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(2) Overdraft facility to the extent of Rs. 20,000/- under SOD.25 on 23-11-1974 by executing a pronote for Rs. 20,000/- on 23-11-1974;

(3) A sum of Rs. 18,579-55 was also due under temporary overdraft facility availed from 19-10-1974.

Thus, the sums due under all these heads were claimed which were to the tune of Rs. 8,897/-; Rs. 69,714-13 and Rs. 18,579-55 respectively.

4. The defendants 1 and 2 remained ex parte. Defendant 3 filed his written statement. Defendant 4 though appeared through a counsel did not file any written statement.

7. In the light of this, the learned trial Judge framed the following issues :

"1. Whether the plaintiff proves that the defendants 2 and 3 as partners of the first defendant-firm availed the temporary overdraft facility in their current account No. 210 to the extent of Rs. 18,579-55 from 19-10-1974 on the understanding that they would reimburse the same?

2. Whether the plaintiff is entitled to the amount of Rs. 81,897; Rs. 69,714-13 and Rs. 18,579-55; from the defendants and that the defendants are jointly and severally liable to pay the same?

1. That as the plaintiff-bank was not a party to the transfer of assets and liabilities of the 1st defendant-firm under the sale deed dt. 10-3-1975, the liability of defendants 1 to 3 to pay the amount to the plaintiff-bank was not extinguished. Therefore, the trial Court was not right in refusing to pass a decree against defendants 1 to 3.

"2. That under the temporary overdraft facility availed by defendants 1 to 3 the plaintiff was entitled to claim interest at the rate of 18 1/2% per annum. Therefore, the trial Court is not justified in refusing to grant interest at 18 1/2% per annum;

"Under the temporary overdraft facility, the amount due as on the dale of suit was Rs. 9,000/-. The interest payable on the said amount was at 16 1/2% and not 18 1/2% per annum. The claim for quarterly rests had not been made before the trial Court inasmuch as the matter was covered under item No. 18 of "Instructions of Syndicate Bank" as there was no separate written agreement evidencing payment of interest on the overdrawn advance with quarterly rests."

16. Point No. 1:-- It is true that second defendant has not filed any written statement. It is only the third defendant who has filed the written statement. The third defendant has not disputed that a loan of Rs. 50,000/- was obtained under an agreement dt. 23-11-1974 Ex. P-15 hypothecating the properties of the first defendant as mentioned in Schedule 3 and Annexure 1 to Ex. P-15. This loan of Rs. 50,000/- was obtained under OSL 58/74. Similarly, it is also not disputed by third defendant that a pronote was executed on 23-11-1974 for a sum of Rs.20,000/- as per Ex. P-16 by way of security obtained under SOD 25. The third defendant has also not disputed the fact that on executing the letter of delivery by hypothecating the stock in trade a temporary overdrawal facility was availed from 19-10-1974 to the tune of R. 9,000/-. But the case of third defendant is that the properties of first defendant were sold along with the liabilities to fourth defendant at the instance of the Manager of the Plaintiff Bank on his assurance that their liability will be discharged and the same will stand transferred to fourth defendant. Therefore, it is the case of third defendant that as second and third defendant have transferred the property of first defendant along with the goodwill, it is not now open to the plaintiff to fall back and make a claim against defendants 1 to 3, as it is open to the plaintiff to recover the amount from fourth defendant. Therefore, the submission made on behalf of third defendant is that the Bank is not entitled to make any claim against defendants 1 to 3; that it can only make the claim against fourth defendant; that there is also a decree passed against fourth defendant; that the fourth defendant did not even contest the suit and has not even challenged the decree passed against him. It submitted on behalf of third defendant that this circumstance also would go to show that it was understood by the parties that the liability of defendants 1 to 3 should be transferred to fourth defendant only. It is further submitted that no record is produced by the plaintiff to show that the head office refused to accept the transfer of liability; that no action was taken for recovery of the amount for over a period of two years; that the notice issued by the plaintiff as per Ex. P-20 to the defendants would also go to show that the liability of defendants 1 to 3 was taken over by the fourth defendant and it was accepted by the plaintiffs bank. Therefore, it is contended that it is not permissible to the plaintiff to claim the amount from defendants 1 to 3.