HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.2196 OF 1996 JUDGMENT: The appeal is filed by appellant/plaintiff against the judgment in O.S.No.167 of 1989 on the file of the Subordinate Judge, Eluru, West Godavari. 2. The suit was one filed for recovery of a sum of Rs.61,202/- being the principal and interest due under a promissory note, dated 19.07.1975 executed by the 1st defendant in connection with crop loan. 3. The allegations in the plaint go to show that the 1st defendant has availed a crop loan of Rs.10,000/- and executed a simple mortgage bond on 18.07.1975 and a sum of Rs.9,700/- was paid and a promissory note was executed on 19.07.1975 agreeing to repay the same with interest at 14 ½% per annum with yearly rests. Defendants Nos.2 and 3 are the guarantors for the repayment. The 1st defendant has given letters of acknowledgment on 10.03.1978, 02.03.1981, 03.09.1982, 31.12.1983, 10.12.1986 and 17.05.1988. But, the amounts were not repaid and after giving credit to the payments, the suit amount is due as per the account. 4. The 1st defendant has filed a written statement denying the execution of the mortgage deed on 18.07.1975. He admitted taking of loan of Rs.9,700/-, but denied the confirmation letters. His signatures were taken on blank proformas and he does not know the contents. He is an agriculturist and the interest claimed is excessive. Defendants Nos.4 to 9 were brought on record as the 2nd defendant is said to have died even before institution of the suit and a written statement was filed by the 4th defendant contending that the 2nd defendant died in the year 1988 and he never stood as a guarantor and the addition of defendants Nos.4 to 9 is not legal as the suit was instituted against a dead person. The alleged acknowledgements are also disputed. Defendants Nos.6 to 9 filed a memo adopting the written statement of the 4th defendant. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the guarantee bond executed by defendant No.2 is true and correct and binding on his heirs? 2) Whether the suit claim is barred against defendant No.2 and his heirs? 3) To what relief? 6. On behalf of the Plaintiff, PW.1 was examined and marked Exs.A.1 to A.16. No oral and documentary evidence was adduced on behalf of the defendants. After considering the evidence on record, the learned Subordinate Judge, Eluru, has passed a preliminary decree for a sum of Rs.8,500/- with interest at 12% per annum from 18.07.1975 till the date of redemption against defendants Nos.1 and 3 and the suit against defendants Nos.4 to 9 was dismissed. Aggrieved by the said judgment, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the plaintiff is entitled for the entire suit amount? 2) Whether defendant Nos.4 to 9 are not liable for the suit amount? 8. POINTS: Evidently, the evidence of PW.1, who is employee of the bank, clearly goes to show about the nature of the transaction and execution of documents. Though the 1st defendant has denied the letters of acknowledgment, he did not go into box and consequently, it is futile for the defendants to contend that there was no acknowledgement of debt by the 1st defendant extending period of limitation. 9. The contention of the learned counsel for the appellant so far as defendants Nos.4 to 9 is concerned, the plaintiff is not aware of the death of the 2nd defendant and after institution of the suit only they were brought on record. It is the finding of the lower Court that defendants Nos.4 to 9 were brought on record as necessary parties by filing an application under Order I Rule 10 of the Civil Procedure Code. They were not brought on record as legal representatives of the deceased 2nd defendant. Therefore, as rightly found by the lower Court, it can only be a case of adding of new parties and the liability of defendants Nos.4 to 9 cannot be tagged on to the date of the institution of the suit. Consequently, there can be no decree against the estate of the 2nd defendant in the hands of defendants Nos.4 to 9. 10. But, as rightly contended by the learned counsel for the appellant the original loan amount is Rs.9,700/- but the lower Court has decreed the suit on the principal sum of Rs.8,500/-. The judgment does not disclose on what basis the said amount was arrived at. In fact, the loan application on simple mortgage deed shows the amount sanctioned was Rs.10,000/-. But, from the evidence of PW.1 and also allegations in the plaint only a sum of Rs.9,700/- was borrowed. Therefore, that shall be taken as the principal sum borrowed by the 1st defendant. The evidence of PW.1 goes to show that the defendants were given benefit of a waiver benefit of Rs.10,000/- on 09.07.1991 and it is said to be subsequent to the suit. Therefore, that amount has to be deducted. There are said to be certain payments. As can be seen from the account, there is only a single payment of Rs.1,800/-. The Judgment of the lower Court does not show the credit to be given for the payments already made. 11. Therefore, the decree of the lower Court has to be modified and accordingly, a preliminary decree is passed for a sum of Rs.9,700/- with simple interest at 12% per annum from 18.07.1975 till the date of realization less the payments, if any made by the defendants, with the same interest and as the PW.1 admits that the waiver benefit was given after the institution of the suit to a tune of Rs.10,000/-, it shall also be deducted and the lower Court shall consider the same at the time of passing of the final decree. So far as the suit against defendants Nos.4 to 9 is concerned, the judgment of the lower Court is confirmed. Points are answered accordingly. In the result, the appeal is allowed in part. There shall be no order as to costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:21.10.2011 INL