjust the Regular Second Appeal No.3293 of 2009 5 amount paid in pursuance of the settlement. Therefore, the contrary arguments of the learned counsel for the defendants “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 14. No other meaningful argument has been raised by the learned counsel for the appellant-defendants, to assail the findings of the Courts below in this context. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-defendants, in this relevant behalf, have already been duly considered and dealt with by the Courts below. 15. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well-articulated and well-reasoned indicated concurrent findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court in the wake of appeal of guarantor, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 16. Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. Regular Second Appeal No.3293 of 2009 6 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 10.8.2010 Judge AS