Madhya Pradesh High Court

Haji Rashid Bhai vs Canara Bank on 20 April, 2023

Author: Pranay Verma

IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
FIRST APPEAL No. 620 of 2000

BETWEEN:-

HAJI RASHID BHAI S/O HAJI NAJEER BHAI,
AGED- 60 YEARS, OCCUPATION - BUNINESS, DR.
SURAJPRASAD MARG (MADHYA PRADESH)
.....APPELLANT
(BY SHRI M.A. BOHARA - ADVOCATE )

AND

1. CANARA BANK (MADHYA PRADESH)

2. SURESH S/O BHAGWANTRAI ARGADE,
AGED ABOUT 34-35 YEARS, OCCUPATION:
BUSINESS, R/O 15 CHHOTI KHAJRANI
(MADHYA PRADESH)

3. MOHAMMAD SHARIF S/O HJI NAJIR BHAI,
AGED ABOUT 45 YEARS, OCCUPATION:
BUSINESS DR. SURAJPRASAD MARG
(MADHYA PRADESH)

4. SMT. VIMAR BANSOD W/O BANSOD, AGED
ABOUT 40 YEARS, OCCUPATION: HOUSE
WORK HOSPITAL PREMISED, C.R.P. LINES,
SOUTH TUKOGANJ, INDORE (MADHYA
PRADESH)

5. ALLADIBAI W/O HAJI NAZIR BHAI NAME
DELETED AS PER HON'BLE COURT ORDER
DT. 12012011 W/O HAJI NAZIR BHAI DR.
SURAJPRASAD MARG (MADHYA PRADESH)

6. ANWARI BAI NAME DELETED AS PER
HON'BLE COURTORDER DT. 12.01.2011 D/O
HAJI NAZIR BHAI 8, SURAJPRASAD MARG
(MADHYA PRADESH)

Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 20-Apr-23
5:58:42 PM
2

7. KAMSIN BAI D/O HAJI NAZIR BHAI 8
SURAJPRASAD MARG (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT THOUGH SERVED AND SPC HAVING BEEN
ISSUED )

Reserved on : 09.02.2023
Pronounced on : 20.04.2023

This appeal having been heard and reserved for orders, coming
on for pronouncement this day, HON'BLE JUSTICE PRANAY VERMA
pronounced the following:
ORDER

This appeal under Section 96 of the CPC has been preferred by defendant No.2 against the judgment and decree dated 29.07.2000 passed in Civil Suit No.37-B/1999 by the Xth Additional District Judge, Indore whereby the claim of plaintiff for recovery of a sum of Rs.45,226/- has been decreed along with interest at the rate of fifteen and half percent per annum compounded quarterly.

2. As per plaintiff, which is a banking company, defendant No.1 Suresh had obtained a loan in the sum of Rs.33,700/- for the purpose of purchasing a vehicle. Najeer Bhai, father of defendant No. 2 & 3 had stood as a guarantor for the aforesaid loan. Subsequently, defendant No.4 Vimal Bansod also executed a deed of guarantee in favour of plaintiff by way of security for the loan raised. Thereafter, Najeer Bhai expired. Since defendant No.1 failed to repay the loan obtained by him, the suit was instituted by plaintiff for recovery of outstanding sum of Rs.45,226/-

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 20-Apr-23 5:58:42 PM

along with interest by impleading the legal heirs of deceased Najeer Bhai as defendant No.2. & 3.

3. The defendant No.2 & 3 contested the claim by filing their written statement in which the entire plaint allegations were denied. It was specifically denied that Najeer Bhai had executed any guarantee document in favour of plaintiff. It was also stated that defendant No.2 & 3 have not received any property of Najeer Bhai. They are not aware of any loan transaction having been entered into between plaintiff, defendant No.1 and Late Najeer Bhai. Since plaintiff had obtained a second deed of guarantee from defendant No.4, the liability of Najeer Bhai stood extinguished. The other defendants remained ex-parte.

4. By the impugned judgment and decree the trial Court has held that plaintiff has proved that defendant No.1 had obtained a loan in the sum of Rs.33,700/- for the purpose of purchase of a vehicle in which Najeer Bhai had stood as a guarantor. It has further held that defendant No.2 & 3 have inherited the movable as well as immovable properties of Najeer Bhai upon his death and they are liable for repayment of the loan amount to the extent they have inherited such property. The claim of the plaintiff was accordingly decreed.

5. Learned counsel for defendant No.2/appellant submits that the impugned judgment and decree is illegal and contrary to law. On behalf of plaintiff one Jagdischand was examined as PW.1 who had not signed the plaint and was not having any personal knowledge of the transaction. The plaint was filed by one Shri Kishnani who was the Branch Manager of the plaintiff but he had expired prior to the stage of evidence. The power of attorney allegedly executed in his favour by the plaintiff was neither produced nor proved. Entire case of plaintiff hence stands

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 20-Apr-23 5:58:42 PM

unproved particularly when defendant No.2 & 3 had categorically denied each and every averments as made in the plaint. It is further submitted that since a second deed of guarantee had been obtained by plaintiff from defendant No.4, the contract of guarantee between plaintiff and Najeer Bhai automatically came to an end after which neither he nor his heirs can be held liable for repayment of the loan. It is also submitted that there is no proof as to what property has been inherited by defendant No.2 & 3 upon death of Najeer Bhai hence they could not have been held liable in any manner. The defendant No.2 was not a party to the transaction of loan and had absolutely no knowledge of the transaction entered into between the original parties. It is submitted that since the claim of plaintiff has not been proved, the same ought to have been dismissed.

6. I have heard the learned counsel for the appellant and have perused the record.

7. The plaint was instituted by the plaintiff under the signatures of Shri CM Kishnani and in paragraph No.1, it was stated that he is the Branch Manager of Siyaganj, South Tukoganj Branch at Indore. There was no avernment made in the plaint as regard his authority. It was not also stated that the loan had been obtained and documentation in that regard had been done in presence or under the signature of Shri C.M. Kishnani. From a perusal of the documents produced by the plaintiff before the trial Court when they are compared to the signatures of Shri C.M. Kishnani in the plaint, it becomes apparent that the documentation was not done under his signatures or in his presence. There is thus no material to suggest that the loan documents were executed either in presence of or under the signatures of Shri C.M. Kishnani.

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 20-Apr-23 5:58:42 PM

8. The defendants have categorically denied each and every averment made by the plaintiff in the plaint and have also stated that no loan as alleged was ever obtained and that no documents were executed by defendants No.1 & 2. The burden was hence squarely upon the plaintiff to prove that the loan had been obtained by defendant No.1 and defendant No.2 had stood as a guarantor and subsequently defendant No.4 had also stood as guarantor for the same. For the purpose of proving the same the plaintiff has examined Jagdish Chandra as PW.1 who has merely stated that he was posted at Siyaganj Branch of the plaintiff in the year 1977. He has not stated that the loan documents were executed in his presence or that he was a party to the same. He has also not stated as to who was the Branch Manager at that time. Though he has stated that Shri Kishnani was a Branch Manager but has not stated as to whether he was the Manager at the time of execution of loan documents or at the time of institution of claim by plaintiff. From the record, it is apparent that Shri Kishnani was the Branch Manager at the time of filing of the suit in the year 1985 and not in 1977 when the loan was obtained and documents were executed.

9. Jagdish Chandra as PW.1 has stated that Shri Kishnani has expired and there was a power of attorney executed in his favour by the plaintiff/Bank. However the said power of attorney was not produced before the trial Court. In any case, admittedly Shri Kishnani expired prior to recording of evidence hence the power of attorney executed in his favour by plaintiff/bank automatically stood revoked. There was hence no proof available on record to show obtaining of loan by defendant No.1 in which Nazeer Bhai stood as a guarantor.

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 20-Apr-23 5:58:42 PM

10. Thus from the evidence brought on record by the plaintiff, it has failed to legally prove the fact that Nazeer Bhai had stood as a guarantor to the loan obtained by defendant No.1. The trial Court hence has erred in decreeing the claim of plaintiff against defendant No.2. Consequently the appeal is allowed and the judgment and decree passed by the trial Court against defendant No.2 is hereby set aside. No costs.

(PRANAY VERMA) JUDGE

jyoti

Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 20-Apr-23 5:58:42 PM