Karnataka High Court
Wilson Paskal Pinto vs M/S Jammu And Kashmir Bank Ltd on 31 August, 2012
Author: B.S.Indrakala
Bench: B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF AUGUST 2012
BEFORE
THE HON'BLE MRS JUSTICE B.S.INDRAKALA
WRIT PETITION No.32053/2010(GM-CPC)
BETWEEN:
Wilson Paskal Pinto
S/o Chaka Pinto
Aged: 35 years
FA 154, 3rd Main
HAL FA Colony
Bangalore - 560 017. .. Petitioner
(By Shri R K Kothandapani, Advocate)
And:
M/s Jammu and Kashmir Bank Ltd
Represented by its Manager
OTC Plaza, OTC Road
Bangalore - 560 084. .. Respondent
(By Smt Rukmini Menon, Adv. Absent)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India seeking to discharge the
petitioner who is defendant no.2 in the suit OS
5229/2009 pending before XII ACC & SJ as he is not a
party to the restructure of the loan between respondent
bank and the principal borrower in the expediency of
justice.
2
This writ petition coming on for preliminary
hearing in B Group, this day the Court made the
following:
ORDER
Heard the counsel for the petitioner. None appears for the respondent. On perusal of the order sheet it is seen that the respondent remained unrepresented even on last occasion.
2. The above writ petition is filed seeking to discharge the petitioner in OS 5229/2009 pending disposal on the file of XII Addl. City Civil and Sessions Judge, Bangalore.
3. It is alleged by the petitioner that the respondent/bank granted loan of Rs.1,60,000/- to defendant no.1 during November 2003 under the personal loan scheme with repayment facility period of 36 months from thereon to which transaction the petitioner stood surety on behalf of defendant no.1. It is further contended that defendant No.1 became a 3 defaulter in the payment of EMI on account of which the respondent filed a suit for recovery against 1st defendant and also the petitioner as the petitioner had stood as a surety. It is specifically contended by the petitioner that the 1st defendant did not pay the EMI within the stipulated period however, the respondent/bank revived the loan transaction without the consent of the petitioner, but, the suit is filed against both the principal borrower and the surety. Further, it is contended in the circumstances, the petitioner herein who is arrayed as 2nd defendant filed IA II under Section 151 of CPC seeking to dismiss the suit as not maintainable against him as he was not a party to the revised transaction and also as the suit is barred by time as against him. While dismissing the said application so filed under Section 151 of the code of Civil Procedure, the learned Judge deemed it fit to observe that the said issue is not a pure question of law, but, the same is a mixed question of fact and law, 4 evidence is required to be adduced and without evidence, issue cannot be decided and thus dismissed IA II. Aggrieved by the said order reiterating the contention that at the time of revival of the loan transaction, consent of the surety was not obtained and as such the subsequent transaction of the 1st defendant if any with the respondent is not binding upon him, the petitioner has preferred the above writ petition.
4. Learned counsel appearing for the petitioner during the course of the arguments submitted that, as the suit against 1st defendant was dismissed on 1-3-2010 as endorsed in the certified copy of the order sheet, he is not arrayed as a party in this proceedings.
5. Heard the arguments.
6. On perusal of the order sheet maintained in OS 5229/2009 on the file of 12th Addl. City Civil Judge, Bangalore, it is seen that though the suit was filed 5 against both the principal borrower as well as the surety whose liability is joint and several, as against the suit principal borrower - defendant no.1, was dismissed for not taking steps vide order dated 01.03.2010. Admittedly, the loan transaction took place on 20.11.2003 and with regard to revival of the loan, the petitioner herein is not a party.
7. On perusal of the records, it is seen that 1st defendant is arrayed as the principal borrower and the petitioner herein is arrayed as the guarantor for the transaction, further it is clear that an on-demand promissory note is executed only by the principal borrower which is dated 20.11.2003. The letter of guarantee of even date viz., 20.11.2003 executed by the petitioner separately on a stamp paper and the same does not bare any renewal attestation. The plaintiff/respondent herein has filed the revival letter executed by principal borrower dated 15.11.2006, but, 6 the same is not accompanied by the revival of guarantee offered earlier.
8. Thus it is seen for the revival of the loan transaction, even according to the document filed by the plaintiff himself, the petitioner is not at all a party. Hence, no liability can be fastened as against the petitioner herein. Thus, as the suit is already dismissed against 1st defendant and prima facie as no liability can be fastened against 2nd defendant, the suit of the respondent filed is liable to be dismissed in limine. Thus, it is seen that the guarantee offered at the earliest point of time is not renewed after expiry of the limitation, the claim against the petitioner is basically barred by law of limitation which is only pure question of law and accordingly, the impugned order is liable to be quashed. Consequently, the suit is also liable to be dismissed as against the petitioner herein as barred by limitation. Hence, the following:
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ORDER The impugned order dated 31.8.2010 passed by the XII Addl City Civil Judge, Bangalore in OS 5229/2009 on IA.No.1 is hereby quashed. Consequently the said I.A.No.1 filed under Section 151 of CPC is hereby allowed as sought and accordingly, the above writ petition is allowed. No costs.
Sd/-
JUDGE brn