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6. On the basis of inter se pleadings, the Trial Court, framed as many as eleven issues. To substantiate their case, the Plaintiff-Bank examined one witness and exhibited fourtythree documents. On the other hand, no witness was examined on behalf of the defendants and only a photostat copy of the letter issued by defendant No. 2-Director of the Company dated 17th April. 1974 was exhibited as Ext. A. The office copy of the said letter was also exhibited by the Plaintiff-Bank as Ext. 28.

7. The trial Court, on the basis of the evidence adduced, both oral and documentary, arrived at the conclusion that initially the executants made themselves individually and separately liable as principal debtors and that defendants 2 to 5, who signed the document, were responsible as principal debtors and not as guarantors. It was also that defendants 2 to 5 never executed any document as sureties or guarantors. The trial Court relying upon the proviso to Section 6 of the Contract Act held that execution of a fresh set of documents on 17th April, 1974 by defendant No. 2 alone as the Director of the Company amounted to novation of the contract and the previous contract must be deemed to have been given a go-bye.

11. Mr. Pangari, learned counsel for the respondents 2 to 5, supporting the judgment passed by the trial Court strenuously submitted that the pleadings made in the plaint should be strictly adhered to and as grounds of exemption from operation of law of limitation as stipulated under Order 7, Rule 6 of C.P.C. had not been made out in the plaint, the suit should be held to be barred by time. The attempt to prove acknowledgment by any of the defendants without supporting pleading was not permissible under law. It is further submitted that the last set of documents signed by defendants 2 to 5 was of the year 1970 and the suit having been filed much after three years from 9th October, 1970, the same had become barred by time against respondents 2 to 5 in consonance with Article 35 of the Limitation Act. It is also contended that the transaction made in the year 1974 and the documents executed by defendant No. 2 alone as the Director of the Company, will constitute novation of the initial contract between the plaintiff-Bank and defendants 2 to 5. In the documents of 1974, defendants 2 to 5 not being signatories, the same cannot be enforced against them. In other words, Mr. Pangari contended that the plaintiff-Bank is entitled to get relief only on the basis of the 1974 documents which were executed by the defendant-Company represented through defendant No. 2 alone and since defendants 2 to 5 in their individual capacity were not in any way liable for the dues arising out of the said transaction of the year 1974, the suit has been rightly dismissed against them. The documents executed by defendant No. 2 in 1974 on behalf of the Company cannot be treated to be personal acknowledgment so as to get extension of a transaction of the year 1971 and defendant Nos. 2 to 5 are absolved of whatever liability they had by virtue of the documents executed In the year 1971, as the documents of the year 1974 superseded the same. In the alternative, it is submitted, assuming that the liability under 1971 transaction existed, all the three exhibits, being Exts. 35, 36 and 37, relied upon by the plaintiff-Bank, refer to the liability of the Company and not the personal liability of defendant Nos. 2 to 5. Thus, defendant Nos. 2 to 5 who were Directors of defendant No. 1-Com-

4 read "M/s. B. Patnaik Mines Private Limited and individually by. . . ." Thus in the light of the touch-stone of the legal principles enumerated in the decisions referred to above, we have absolutely no hesitation to hold that defendant-respondents 2 to 5 were also individually liable for the loan along with the Company.

20. Mr. Pangari strenuously contended that even if the defendant-respondents are held personally liable, the last set of documents having been signed by all of them only on 5th October, 1971, vide Exts. 15, 16 and 17, the suit filed in 1977, i.e. beyond three years, was clearly barred by time so far as defendant-respondents 2 to 5 were concerned. He further contended that the last set of documents basing upon which the suit was filed (i.e. Exts. 21, 22 and 23) was executed by defendant-respondent No. 2 on 17th April, 1974 as Director representing the Company. Thus according to Mr. Pangari there was a novation of the original contract exonerating the personal liability of defendant-respondents 2 to 5.

27. An argument was advanced by Mr. Pangari that the documents of the year 1974 having been signed by defendant No. 2 alone on behalf of the Company, the same will not bind defendants 2 to 5 and it would be presumed that there was novation of the original contract. We are not persuaded to agree with the said submission for the simple reason that defendant No. 2 was authorised by all the other Directors of defendant No. 1-Company to execute the necessary documents in connection with the loan transaction. In view of such authority, execution of the documents in the year 1974 by defendant No. 2 alone binds other defendants also, and their personal liability does not cease. Even otherwise, the loan which was availed in the year 1960, as has been held earlier, has not become time-barred and the defendants are not absolved of their personal liability. The documents executed in the year 1974 should be construed to be acknowledgements of the existing loan and not fresh agreements. Even otherwise the defendants have not pleaded in their written statement about any novation of contract. No issue was framed to that effect, nor is there any evidence. It is settled that novation of contract is a fact which has to be pleaded and established. We have, therefore, absolutely no hesitation to hold that defendants 2 to 5 are personally liable and the documents executed by defendant No. 2 were in exercise of authority conferred upon him by all the Directors by a resolution (Ext. 38). Therefore, the finding of the trial Court that the Company alone was liable and there was novation of the contract is not only beyond the pleadings and issues framed, but also otherwise contrary to law and the said finding is liable to be set aside. According to us, the documents executed in 1960 (Exts. 4, 5 and 6), in 1965 (Exts. 9, 10 and 11) and all other documents executed time and again till 1971 by all the defendants coupled with the admitted payments and acknowledgments, save the period of limitation. Thus, the suit against the defendants was filed in time and all the defendants are jointly and severally liable to pay the suit amount.