State Bank Of India vs Maharana Mills Ltd on 21 July, 2026

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    Gujarat High Court

    State Bank Of India vs Maharana Mills Ltd on 21 July, 2026

    Author: Bhargav D. Karia

    Bench: Bhargav D. Karia

                                                                                                                     NEUTRAL CITATION
    
    
    
    
                               C/FA/53/1993                                     CAV JUDGMENT DATED: 21/07/2026
    
                                                                                                                     undefined
    
    
    
    
                                                                                Reserved On   : 22/04/2026
                                                                                Pronounced On : 21/07/2026
    
                                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                                     R/FIRST APPEAL NO. 53 of 1993
    
    
                          FOR APPROVAL AND SIGNATURE:
    
    
                          HONOURABLE MR. JUSTICE BHARGAV D. KARIA
    
                          and
                          HONOURABLE MR.JUSTICE L. S. PIRZADA
    
                          ==========================================================
    
                                       Approved for Reporting                     Yes            No
                                                                                                 ✓
                          ==========================================================
                                                         STATE BANK OF INDIA
                                                                Versus
                                                      MAHARANA MILLS LTD. & ORS.
                          ==========================================================
                          Appearance:
                          MR UDAY R BHATT(192) for the Appellant(s) No. 1
                          DISMISSED FOR NON PROSECUTION for the Defendant(s) No. 3.1,3.3,5
                          MR KN RAVAL(710) for the Defendant(s) No. 2
                          NOTICE ISSUED BY PUBLICATION for the Defendant(s) No. 3.2
                          SHIVANG A THACKER(7424) for the Defendant(s) No. 1
                          MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR AYUSH BHANDARI
                          WITH MR VIDIT S SHARMA(7365) for the Defendant(s) No. 4
                          ==========================================================
    
                             CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
                                   and
                                   HONOURABLE MR.JUSTICE L. S. PIRZADA
    
    
                                                               CAV JUDGMENT
    

    (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)

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    1.Heard learned advocate Mr. Uday R. Bhatt for

    the appellant, learned Senior Advocate Mr.

    Deven Parikh with learned advocate Mr. Ayush

    Bhandari with learned advocate Ms. Vidit S.

    Sharma for respondent no.4 and learned

    advocate Mr. Shivang A. Thacker for the

    Official Liquidator- respondent no.1.

    2.This appeal was originally filed by the State

    Bank of Saurashtra which had later on merged

    with State Bank of India and therefore, State

    Bank of India was substituted as the

    appellant vide amendment carried out as per

    order dated 07.09.2017 passed in Civil

    Application No.9181 of 2017.

    3.The appellant bank-original plaintiff filed

    Special Civil Suit No.13/1985 in the Court of

    Civil Judge (S.D.) at Porbandar to recover a

    sum of Rs.3,89,54,766.30 from the

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    respondents-original defendant nos. 1 to 4.

    4.For the sake of convenience, the appellant

    bank is referred to as the plaintiff bank,

    respondent no.1 company is referred to as

    defendant no.1 company, respondent no.2 is

    referred to as defendant no.2, respondent

    no.3 is referred to as defendant no.3,

    respondent nos. 3.1 to 3.3 who are the heirs

    of respondent no.3 are referred to as

    defendant nos. 3.1 to 3.3, respondent no.4 is

    referred to as defendant no.4 and respondent

    no.5 bank is referred to as defendant no.5

    bank.

    FACTS

    5.The plaintiff bank advanced financial

    assistance to defendant no.1 – M/s. The

    Maharana Mills Ltd. company which was engaged

    in the business of spinning, weaving and

    manufacturing of Cotton Textile having its

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    factory and registered office at Porbandar.

    Defendant nos. 2 to 4 were the Chairman and

    the Directors respectively of defendant no.1

    company. Defendant no.5 Industrial

    Development Bank of India was also joined in

    the suit as it had also advanced loan to

    defendant no.1 company.

    6.During the pendency of the suit, defendant

    no.3 Shri Khimjibhai N. Mehta expired and

    therefore, his legal representatives i.e.

    defendant nos. 3.1 to 3.3 were brought on

    record.

    7.The plaintiff bank had granted various cash

    credit facilities as enumerated in paragraph

    nos. 1 to 6 of the plaint. Defendant no.1

    company had executed all the requisite

    documents in favour of the plaintiff bank and

    defendant nos. 2 to 4 were the guarantors and

    executed necessary documents of personal

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    guarantee in favour of the plaintiff bank.

    8.Defendant no.1 company had also executed the

    Letters of Hypothecation for Rs.5,10,00,000/-

    which covered the limits of cash credit, etc.

    and also deposited the documents of the title

    of the factory premises, building etc. as

    collateral security with the plaintiff bank

    on 14.02.1969. As the defendant no.1 company

    could not repay the outstanding dues of the

    plaintiff bank inspite of repeated demand

    being made, the plaintiff bank served demand

    notice dated 31.12.1984 upon the defendants.

    However, inspite of such demand notice, no

    payment was made and therefore, the plaintiff

    bank filed suit for recovery of

    Rs.3,89,54,766.30 together with further

    interest and cost.

    9.The defendant nos. 1 to 4 filed the Written

    Statement at Exh.43 in which the transactions

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    with the plaintiff bank have been admitted.

    It was contended by defendant nos. 1 to 4

    that defendant no.1 Mill was closed on

    11.02.1983 and therefore, denied the suit of

    the plaintiff bank for claim of interest

    amount after closing of the Mill. It is also

    the case of the defendants that on or about

    the date of filing of the suit, defendant

    nos. 1 to 4 executed the new revival

    documents in favour of the plaintiff bank

    and, therefore, the suit would not lie on the

    basis of the documents relied upon by the

    plaintiff bank, as such documents have ceased

    to operate and therefore, cannot be

    considered for valid claim.

    10. It was contended that General Manager of

    the plaintiff bank at Bhavnagar had promised

    defendant nos. 1 to 4 that the suit would not

    be filed if the defendants would submit

    revival proposal to the plaintiff bank. The

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    defendants also contended that revival

    documents were executed by them on or about

    the date of filing of the suit and therefore,

    the plaintiff bank could not have filed the

    suit for recovery as it would be barred by

    the principle of promissory estoppel. It was

    contended that defendant nos. 1 to 4 have

    discharged their obligation of executing

    revival documents which were never produced

    by the plaintiff bank on record and

    therefore, there was suppression at the time

    of filing of the suit and the plaintiff bank

    has not appeared before the Court with clean

    hands and therefore, it was prayed that suit

    was liable to be dismissed by drawing adverse

    inference against the plaintiff Bank.

    11. Defendant no.5 bank filed written

    statement at Exh.21 contending that it had

    first charge on all the movable and immovable

    assets of the defendant no.1 company ranking

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    pari passu with the charge in favour of the

    plaintiff for its cyclone term loan of Rs. 20

    Lacs and ranking prior to charge in respect

    of working capital term loan of Rs.490 Lacs.

    12. After considering the pleadings and

    documentary evidence placed along therewith,

    the Trial Court has settled the issues at

    Exh.46 which have been answered by the Trial

    Court. The issues framed by the Trial Court

    as well as summary of findings of the Trial

    Court are as under:

                                   Sr.        Issues                                  Findings
                                   No.
                                   1          Whether the plaintiff proves In        the
    

    its suit claim on various affirmative, but
    accounts with interest as against the
    claimed as stated in plaint defendant no.1
    para 17(A) Ex.1? only.

    2 Whether the plaintiff proves In the
    that it is entitled to affirmative.
    recover the suit amounts by
    sale of hypothecated goods
    and mortgaged properties as
    alleged ?

    3 Whether the plaintiff proves In the
    that it is entitled to get a affirmative.

    decree for charge on
    hypothecated goods, mortgaged

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    properties as alleged?

    4 Whether the plaintiff proves The defendant
    that the defendant no.1, the no.1 mill is
    company as well as defendant only liable for
    no.2 to defendant no.4, in the claim of the
    their personal capacities, plaintiff bank.

                                              are liable for the suit claim The    defendants
                                              of the plaintiff?             nos. 2,3 and 4
                                                                            are not liable
                                                                            for the claim of
                                                                            the     plaintiff
                                                                            bank   in    their
                                                                            personal
                                                                            capacity.
                                   5          Whether the defendant no.1 to In             the
    

    4 prove that some cloth of Affirmative.
    defendant no.1, with 36,19,937-94 ps.
    permission of plaintiff, was which is already
    sold and said price was credited in
    received by plaintiff. If account of
    yes, what is the said amount? defendant no.1
    by the plaintiff
    bank.

    6 Whether the defendants nos. 1 The defendants
    to 4 prove that as per say of nos. 1,2,3 and 4
    the plaintiff bank, suit have proved that
    documents were renewed by the documents
    defendants nos. 1 to 4 and so were renewed.
    the suit of the plaintiff But the suit is
    based on old documents, is maintainable.

                                              not         maintainable     as Minimum   adverse
                                              alleged ?                       inference     has
                                                                              been        drawn
                                                                              against       the
                                                                              plaintiff bank.
                                   7          Whether the defendants nos. 1 In the negative.
                                              to 4 prove that the suit of
                                              the plaintiff is barred on
                                              principles    of   promissory
    

    estoppel and acquiescence as
    the plaintiff had assured not

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    to file the suit, if such
    documents were renewed by
    defendants nos. 1 to 4?

    8 Whether the defendant nos.1 In the negative.

    to 4 prove that the cause of
    action to file the suit has
    come to an end as alleged ?

    9 What is found due, if any, to Rs.3,62,15,577-

                                              plaintiff?                    61 ps. found due
                                                                            against       the
                                                                            defendant    no.1
                                                                            only.
                                   10         To   reliefs     plaintiff         is The     plaintiff
                                              entitled?                             bank is entitled
                                                                                    to recover the
                                                                                    amount from the
                                                                                    defendant    no.1
                                                                                    only   and   from
                                                                                    the    properties
                                                                                    of the defendant
                                                                                    no.1
                                   11         Whether plaintiff bank alone The       plaintiff
                                              is entitled to recover the bank       alone    is
                                              suit    amount     from    the not entitled to
                                              hypothecated   and   mortgaged recover        the
    

    properties of defendant no.1 amount from the
    to 4? hypothecated and
    mortgaged
    property of
    defendant no.1.

                                                                             There     is     a
                                                                             charge          of
                                                                             defendant     no.5
                                                                             also.
                                   12         Whether defendant no.5 proves In the
    

    that it can get the reliefs affirmative
    as stated in written
    statement Ex. 21, para 17?

    13 What order and decree? As per final
    order

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    13. The plaintiff bank has placed on record

    several documents executed by the defendants

    marked as Exh.60 to Exh.111. Defendant nos. 2

    to 4 had also issued guarantee letters at

    Exh. 66, Exh.73, Exh.78, Exh.79, Exh.86,

    Exh.87 on 12.02.1982.

    14. During the pendency of the trial,

    defendant nos. 1 to 4 submitted an

    application dated 15.01.1987 (Exh.47) for

    orders requiring the plaintiff bank to

    produce correspondence, telegram and

    proceedings of conferences, relating to

    different accounts during the years 1984,

    1985 and 1986. However, the Trial Court

    rejected such application.

    15. Thereafter, an application dated

    20.11.1989 (Exh.123) was again filed by the

    advocate of the defendant nos. 1 to 4 for

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    production of documents by the plaintiff bank

    relating to various accounts of defendant

    no.1 company. Deposition of witness of the

    plaintiff bank – Shri Kiritkumar Mangalsinh

    Gohil was recorded at Exh.127. It appears

    that thereafter defendant no.1 company was

    ordered to be wound up by order dated

    03.05.1990 passed in Company Petition No.138

    of 1989. An attempt was made on behalf of

    defendant nos. 2 to 4 to place on record the

    dispatch book found in the year 1991 to prove

    that revival documents have been executed and

    sent to the plaintiff bank which was

    permitted by the Trial Court by order passed

    below Exhs. 152 and 154.

    16. Thereafter the Trial Court after

    considering the oral and documentary evidence

    on record, by judgment and decree dated

    30.01.1992 decreed the suit against defendant

    no.1 company for Rs.3,62,15,577.61 with

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    interest at the rate of 12% per annum from

    the date of suit till realisation and

    dismissed the suit against defendant nos. 2

    to 4 and declaration was passed against

    defendant no.5 in respect of charge over the

    property of the company as claimed by the

    plaintiff bank.

    17. This appeal is therefore filed to decree

    the suit against defendants nos. 2 to 4 also

    on the ground that defendant nos. 2 to 4 were

    the guarantors and therefore, they are

    jointly and severally liable for recovery of

    claim of outstanding dues of defendant no.1

    company as the Trial Court has held that

    defendant nos. 2 to 4 are not liable for

    claim of the plaintiff bank in their personal

    capacity. The plaintiff bank is also

    aggrieved by the impugned order of the Trial

    Court restricting the claim to

    Rs.3,62,15,577.61 instead of

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    Rs.3,89,54,766.30 with interest.

    18. It appears that during the pendency of

    the appeal, order dated 12.12.2022 was passed

    permitting the learned advocate for the

    appellant to serve notice upon unserved

    respondent nos. 3.1 and 3.3 through Air-mail,

    failing which, the appeal would stand

    dismissed against the said respondents and so

    far as respondent no.3.2 was concerned, the

    notice was returned as refused. Order dated

    12.12.2022 reads as under:

    “1. Notice issued, though the board
    would indicate the notice has been
    served to Respondent No.1, but the
    records do not reflect the same.
    Hence, we permit the learned counsel
    appearing for the appellant to serve
    copy of the appeal memorandum on the
    Standing Counsel representing the
    Official Liquidator at High Court of
    Gujarat by notifying the hearing
    date as 16.01.2023.

    2. In the meanwhile, we permit the
    appellant’s counsel to take out
    notice to unserved respondent viz.
    Respondents No.3.1 and 3.3 namely
    through Air-mail within three days

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    from today. Failing which, appeal
    shall stand dismissed against
    Respondents No.3.1 and 3.3.

    3. Notice issued to Respondent
    No.3.2 has been returned as unserved
    with shara as ‘refused’. Respondent
    No.3.2 viz.Shobhnaben Devani is
    called out. None appears, service
    held to be sufficent. Place ex-
    parte. Hence, service of notice on
    Respondent No.3.1 is held to be
    sufficent.

    4. We also permit appellant’s
    counsel to take out notice to
    Respondent No.5. Permittted to take
    out notice for the IDBI Bank Limited

    – Respondent No.5 by Speed Post
    within one week from today, failing
    which, appeal shall stand dissmissed
    as against Respondent No.5 also.

    Re-list this matter on 23.01.2023.”

    19. As no steps were taken by the plaintiff

    bank to serve notice upon respondent no.3.1

    and 3.3 as per order dated 12.12.2022, appeal

    was ordered to be dismissed qua respondent

    nos. 3.1 and 3.3 vide order dated 23.01.2023.

    Further, it was reported that respondent no.2

    defendant no.2 Dhirunbhai N. Mehta had

    expired and therefore, his legal

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    representatives were directed to be brought

    on record. It was also noticed that there was

    no material to show that learned advocate for

    the appellant had taken any steps to serve

    notice upon respondent no.5 defendant no.5.

    Therefore, the appeal was ordered to be

    dismissed qua respondent no.5. Order dated

    23.01.2023 passed by this Court reads as

    under:

    “1. This Court by order dated
    12.12.2022, permitted service of
    notice to respondent Nos. 3.1 and
    3.3 through Air-mail within three
    days from the date of order and a
    peremptory order of dismissal came
    to be passed. Record on hand does
    not disclose that such steps has
    been taken by the appellants. Thus,
    peremptory order of dismissal stands
    revived. Appeal stands dismissed qua
    respondent Nos. 3.1 and 3.3.

    2. It is also reported that
    respondent No. 2 – Dhirubhai N.
    Mehta is said to have expired.

    Hence, learned counsel then
    representing respondent No. 2 shall
    make endeavour to ascertain the
    details of legal representatives of
    deceased respondent No. 2. There is
    no material to show that learned
    counsel for appellant having taken

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    out notice to respondent No. 5 also
    as ordered on 12.12.2022. Hence,
    appeal against respondent No. 5
    stands dismissed.

    3. Re-list this matter on
    01.03.2023.”

    20. During the pendency of the appeal,

    efforts were made to discharge respondent

    no.4 guarantor on lump-sum payment of Rs. 1.5

    crore. However, respondent bank by a detailed

    affidavit filed in compliance of order dated

    11.03.2026 showed its inability to accept the

    proposal made by defendant no.4. Even the

    efforts were also made to serve the legal

    heirs of defendant no.2 by public notice by

    the plaintiff bank but no one has appeared.

    21. Therefore, the matter was argued on

    merits by learned advocates for the

    plaintiff, defendant no.4 and the Official

    Liquidator.

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    Submissions on behalf of the plaintiff:

    22. Learned advocate Mr. Uday R. Bhatt

    referred to and relied upon the averments

    made in the plaint to demonstrate that right

    from the inception of filing of the suit, the

    plaintiff bank had narrated all the details

    in para no.4 of the plaint and Promissory

    Note and guarantee deeds have been executed

    by defendant nos. 1 to 4 which are referred

    to in the plaint supported by documentary

    evidence for each of the averments.

    23. Learned advocate Mr.Bhatt submitted

    that the that all the documents which were

    produced by the bank were duly exhibited by

    learned Trial Court and the suit for recovery

    was filed by producing valid documents which

    were obtained by the plaintiff which are

    total 52 in number (Exh 5 – Pg 71). Learned

    advocate Mr. Bhatt referred to the documents

    produced by the plaintiff bank namely, letter

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    of hypothecation, promissory note, letter of

    continuing guarantee, letter of continuing

    personal guarantee, letter of continuity with

    balance confirmation, revival letters,

    confirmation letters, resolutions of the

    board, acknowledgment of receipt of title

    deeds, memorandum of title deeds, deposit of

    title deeds, confirmatory letter with regard

    to mortgage, resolution, registration of

    charge etc. It was submitted that insofar as

    transaction with the defendant no.1 company

    is concerned, the first document produced is

    of date 25.03.1972 and last document is a

    notice dated 31.12.1984.

    24. Learned advocate Mr. Uday Bhatt

    submitted that in the written statement

    (Ex.43) the defendants Nos. 1 to 4 have

    contended that upon receiving the notice

    dated 31.12.1984, the defendant no. 2

    Director of the company had met the General

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    Manager of the plaintiff bank at Bhavnagar

    and pursuant to the discussion held with him,

    the company initiated the process of passing

    new resolution to renew/revive credit enjoyed

    by the company. However, no particulars of

    the fresh documents said to have been

    executed and submitted to the Bank were

    given.

    25. It was submitted that the defendant

    no.1 company has not produced anything on

    record to show that the revival documents

    were executed in presence of any officer of

    the Bank or were executed by the defendants

    Nos. 2, 3 and 4. Further, the defendants have

    not relied upon any specific contents of any

    revival document which as per them have been

    submitted to the plaintiff Bank which would

    extinguish the cause of action of the

    plaintiff bank under the previous set of

    documents. It was submitted that the

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    documents alleged to have been delivered by

    the defendant no.1 Company to the plaintiff

    bank on 6.2.1985 were never executed by or on

    behalf of the plaintiff Bank. It was

    submitted that the case of the defendant is

    that the said documents were executed to

    induce the plaintiff Bank not to file the

    suit and if it is so, then it would be

    obvious that the revival documents could not

    have been replaced by any documents which did

    not provide for guarantee of the defendants

    Nos. 2 to 4.

    26. It was submitted that the Trial Court

    ought to have drawn adverse inference against

    the defendants nos. 2 to 4 for non-

    examination of defendant no.2 Mr. D.N. Mehta.

    27. It was submitted that the Trial Court

    erred in holding that new revival documents

    are proved to have been executed and that all

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    the documents are in possession of the

    plaintiff Bank and the plaintiff Bank ought

    to have produced the same as they were

    relevant for consideration of the suit and if

    the plaintiff Bank had produced the same, the

    decision would have gone against the

    plaintiff Bank. It was therefore, submitted

    that the Trial Court erred in holding that

    this is a fit case to draw minimum adverse

    inference against the plaintiff Bank on

    account of non-production of new revival

    documents only qua defendant nos. 2 to 4. It

    was submitted that the Trial Court ought not

    to have raised adverse inference against the

    plaintiff bank only to the extent of any

    specific case of any defendants, but not

    beyond it and because of such adverse

    inference, the defendant nos. 2 to 4 were

    wrongly discharged from their personal

    liabilities by way of guarantees given to the

    plaintiff Bank.

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    28. Learned advocate Mr. Uday Bhatt

    submitted that as per Order XLI Rule 33 of

    the Code of Civil Procedure,1908 this Court

    as an Appellate Court has wide powers and

    this Court may pass any order/judgment which

    ought to have been passed as required, and

    this power may be exercised by this Court

    while exercising its appellate jurisdiction

    and even if the challenge in the appeal is

    only as to any part of the decree, such order

    in appeal by this Court may be passed against

    any of the respondents or parties, although

    such respondents or parties may not have

    filed any appeal or objection. It was

    submitted that an Appeal being the

    continuation of a suit, this Court in present

    appeal in exercise of its appellate

    jurisdiction can pass an order to ensure

    justice.

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    29. Referring to the document produced at

    Page no.39 of the paper book, learned

    advocate Mr. Bhatt submitted that the

    appellant has produced documents which are

    the revival documents which show that the

    defendant no. 1 Maharana Mills Ltd. was

    engaged in spinning, weaving and

    manufacturing of cotton textiles and had also

    availed financial assistance from various

    Banks since 1969. It was submitted that for

    execution of any document, a bank will issue

    a Letter of Sanction/Letter of Intent which

    would contain all the terms and condition

    needed for the execution of a document.

    However, the defendants have not referred to

    any such document for revival of the loans

    and adverse inference may be drawn by this

    Court to this effect against the defendant

    nos. 2 to 4. It was submitted that neither

    Letter of Sanction/Letter of Intent nor any

    executed document for revival was placed on

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    record by respondents and the onus of

    producing such documents is on the party as

    per section 103 of the Evidence Act.

    30. Learned advocate Mr. Uday Bhatt

    submitted that nothing has been argued or

    submitted or shown by the respondents that as

    per Sections 2,3 and 10 of the Contract Act,

    whether there is a concluded contract between

    the parties or not. Further, there is no

    contract in writing and only if there is a

    concluded contract between the parties,

    adverse inference can be drawn against the

    plaintiff bank. It was submitted that in

    normal routine course, the bank provides

    copies/proforma of the revival documents to

    the parties and then asks the parties to come

    to the bank and execute such documents.

    However, there is nothing on record to show

    that the documents were exchanged between the

    plaintiff bank and the defendants. It was

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    submitted that to show involvement of any

    public institution in a contract/agreement, a

    written agreement is a must.

    31. It was submitted that as per Order XII

    Rule 6 of the Code of Civil Procedure, 1908,

    a Court may pass a judgment at any stage of a

    suit or may even dismiss a suit without

    waiting for the determination of other issues

    if there is a clear, unequivocal, and

    unconditional admission of facts by either

    party. It was submitted that the written

    statement of the defendant is itself an

    admission and the trial Court ought to have

    granted the prayers of the plaint in entirety

    as prayed for. Referring to page no. 53 of

    the paper book, more particularly, para.

    no.7, it was submitted that on 12.2.1982 the

    defendant No.1 company had executed a Letter

    of Hypothecation whereby it created a charge

    on all tangible movable property such as

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    products, stock-in-trade, goods of borrower

    etc. for Rs.5,10,00,000/- which covered the

    limit of Cash Credit Hypothecation, bills

    purchase, discounting guarantee limit and

    overdraft account and the said charge was

    registered with the Registrar of Company. It

    was submitted that such fact is an admitted

    fact and is not disputed by the defendant

    nos. 1 to 4 before the Trial Court therefore

    in such a case, Order XII Rule 6 of the Code

    shall be applicable. It was submitted that

    such facts are also not denied by the

    respondents defendants in the present

    appellate proceeding including in proceedings

    of Civil Application or Misc. Civil

    Application filed in the First Appeal. It was

    submitted that admittedly since 1969, the

    credit facilities were entered into by the

    defendants and the documents of title of the

    factory premises and buildings situated at

    Porbandar was deposited with the plaintiff

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    bank on 14.02.1969 which fact is also not

    denied by the defendants.

    32. Learned advocate Mr. Bhatt submitted

    that the plaintiff bank had various amounts

    due from the defendant no.1 company on

    various accounts of facilities granted to the

    defendant no.1 company such as Cash Credit

    Hypothecation Limit, Overdraft against fixed

    assets, Inland foreign documentary and

    Guarantee limit. The defendant nos. 1 to 4

    failed and neglected to operate the said

    accounts in accordance with the agreed terms,

    they also failed to pay the interest on

    agreed rate on specified date. However, as

    the financial position of defendant No.1

    company became weak and the company closed

    its operations, the plaintiff bank is

    entitled to demand repayment from the

    defendant company of the amount due to its

    own aforesaid accounts. Therefore, to enforce

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    its rights, the plaintiff bank served legal

    notice dated 31.12.1984 on the defendants

    calling upon them to pay the outstanding dues

    along with interest within 15 days from the

    date of receipt of notice. The said notices

    were served on the defendant nos. 1 to 4, but

    the same was not complied and hence the suit

    was filed by the plaintiff bank on

    07.02.1985.

    33. It was submitted that the suit was filed

    before the signing of revival document which

    is evident upon perusal of letters dated

    08.02.1985 and the revival document was not

    signed by the defendant no.1 Company so no

    adverse inference can be drawn. It was

    submitted that even if considering that the

    plaintiff bank was called upon by the lower

    Court to produce the signed revival

    documents, merely because court was desirous

    of perusing the document, it cannot be said

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    that adverse inference can be drawn against

    the plaintiff bank and the Trial Court has

    wrongly exonerated the Directors of the

    company merely based upon adverse inference.

    34. In support of his submissions, reliance

    was placed on the following decisions:

    1) T ARIVANDANDAM V/s TV SATYAPAL reported

    in 1977 (4) SCC 467 wherein it was held that

    filing of frivolous and vexatious litigation

    and suit should be avoided when it is found

    to be groundless. The Court emphasized that

    advocates, as officers of the Court, have a

    duty to refuse fraudulent or dishonest cases

    and should not assist clients in abusing the

    judicial process.

    2) RAHUL S SHAH V/S JINENDRA KUMAR GANDHI &

    ORS reported in 2021 (6) SCC 418 wherein

    directions to all Courts dealing with suits

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    and execution proceedings were enlisted by

    Hon’ble Apex Court.

    3) M/S AZEEM INFINITE DWELLING (INDIA) PVT

    LTD V/s M/S PATEL ENGINEERING LTD reported in

    2024 LawSuit (Kar) 414 wherein it is held

    that the mere fact that a further formal

    agreement being drawn up will not lead to the

    conclusion that the earlier agreement was not

    a concluded contract. The essential point

    sought to be urged was that mere negotiations

    will not give rise to a binding contract and

    there must be formal acceptance of the offer

    made for a contract to be presumed to have

    come into effect.It was submitted that the

    onus is on the respondent to show that the

    agreement was a concluded contract or not.

    4) Karnataka Power Transmission Corporation

    Limited; Karnataka Electricity Regulatory

    Commission V/S JSW Energy Limited & Ors

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    reported in 2023 (5) SCC 541, wherein the

    Hon’ble Apex Court held as under:

    “56. Section 2 of the Indian
    Contract Act, 1872 provides for the
    interpretation clause. We may set
    out our understanding of Section 2,
    so far as it is relevant, to be as
    follows:

    It begins with a proposal made
    by a promisor. A proposal is an
    offer to do something or an
    offer to abstain from doing
    something. The offer must be
    made with a view to obtaining
    the agreement to it from the
    party to whom it is made. When
    the person to whom the proposal,
    as defined, is made, who is
    treated as the promisee, conveys
    his unqualified consent, the
    proposal is treated as having
    been accepted. The proposal,
    when it is accepted, becomes a
    promise. An agreement is every
    promise and every set of
    promises forming the
    consideration for each other. As
    to what is consideration, we
    need not be detained. A contract
    is an agreement enforceable by
    law. Section 3 of the Contract
    Act deals with communication,
    acceptance and revocation of
    proposals. The acceptance of a
    proposal, inter alia, takes
    place by any act or omission of
    the party accepting. It must be
    an act or omission by which he
    either intends to communicate

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    his acceptance or which has the
    effect of communicating his
    acceptance. These are matters of
    fact to be decided on the facts
    of each case. Section 10 of the
    Contract Act reads as follows:
    “10. What agreements are
    contracts. All agreements are
    contracts if they are made by
    the free consent of parties
    competent to contract, for a
    lawful consideration and with
    a lawful object, and are not
    hereby expressly declared to
    be void.

    Nothing herein contained shall
    affect any law in force in
    India and not hereby expressly
    repealed by which any contract
    is required to be made in
    writing1 or in the presence of
    witnesses, or any law relating
    to the registration of
    documents.”

    Thus, from the second part of
    Section 10 of the Contract Act, it
    is self-evident that it is not
    essential to form a contract, that
    it should be in writing. The second
    part of Section 10, illustrated by
    Section 19 of the Copyright Act,
    1957 applies where a law stipulates
    that a contract be in writing in
    which case a contract must be
    reduced to writing.”

    5) Hotel New Metro v. UT of J&K & Ors. in

    WP(C) No. 590/2023, wherein Hon’ble High

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    Court of Jammu and Kashmir held as under:

    “24. In terms of Order VIII Rule 3
    of the Code of Civil Procedure
    , it
    is not sufficient for a defendant in
    his written statement to make a
    general denial of the grounds
    alleged by the plaintiff, he is
    required to specifically deal with
    each allegation of fact of which he
    does not admit the truth and it is a
    settled principle of law of
    pleadings that if every allegation
    of fact in the plaint is not denied
    specifically or by necessary
    implication, it shall be taken to be
    an admission in terms of Rule 5 of
    Order VIII of the Code. Now, when
    law relating to admission is
    examined in the light of Order XII
    Rule 6 CPC
    , I need not say anything
    more than what the legislature has
    intended in its framework that where
    admission of fact is made in the
    pleadings or otherwise, the Court at
    any stage of the proceedings has the
    jurisdiction to pass such order or
    give such judgment as it needs fit,
    having regard to such admission. It
    is also settled in law that such
    admission includes one that can be
    inferred from facts and
    circumstances of a case without any
    dispute, as held by Hon’ble Supreme
    Court in “Charanjit Lal Mehra vs.
    Kamal Saroj Mahajan
    “; 2005 (11) SCC

    279. It is also settled in law that
    facts admitted need not be proved in
    terms of Section 58 of the Evidence
    Act and a party’s admission is

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    substantive evidence ex proprio
    vigor.”

    Submissions on behalf of the defendants

    35. Learned Senior Advocate Mr. Deven Parikh

    for the defendants submitted that there was a

    revival agreement which was accepted by the

    plaintiff bank and such revival agreement was

    duly signed by defendant no.1 company and a

    resolution was passed accepting the same.

    However, this fact was held back from the

    Court by the plaintiff bank. It was submitted

    that sufficient material is present on record

    in this matter to show that revival documents

    were signed and delivered amongst the

    parties. However, the person/institution who

    is in possession of the document cannot

    continue to keep the possession of the

    document and claim that it has full control

    over the document. It was submitted that as

    the possessor i.e. plaintiff bank is not

    ready to produce the revival document, hence

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    adverse inference has been drawn by the Trial

    Court in light of such facts. It was

    submitted that the documents which were

    signed by the Directors of the company are in

    custody of the plaintiff bank and it ought to

    have been produced by them. It was submitted

    that a litigant owes it to the Court that if

    there is something which goes to the crux of

    the matter, the litigant ought to have

    produced such documents before the Court and

    if the documents were produced by the

    plaintiff bank and were found to have been

    signed by the bank, the matter would have

    ended then and there as recovery suit would

    not have been proceeded further.

    36. Learned Senior Advocate Mr. Parikh

    submitted that the loan was initially taken

    in 1972 with the personal guarantee of two

    Directors and not three Directors and

    therefore, every time when there is an

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    extension, a fresh guarantee from the

    Directors is needed. It was further submitted

    that in present case, two sets of documents

    are produced by the plaintiff bank, first of

    1972 and second of 1982. In 1972 set of

    documents, two Directors were guarantors and

    in 1982 set of documents, three Directors

    were guarantors and therefore, when liability

    was to be renewed in 1982, the bank had taken

    fresh guarantees. It was therefore submitted

    that for every renewal of facilities of

    credit or for entering into a new agreement a

    fresh guarantee or a document reflecting

    continuing of guarantee is needed and the

    same was sent to the plaintiff bank by the

    defendant nos. 1 to 4 on 06.02.1985 and on

    08.02 1985.

    37. Learned Senior Advocate Mr. Parikh

    submitted that the bank has not examined Mr.

    Shah and Mr. Parekh of the bank and also have

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    not produced its books. Further, the

    defendant nos. 2 to 4 who were the Directors

    of the company have discharged their original

    onus of producing relevant documents and

    however, the plaintiff bank has failed to

    discharge onus to place on record relevant

    documents, specifically the signed revival

    document submitted to it. It was therefore

    submitted that the Trial Court at the first

    instance called for production of the signed

    revival document and now, when the plaintiff

    bank has not produced such document, an

    adverse inference has rightly been drawn

    against the plaintiff bank.

    38. It was submitted that the plaintiff bank

    has not denied the signing of revival

    documents as evident upon perusal of Chief

    examination of Shri Kiritbhai who was an

    employee of the bank (Exh. 127).

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    39. Learned Senior Advocate Mr. Deven

    Parikh thereafter placed reliance on the

    following documents:

    1) Letter dated 02.02.1985 (Exh. 112 – Pg

    no. 709 of the paper book) to submit that the

    letter is genuine one and its contents should

    be believed as true. It was submitted that

    the said letter, is by the Director of the

    defendant company addressed to the State Bank

    of Saurashtra along with the revival

    documents duly signed by the defendant no.1

    company as well as the guarantors for revival

    of credit facilities. It was submitted that

    it was mentioned in the letter that the

    Directors of the defendant no.1 company had

    discussed the issue of notice dated

    31.12.1984 given to the company with Mr.

    Parekh, who was the General Manager of State

    Bank of Saurashtra at its Head Office at

    Bhavnagar and as per the discussion, the

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    notices given were mere formal Notices and

    were not to be acted upon.

    2) Letter dated 08.02.1985 (Exh 114 – Pg 713

    of the Paper book) addressed by the defendant

    no.1 Company to Mr. V. B. Parekh, General

    Manager of State Bank of Saurashtra wherein

    it was mentioned that the defendant company

    had received the revival documents which were

    sent by the bank just a month ago which has

    been confirmed by Mr. Shah on behalf of the

    plaintiff bank. Further, for the process of

    revival, all necessary actions/steps were

    being taken by the defendant company as

    discussed with the plaintiff bank which

    included passing of new resolution, calling

    the meeting of the Board Meeting at Bombay

    etc. It was also addressed in this letter

    that the counsel of the plaintiff bank would

    seek adjournment from the Court for hearing

    which was scheduled on 12.02.1985.

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    3) Letters dated 08.02.1985 (Exhs. 115 to

    117- Pg 717 to 723 of the Paper book)

    addressed by the defendant no.1 Company to

    State Bank of Saurashtra wherein it was

    stated that the delay in sending revival

    documents has incurred as the documents were

    given in the month of January only. Further

    the process of passing new resolution as

    asked by the Head Office of the plaintiff

    bank, the defendant no.1 company had called

    meeting of the Board of Directors and after

    passing of the resolutions necessary

    signatures were to be obtained. It was also

    addressed in the letter that the notices

    given to the defendant nos. 1 to 4 were

    merely formal in nature and need not be acted

    upon if revival documents were submitted.

    However, in spite of such facts being in

    place and in knowledge of Mr. Parekh and Head

    Office of State Bank of Saurashtra and in

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    spite of submission of revival documents, the

    plaintiff bank filed the suit against the

    understanding arrived at between the Head

    Office of the plaintiff bank and the

    defendant no.1 company. It was also alleged

    in the said notice that filing of suit by the

    bank is a breach of promise and therefore it

    was prayed that the suit filed by the

    plaintiff bank may be withdrawn immediately.

    4) Letter dated 09.02.1985 (Exh 118 – Pg 725

    of the Paper book) addressed by the defendant

    no.1 Company to the State Bank of Saurashtra

    whereby the defendant company had requested

    the plaintiff bank to send the documents to

    the Bombay Office of the bank for getting the

    signatures of Directors of the company who

    were out of India but were expected to return

    soon.

    5) Resolution dated 24.01.1985 passed by

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    Board of Directors of the defendant no.1

    Company resolving to revive the then existing

    Cash Credit Limit, H.P. Limit, O.D. Limit,

    L.C. Limit, Guarantee Limit etc. which were

    being enjoyed by the defendant Company and

    that such benefits be continued and that the

    existing executed documents in connection

    with above various limits be revived. It was

    also resolved that defendant no.2 Mr. D.N.

    Mehta would be authorised to sign the revival

    documents for and on behalf of the defendant

    no.1 Company and the guarantee documents for

    revival be signed by Shri D.N. Mehta, Shri

    K.N. Mehta and Shri M.N. Mehta who were the

    guarantors at the time of passing of the

    resolution.

    40. In premise of the aforesaid documents,

    it was submitted that it is clearly evident

    on reading of the letters that revival talks

    were going on between the plaintiff bank and

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    the defendant no.1 company in the past six

    months before filing of the suit. The revival

    documents were fructified, and agreement was

    drafted, signed and sent by the bank to the

    company. It was submitted that sending of

    documents by the defendant no.1 company would

    be after and not before the

    agreement/acceptance of revival. It was also

    submitted that during the relevant time

    during 1985, it was a routine practice for

    the banks to grant extension to

    businesses/companies etc. for renewal/revival

    of benefits enjoyed by the company and such

    documents were sent back by the company after

    signing them. It was submitted that the last

    letter also refers to assurance given by the

    plaintiff bank that if the defendant no.1

    Company signs the revival document, the suit

    filed by the plaintiff bank would be

    withdrawn and the letter does not state that

    if revival is agreed by the defendant no.1

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    company, only then suit would be withdrawn.

    It was therefore, submitted that the revival

    was already agreed upon between the parties

    and was also signed by the Directors of the

    company at the time when letters dated

    08.02.1985 were addressed and the signing of

    such revival documents in front of the bank

    officials was merely a technical issue. It

    was submitted that it was also the stand of

    the plaintiff bank that once the Directors

    sign the document, the revival process would

    be concluded.

    41. In the context of submission of the

    plaintiff bank that decree ought to have been

    passed against all the defendant nos. 1 to 4

    and not only against the defendant no.1

    Company and the lower court has committed an

    error in taking adverse inference against the

    Directors, it was submitted that it was up to

    the official liquidator of company in

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    liquidation to file an appeal and the Trial

    Court cannot be said to have committed any

    error in decreeing the suit against the

    defendant no.1 company only.

    42. Learned Senior Advocate Mr. Parikh in

    the alternative submitted that if the adverse

    inference drawn by the Trial Court against

    the plaintiff bank to dismiss the suit qua

    defendant nos. 2 to 4 is not upheld then even

    on merits, the guarantees given by the

    defendants-Directors stand discharged in view

    of provisions of section 133 and 134 of the

    Indian Contract Act. Reliance was placed on

    illustration (a) to section 134 to submit

    that in view of the financial assistance of

    cash credit on hypothecation of the goods by

    the plaintiff bank, when the goods are not in

    existence, the guarantees given by the

    Directors would stand discharged.

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    43. In support of his submissions learned

    Senior Advocate Mr. Deven Parikh placed

    reliance on the following judgements –

    1) Hiralal And Others vs Badkulal and Others

    reported in 1953 (0) AIR (SC) 225.

    2) National Insurance Co. Ltd., New Delhi

    Versus Jugal Kishore and Others reported in

    (1988) 1 SCC 626.

    3) Gurnam Singh And Others Versus Surjit

    Singh and Others reported in 1975 4 SCC 404.

    4) Eureka Forbes Limited Versus Allahabad

    Bank and Others reported in (2010) 6 SCC 193.

    5) Gopal Krishnaji Ketkar Versus Mohamed Haji

    Latif & Others reported in AIR 1968 SC 1413.

    6) ATYAM VEERRAJU AND OTHERS Versus PECHETTI

    VENKANNA AND OTHERS reported in AIR 1966 SC

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    629.

    7) State of Madhya Pradesh v. Kaluram

    reported in AIR 1967 SC 1105.

    8) Amrit Lal Goverdhan Lalan (D) through

    Legal Heirs v. State Bank of Travancore and

    Ors. reported in AIR 1968 SC 1432.

    9) The State Bank of Saurashtra v. Chitranjan

    Rangnath Raja and Anr. reported in AIR 1980

    SC 1528.

    10) The Indian Bank, Madras v. Krishnaswamy

    and Ors. reported in AIR 1990 Madras 115.

    11) Syndicate Bank v. Pamidi Somaiah (D) and

    Anr. reported in AIR 2002 AP 12.

    12) Satish Chandra Jain v. National Small

    Industries Corpn. Ltd. and Ors. reported in

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    AIR 2003 SC 623.

    13) Neeraj Dutta Versus State (Government of

    Nct of Delhi) reported in (2023) 4 Supreme

    Court Case 731.

    14) Lachhmi Narain Singh (Dead) Through Legal

    Representatives and Others Versus Sarjug

    Singh (Dead) Through Legal Representatives

    and Others (2022) 13 Supreme Court Cases 746.

    15) R.V.E. Venkatachala Gounder Versus

    Arulmigu Viswesaraswami & V.P. Temple And

    Another reported in (2003) 8 Supreme Court

    Cases 752.

    16) Dayamathi Bai (Smt) Versus K.M. Shaffi

    reported in (2004) 7 Supreme Court Cases 107.

    Points for determination

    44. Considering the above submissions made

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    by learned advocates for both the sides and

    on perusal of the impugned judgment and order

    passed by the Trial Court, following points

    are framed for determination:

    1) Whether in facts and circumstances of the

    case, the Trial Court has erred in law in

    drawing minimum adverse inference against the

    plaintiff bank by answering issue no.4 in

    favour of defendant nos. 2, 3 and 4?

    2) Whether in facts and circumstances of the

    case, the Trial Court has erred in law and on

    facts in answering issue no.6 in affirmative

    in holding that defendant nos. 2,3 and 4 have

    proved that documents were renewed while

    drawing minimum adverse inference against the

    plaintiff bank?

    3) Whether in facts and circumstances of the

    case, the Trial Court has erred in law and in

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    facts in holding that only Rs.3,62,15,577.61

    is found due against defendant no.1 only in

    answer to issue no.9?

    4) Whether the Trial Court has erred in law

    in answering issue no.10 to the effect that

    the plaintiff bank is entitled to recover the

    amount from defendant no.1 Company only?

    Analysis and Findings

    45. Considering the submissions made by the

    learned advocates for the parties as well as

    oral and documentary evidence on record, the

    entire controversy revolves around impugned

    Judgment of the Trial Court holding that

    defendant nos. 2, 3 and 4 have proved that

    the documents were renewed to draw minimum

    adverse inference against the plaintiff bank

    so as to dismiss the suit against defendant

    nos. 2, 3 and 4.

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    46. Therefore, the moot question that arises

    for consideration is whether the

    renewal/revival documents which were alleged

    to have been submitted by the defendants with

    the plaintiff bank were actually submitted or

    not and if answer to this question is in the

    affirmative, whether such submission of the

    revival and renewal documents by the

    defendant nos. 2 to 4 would caste an

    obligation on the plaintiff bank to disclose

    such facts in the pleadings and to produce

    such revival documents before the Trial

    Court, failing which, the Trial Court was

    justified in drawing adverse inference

    against the plaintiff bank so as to discharge

    the defendant nos. 2, 3 and 4 from their

    liability as guarantors for the amount

    borrowed by the defendant no.1 company.

    47. In order to analyse whether the Trial

    Court was justified in drawing minimum

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    adverse inference qua defendant nos. 2 to 4

    only inspite of holding defendant no.1

    company in Liquidation was liable for the

    outstanding dues of the plaintiff bank so as

    to exonerate defendant nos. 2 to 4 from the

    joint and several liability as guarantors for

    the financial assistance advanced to

    defendant no.1 company by the plaintiff bank,

    it would be germane to refer to the

    undisputed facts emerging from the record as

    under:

    1) That defendant no.1 company availed the

    financial borrowings from the plaintiff bank.

    2) There were regular transactions carried

    out by defendant no.1 company with the

    plaintiff bank upto the date of its closure

    on 11.02.1983.

    3) The defendants have raised the objection

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    only with respect to the debit entries made

    by the plaintiff bank in the account of

    defendant no.1 company after the closure of

    Mills on 11.02.1983.

    4) The defendant no.1 company was not able

    to pay the outstanding dues of the plaintiff

    bank inspite of the notice issued by the

    plaintiff bank in the year 1985.

    5) The documents executed between the

    parties for availing the financial assistance

    by the defendant no.1 company from the

    plaintiff bank from the year 1972 till 1982

    annexed with the plaint are not disputed.

    48. On the basis of above undisputed and/or

    admitted documents by the defendant nos. 1 to

    4, the Trial Court has passed the decree for

    recovery of outstanding dues of the plaintiff

    bank from the defendant no.1 company.

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    49. The defendant nos. 2 to 4 also have

    admitted the personal guarantees given by

    them to avail the financial assistance by

    defendant no.1 company. However, defendant

    nos. 2 to 4 have raised the principal

    objection regarding the filing of the suit by

    the plaintiff bank for ignoring the

    submission of duly executed revival documents

    signed by defendant nos. 2 to 4 prior to or

    during the period of filing the suit by the

    plaintiff bank and not disclosing this fact

    in the pleadings. Therefore, defendant nos. 2

    to 4 have vehemently objected filing of the

    suit by the plaintiff bank on the basis of

    the documents which were already executed

    which would have ceased to operate in view of

    the revival documents submitted by defendant

    nos. 2 to 4. Further objection was raised by

    defendant nos. 2 to 4 for non production of

    the revival documents by the plaintiff bank

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    inspite of specific demand being made by the

    defendant nos. 2 to 4 without any reasonable

    explanation as such documents were relevant

    for determination of the claim made by the

    plaintiff bank for recovery of the

    outstanding dues.

    50. It is the case of the defendant nos. 2

    to 4 that as the plaintiff bank has failed to

    place on record the revival documents,

    adverse inference qua plaintiff bank was

    required to be drawn in view of principle of

    Doctrine of Promissory Estoppel. Defendant

    nos. 2 to 4 therefore, alleged that the

    plaintiff bank has not filed the suit with

    clean hands.

    51. The trial Court passed the order dated

    19.08.1981 below Exh. 152 and 154 as under:

    “Order below Ex. 152 and 154 in
    Special Civil Suit No. 13/1985.

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    Ex;-

    1. This is a suit in which final
    arguments are heard. After the
    hearing of final arguments, the
    defendants have filed both these
    applications to permit them to
    produce some documentary evidence.
    The said applications for permission
    to produce documentary evidence has
    been strongly objected by the
    learned advocate of the plaintiff
    and the plaintiff’s advocate has
    filed written objection at Ex. 153.
    I have heard the arguments of both
    the advocates of the parties at
    length.

    2. In the present suit, no doubt,
    final arguments are heard, but
    judgement is not pronounced till
    today. This is not a case in which
    defendants should be deprived from
    giving evidence only on the ground
    of late production of the documents
    annexed with Ex. 152 and 154.
    According to the defendants this is
    an important document which may
    enlight to the disputed issues.
    These documents are prima facie
    relevant documents and according to
    my view if opportunity will be given
    to the defendants by allowing them
    to produce documents, which would be
    in interest of the justice and on
    the other hand the plaintiff will
    not loose anything. Hence, according
    to my view, this is a fit case to
    allow both these applications Ex.
    152 and 154.

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    3. For the reasons stated above I
    pass following order.

    ORDER.

    The applications Ex. 152 and 154
    both are allowed. Defendants are
    permitted to produce evidence
    annexed with both these
    applications.

    Cost shall be in cause.”

    52. The Trial Court thus permitted defendant

    nos. 2 to 4 to lead the evidence at the end

    of the trial so as to prove the case for

    drawing adverse inference against the

    plaintiff bank in order to exonerate

    defendant nos. 2 to 4 from their liability as

    guarantors for the outstanding dues of the

    plaintiff bank. The defendant nos. 1 to 4

    therefore, tried to justify that they had

    submitted the duly executed revival documents

    with the plaintiff bank by examining one Mr.

    Kanaiyalal Mohanlal (Exh.157) who was the

    Peon of defendant no.1 company. It is the

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    case of the defendant nos. 1 to 4 that said

    Kanaiyalal Mohanlal was working as a Peon

    with defendant no.2 Director after closure of

    the defendant no.1 company on 11.02.1983 and

    was doing work of local delivery of the

    letters at Porbandar.

    53. Mr. Kanaiyalal Mohanlal has deposed in

    his examination-in-chief at Exh.157 that

    during the period between 06.02.1985 and

    08.02.1985, he had delivered certain letters

    to the plaintiff bank at its Porbandar branch

    and entries for the same was made in the

    Delivery Peon Book and the concerned employee

    of the plaintiff bank also had made initials

    in the said Delivery Peon Book as an

    acknowledgment for receipt of such documents

    by the plaintiff bank.

    54. On perusal of the deposition of Mr.

    Kanaiyalal Mohanlal at Exh. 157 and his cross

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    examination by the plaintiff bank, it reveals

    that the witness has shown ignorance as to

    who had put the initial in the first entry

    made against the date 06.02.1985 but he has

    only stated that initial was made in his

    presence.

    55. With regard to the entry against the

    date 08.02.1985, it was admitted by the said

    witness Mr. Kanaiyalal Mohanlal that

    neither name of Maharana Mills is written nor

    there is any other indication to show that

    the entry pertains to revival documents of

    defendant no.1 company. It is also admitted

    that entries in Peon Book were made by one

    Mr. Gadhvi but what is stated in English

    Language which refers to “Bhavnagar Message

    and Documents Revived” are not the

    handwriting of Mr. Gadhvibhai and the

    handwriting of such writing is also different

    from other writing in the Peon Book. Thus,

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    analysis of the above deposition of Mr.

    Kanaiyalal Mohanlal and his cross examination

    it is revealed that defendant nos. 2 to 4

    have tried to justify their stand that

    revival documents were submitted but the same

    were not produced by the plaintiff bank so as

    to enable the Trial Court to draw an adverse

    inference against the plaintiff bank to

    dismiss the suit qua defendant nos. 2 to 4.

    56. The Trial Court also heavily relied upon

    the deposition and cross examination of the

    said witness Mr. Kanaiyalal Mohanlal at

    Exh.157 by believing the same as true to

    conclude that defendant nos. 2 to 4 have

    proved that revival documents were submitted

    which were not produced by the plaintiff bank

    on record to draw adverse inference to

    dismiss the suit qua defendant nos. 2 to 4.

    The Trial Court has held that cross

    examination of the witness Mr. Kanaiyalal

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    Mohanlal at Exh.157 is to be believed as it

    cannot be said that he was narrating false

    facts pertaining to the delivery of the

    letters dated 06.02.1985 and 08.02.1985 with

    the plaintiff bank and entries in the Peon

    Book which is placed on record at Exh.158 was

    therefore, believed to be maintained in due

    course of the transactions.

    57. In view of above facts emerging from the

    record it would therefore, be necessary to

    analyse as to when partial/minimum adverse

    inference can be drawn on the same facts as

    the Trial Court has not drawn any adverse

    inference qua defendant no.1 company for

    drawing decree for recovery of outstanding

    dues of the plaintiff bank and has drawn

    adverse inference against the plaintiff bank

    to dismiss the suit qua defendant nos. 2 to 4

    company in Liquidation on one hand and on the

    other hand passing the decree in favour of

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    the plaintiff bank qua defendant no.1 company

    in Liquidation.

    58. An adverse inference refers to the

    conclusion drawn by the Court from the

    absence or withholding of the evidence that

    would normally be expected to be presented.

    It implies that impugned evidence would have

    been unfavourable to the parties withholding

    it.

    59. Therefore, in facts of the case, it is

    required to be examined as to whether the

    plaintiff bank has withheld the production of

    revival documents alleged to have been sent

    by the defendant nos. 1 to 4 prior to or

    after filing of the suit or not. In the

    evidence of witness of the plaintiff bank –

    Shri Kiritkumar Mangalsinh Gohil recorded at

    Exh.127 has deposed in the cross examination

    that he was not aware that the bank had

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    renewed the documents and the bank had not

    produced such revival documents. It was

    categorically deposed by the witness that

    there is no file containing such documents

    available from the record of the bank. Thus,

    it is clear that the respondent bank has not

    deliberately withheld documents of revival

    which is alleged to have been signed by the

    defendant nos. 1 to 4. As against that the

    Trial Court has relied upon the evidence of

    Peon Mr. Kanaiyalal Mohanlal at Exh.157 which

    was permitted to be taken by the Trial Court

    by order below applications Exh. 152 and

    Exh.154 at the fag end of the trial. As

    discussed here-in-above, the evidence of

    Kanaiyalal Mohanlal at Exh. 157 only refers

    to the Peon Book containing the entries made

    therein on 06.02.1985 and 08.02.1985 without

    pointing out as to what type of documents

    were submitted with the plaintiff bank.

    Merely because the Peon Book is produced on

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    record by defendant nos. 2 to 4, same cannot

    be considered as conclusive evidence to hold

    that the revival documents were submitted

    with the plaintiff bank and the plaintiff

    bank has deliberately withheld the same. The

    discussion made by the Trial Court in para

    no.9 of the impugned judgment and order in

    this regard reads as under:

    “9. As per the contents of the above
    stated letters in correspondence
    with plaintiff bank by the defendant
    no.1, it is crystal clear that at
    the time of about the filing of the
    present suit, there was a serious
    consideration about the revival of
    documents between the parties and as
    per the contents of above stated
    letters, it is proved beyond doubt
    that the new documents had been
    executed in favour of the plaintiff
    bank by the defendants and the
    defendants have delivered the said
    documents to the plaintiff bank. The
    plaintiff bank has not specifically
    denied the contents of the above
    letters or the facts of telephonic
    talk between Shri D.N. Mehta and
    General Manager Shri parekh. The
    plaintiff bank is quite silent about
    the facts of letters and the
    execution of the new documents but
    it is proved by the contents of the
    above stated letters that the new

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    documents had been executed by the
    defendants in favour of the
    plaintiff bank. I cannot understand
    why the plaintiff bank was reluctant
    during the trial to produce the new
    revival documents inspite of
    specific serious dispute raised by
    the defendants. It is proved that
    the new revival documents were
    executed and all documents are in
    the possession and power of the
    plaintiff bank. The plaintiff bank
    ought to have produced all these new
    revival documents to show its
    bonafide, but the plaintiff bank has
    not chosen fit to produce the said
    documents and made themselves liable
    for consequences. When the
    defendants has taken specific plea
    in written statement pertaining to
    the new revival documents, it was a
    duty of the plaintiff bank to
    produce the documents in the
    proceeding to enable the court to
    find out what is the truth. But the
    plaintiff bank has not produced any
    documents to give an opportunity of
    perusal to the court. The new
    revival documents are relevant for
    the determination of the present
    suit and it is not produced by the
    plaintiff bank. Hence, I have reason
    to believe that, if the new revival
    documents would produce by the
    plaintiff, the decision would be
    against the plaintiff Hence, this is
    a fit case to draw adverse inference
    against the plaintiff for the non-
    production of new revival documents
    as the plaintiff bank has deprived
    this court from perusing the said

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    documents. The plaintiff bank is a
    nationalised bank which is working
    for the interest of public at large
    and this action on the part of the
    plaintiff bank is not just, fair and
    reasonable. Every public institute
    expected to be acted in a just, fair
    and reasonable manner and in the
    interest of the public at large but
    the plaintiff bank has acted in the
    present suit in most unjust and
    unequitable manner. I cannot
    understand why the plaintiff bank
    was reluctant to produce new revival
    documents. The plaintiff bank ought
    to have not to conceal anything from
    the court and high standard of
    bonafide has been expected from the
    public institute. The plaintiff Bank
    has suppressed material and relevant
    documents from the court and
    plaintiff bank is not appeared with
    clean hands before this court. The
    learned advocate Shri Bhatt argued
    that the new revival documents if it
    is executed was not complete
    document on the date of filing the
    suit and those documents are also
    not relevant for the determination
    of the present suit. As stated
    earlier the fact of new revival
    documents has been duly proved and
    it is in the possession and powers
    of the plaintiff bank. However, the
    learned advocate Shri Bhatt has not
    declared before this court whether
    the documents were executed or not.
    Apart from the fact of relevancy of
    documents why the plaintiff bank has
    deprived this court from perusing
    the said documents. If documents

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    were not completed on the date of
    filing of the suit, naturally and
    automatically this court would
    discard those documents. But, the
    plaintiff bank has deprived this
    court from perusing the new revival
    documents is a sufficient fact to
    draw “adverse inference” against the
    plaintiff bank. In my above
    discussion, I am supported by the
    observation made by the Hon’ble
    Supreme Court in case of National
    Insurance Col Ltd., V/S. Jugal
    Kishor and others A.I.R. 1986 S.C.
    at page 719. In this reported ruling
    the Hon’ble Supreme Court has
    observed on page no. 723 that

    “This court has consistently
    emphasised that it is the duty
    of the party which is in
    possession of a document which
    would be helpful in doing
    justice in the cause to produce
    the said document and such party
    should not be permitted to take
    sheltter behind the abstract
    doctrine of burden of proof.
    This duty is greater in the case
    of instrumentalities of the
    state such as the appellant who
    are under an obligation to act
    fairly.”

    60. Reliance was placed by the Trial Court

    on the decision in case of National Insurance

    Co. Ltd. v. Jugal Kishor and others reported

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    in AIR 1988 SC 719 wherein it is held that it

    is the duty of the party which is in

    possession of a document which would be

    helpful in doing justice in the cause to

    produce the said document and such party

    should not be permitted to take shelter

    behind the abstract doctrine of burden of

    proof. Such dictum of law however can be

    applied only if it is proved that the revival

    documents were in possession of the plaintiff

    bank. When the witness of the plaintiff bank

    has stated in the cross examination that no

    documents are available on the file of the

    plaintiff bank then the trial Court could not

    have relied upon the witness of the

    defendants at Exh. 157 to draw adverse

    inference against the plaintiff bank only qua

    defendant nos. 2 to 4.

    61. It is pertinent to note that the

    plaintiff bank has filed the suit for

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    recovery against defendant no.1 company and

    joined defendant nos. 2 to 4 as guarantors to

    recover such dues on joint and several basis,

    however, the Trial Court has passed the

    decree in favour of the plaintiff bank for

    recovery from defendant no.1 company by

    observing as under:

    “10. The whole suit of the plaintiff
    bank is liable to the dismissed as
    the adverse inference has been drawn
    against the plaintiff bank, but I
    would not like to dismiss the whole
    suit of the plaintiff because the
    transaction with the plaintiff bank
    upto the date of closing the mill on
    11-2-1983 has been specifically
    admitted by the defendants in the
    written statement Ex. 43. The
    plaintiff is a nationalised bank.
    There would be no personal interest
    of anybody. The defendant no.1 Mills
    have enjoyed the bank facility and
    financial assistance from the
    plaintiff and this fact is also an
    admitted fact of the defendants and
    hence, it becomes the duty of this
    court that minimum loss or damage
    caused to the plaintiff by drawing
    “adverse inference” against the
    plaintiff bank.”

    62. The reasoning given by the Trial Court

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    is that because the transaction with the

    plaintiff bank upto the date of closure of

    mill on 11.02.1983 has been specifically

    admitted by the defendants in the written

    statement at Exh.43 and there would be no

    personal interest of anybody to withhold the

    revival documents and defendant no.1 Company

    had enjoyed the financial assistance and

    therefore, it was the duty of the Court to

    see that minimum loss or damage is caused to

    the plaintiff bank by drawing adverse

    inference against the plaintiff bank and

    therefore, the Trial court only drew adverse

    inference against the plaintiff bank qua

    defendant nos. 2 to 4 which is nothing but

    perverse findings.

    63. The Trial Court has drawn adverse

    inference only on presumption that there must

    be some change or variation or modification

    in the terms of guarantee or personal

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    liabilities of the Directors of defendant

    no.1 company. This is nothing but perverse

    findings arrived at by the Trial Court by

    presuming that there would be some change or

    variation or modification in the terms of

    guarantee and there would not be any other

    change in the so called revival documents

    which were never executed by both the

    plaintiff bank and defendant nos. 1 to 4. The

    findings arrived at by the Trial Court by

    drawing adverse inference only qua defendant

    nos. 2 to 4 by believing that there is

    something against plaintiff bank pertaining

    to the guarantee given by the Director

    personally in the revival documents and in

    view of such adverse inference, discharging

    defendant nos. 2 to 4 from their personal

    liability by way of guarantee given to the

    plaintiff bank, is not tenable in law.

    64. The Trial Court therefore, could not

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    have drawn adverse inference by presuming

    that the revival documents would contain some

    variation or modification in terms of

    guarantee and there would not be any other

    modification or variation. Therefore, drawing

    of such partial adverse inference by the

    Trial Court is liable to be set aside. In

    this context, it would be necessary to refer

    to the observations made by the Trial Court

    in para nos. 11 and 12 which reads as under:

    “11. As per my above discussion, it
    is clear that the new revival
    documents has been executed in
    favour of the plaintiff bank but
    they are not producing in this
    proceedings, and “adverse inference”

    has been drawn against the
    plaintiff. Now, talking the fact of
    enjoying bank facilities and
    financial assistance by the
    defendant no.1 Mills as an unignored
    fact, it would be a question that
    what would be the fact in the new
    revival documents which would be
    against the plaintiff bank? The only
    presumption is that there must be
    some charge or variation or
    modification in the terms of
    guarantee or a personal liabilities
    of the Directors of the defendant
    no.1 Mills i.e. defendants nos.2, 3

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    and 4. Hence, by drawing adverse
    inference, we can believe that there
    is something against the plaintiff,
    pertaining to the guarantee given by
    the Directors personally in new
    revival documents and in view of
    adverse inference the defendants
    nos. 2,3 and 4 stands discharged
    from their personal liabilities by
    way of guarantees given to the
    plaintiff bank.

    12. As per my above discussion, it
    is proved that new revival documents
    had been executed between the
    parties and it is not produced and
    as stated earlier in view of adverse
    inference drawn against the
    plaintiff bank. There must be some
    variation pertaining to the
    guarantee. Under the provisions of
    sec. 133 of the Indian contract Act
    any variance made in the terms of
    contract between the principle and
    debtors without the consent of the
    guarantor, the guarantors stands
    discharged from the transaction
    carried out by the creditors and
    debtors. In the present case before
    me, the plaintiff bank is a creditor
    and the defendant no. 1 Mills is a
    debtor and the Directors of
    defendant No. 1 i.e. defendants
    nos. 2, 3 and 4 are the sureties or
    guarantors in their personal
    liabilities between the transactions
    of plaintiff bank and defendant
    no.1. In view of provision sec. 133
    of the Indian contract Act, the
    plaintiff bank is failed to prove or
    establish the consent of defendants

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    nos, 2, 3 and 4 in their personal
    capacity in transaction i.e. at the
    time of executing new revival
    documents and by drawing adverse
    inference with aid of sec. 133 of
    the Indian contract Act, the
    personal liabilities of the
    defendant nos.2 3 and 4 stands
    discharged.”

    65. On perusal of the above findings

    recorded by the Trial Court, in our opinion,

    by drawing adverse inference against the

    plaintiff bank and as per the provisions of

    section 114 of the Evidence Act read with

    section 133 of the Indian Contract Act, the

    Trial Court has committed an error of law in

    holding that the plaintiff bank has failed to

    prove or establish the consent of defendant

    nos. 2 to 4 in their personal capacity in

    transaction i.e. at the time of execution of

    the revival documents on the basis of adverse

    inference.

    66. If the revival documents are to be

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    believed to have been executed then no decree

    could have been passed by the Trial Court

    against defendant no.1 company in favour of

    the plaintiff bank. Thus, the Trial Court has

    in order to exonerate defendant nos. 2 to 4

    has arrived at a presumption which clearly

    shows the biased approach by the Trial Court

    in favour of defendant nos. 2 to 4.

    67. The Trial Court has also brushed aside

    the contention raised on behalf of the

    plaintiff bank that application at Exh.47

    filed by the defendants for the production of

    the documents in question under provision of

    Order XI and Rule 14 of the Code of Civil

    Procedure, 1908 has been rejected vide order

    dated 05.08.1987 and no adverse inference can

    be drawn against the plaintiff for the point

    regarding the documents in question.

    68. The Trial Court brushed aside such

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    contention by referring to the order passed

    below Exh. 47 to hold that the stage of the

    suit at the time of adjudication of Exh.47

    was a preliminary stage and therefore, it was

    observed by the Court that “in that

    circumstances, at present, I do not see any

    necessity to pass the order for production of

    the documents as prayed for by the

    defendants”. The Trial Court was of the

    opinion that the learned predecessor Judge

    might not have found necessity for production

    of the documents at that stage which does not

    mean that the document in question would not

    be relevant at any stage during the trial.

    The observations made by the Trial Court in

    para no. 16 reads as under:

    “16. The learned Advocate Shri C. D.
    Purohit on behalf of the plaintiff
    argued that the defendants have
    filed an application Ex. 47 for the
    production of documents in question
    under the provisions of order 11,
    rule 14 of the Code of Civil
    procedure and that application has
    been rejected by this court on 5-8-

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    87 and hence, no adverse inference
    can be drawn against the plaintiff
    or the point regarding the documents
    in question is out of scope. I do
    not agree with the arguments of the
    learned advocate Shri C.D. Purohit.
    This court has specifically observed
    in order below EX. 47 that “in that
    circumstances at present, I do not
    see any necessity to pass the order
    for the production of the documents
    as prayed for by the defendants,”

    The stage of the suit at the time of
    adjudication of Ex. 47 was a
    preliminary stage and perhaps my
    learned predecessor Judge might have
    not find necessity the document in
    question at that stage. But, it does
    not mean that the documents in
    question would be not relevant at
    any stage during the trial. The
    defendants have specifically stated
    in their pleading in the written
    statement at EX. 43 that the
    documents in question as discussed
    above are quite relevant and in
    absence of those documents, the
    legal position would be different.
    During the trial, before examination
    of the plaintiff’s any witness, the
    defendants have given notice to the
    plaintiff to produce the documents
    in question or the witness of the
    plaintiff should remain present in
    the Court with the documents in
    question. However, inspite of
    specific case of the defendants and
    frequent demand for production of
    the certain new revival documents.
    Hence, it was the duty of the
    plaintiff bank to produce the

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    documents atleast at the time of
    examination of its witness. The
    necessary observation and discussion
    has been made by me in earlier
    paragraphs. For these reasons, I do
    not agree with the above arguments
    advanced by the learned advocate
    Shri C.D. Purohit on behalf of the
    plaintiff bank.”

    69. On perusal of the above findings, it is

    clear that the Trial Court has failed to

    appreciate that unless there is an order

    passed by the Court to produce the revival

    documents by the plaintiff bank, no adverse

    inference could have been drawn against the

    plaintiff bank. When it has come on record in

    the deposition of the witness of the

    plaintiff bank that no such documents are

    available on the file of the plaintiff bank,

    more particularly, when application at Exh.47

    was rejected by the Trial Court, merely

    because a request was made by the defendants

    to produce such documents, the duty could not

    have been fastened upon the plaintiff bank to

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    produce the documents to draw adverse

    inference in favour of defendant nos. 2 to 4

    only.

    70. On perusal of application at Exh.47, it

    appears that it was an application dated

    12.12.1986/15.01.1987 wherein the defendants

    had called upon the plaintiff bank to produce

    the documents containing the exchange of

    letters in the year 1984, 1985 and 1986 for

    different accounts, exchange of telegrams,

    minutes of conferences which had taken place

    in the year 1984 during the said period,

    documents executed during the year 1984-1985.

    The Trial Court passed the following order

    below Exh.47 on 05.08.1987:

    “ORDER BLOW EX, 47.

    1. Heard the learned advocate for
    the defendant and learned advocate
    for the plaintiff and read the
    application and reply (Ex. 48). By
    this application, the defendant
    sought the production of documents
    under the provisions of 0.11 R. 14

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    of Civil Procedure Code, the
    plaintiff bank has filed this suit
    against the defendants for the
    recovery of Rs. 3,98,54,766-30/- The
    defendant No.1, is a Limited company
    and defendant No.2 to 4 are the
    Chairman and Directors respectively.
    It is the case of the plaintiff that
    on request of the defendants, the
    plaintiff bank granted various cash
    credit facilities to the defendant
    No.1, and defendant No.1, had taken
    advances under Various accounts.
    After that, the defendants have
    failed to repay as per the term, so
    the plaintiff bank file this present
    suit for the recovery of dues again
    the defendants. Along with plaint,
    the plaintiff has produced, all
    relevant documents. In written
    statement, (Ex.43), the defendant
    No.1, has admitted suit transaction
    with the plaintiff bank.

    2. By this present application, the
    defendant has sought production of
    the correspondence and telegrams and
    proceedings of the meetings and
    documents. All this documents are
    within the knowledge of the
    defendants under the provisions of
    0.11 R. 14 of C.P.C.. Court may pass
    the order of production of documents
    relating to any matter in question.
    Which is in the possession of the
    other side. In the present case, the
    plaintiff suit is based on bank
    account and on the documents, which
    have been executed by defendants in
    favour of the plaintiff bank and
    production, which is sought by the

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    defendants are within the knowledge
    of the defendants. So, in that
    circumstances at present I do not
    see any necessity to pass the order
    for the production of the documents
    as prayed for by the defendants.
    With this consideration, the present
    application, deserves to be
    rejected. So, I pass the following
    order.

    
                                                                       ORDER
    
                                                    Application                is         hereby               stood
                                                    dismissed."
    
    

    71. On perusal of the above order together

    with application at Exh.47, it appears that

    there was no demand for production of revival

    documents from the plaintiff bank and even

    otherwise if it is presumed that the revival

    documents were called for from the plaintiff

    bank, the Trial Court has rejected the same.

    In view of such facts and considering the

    following decisions of the Hon’ble Apex

    Court, no adverse inference could have been

    drawn by the Trial Court partially against

    defendant nos. 2 to 4 by presuming that there

    would be some modification or change in the

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    terms of guarantee in the revival documents:

    1) Hiralal And Others vs Badkulal and Others

    reported in 1953 (0) AIR (SC) 225 wherein

    the Hon’ble Apex Court held that a practice

    has grown up in the Indian procedure that

    those in possession of important documents or

    information lying by, trusting to the

    abstract doctrine of the onus of proof, and

    failing, accordingly, to furnish to the

    courts the best material for its decision.

    With regard to third parties this may be

    right enough they have no responsibility for

    the conduct of the suit; but with regard to

    the parties to the suit it is, an inversion

    of sound practice for those desiring to rely

    upon a certain state of facts to withhold

    from the court the written evidence in their

    possession which would throw light upon the

    proposition.

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    2) National Insurance Co. Ltd., New Delhi

    Versus Jugal Kishore and Others reported in

    (1988) 1 SCC 626 wherein Hon’ble Apex Court

    held that it is the duty of the party which

    is in possession of a document which would be

    helpful in doing justice in the cause to

    produce the said document and such party

    should not be permitted to take shelter

    behind the abstract doctrine of burden of

    proof. This duty is greater in the case of

    instrumentalities of the State such as the

    appellant who are under an obligation to act

    fairly. It is the obligation of the party in

    possession of a helpful document to produce

    it in court to ensure justice is served. The

    Court held that an insurance company wishing

    to cap its liability at the statutory minimum

    must explicitly file a copy of the policy.

    Failing to produce this vital document

    prevents the company from taking shelter

    behind the doctrine of burden of proof.

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    3) Gurnam Singh And Others Versus Surjit

    Singh and Others reported in 1975 4 SCC 404

    wherein Hon’ble Apex Court held that in view

    of the omission to file the most important

    document, it was not possible to ascertain

    the dispute or issue in the case. The

    omission to file a document which was in the

    power and possession of the appellants

    entitled the High Court to draw an adverse

    inference against the appellants and in that

    view, they had allowed the appeal and

    dismissed the suit. The suppression of the

    document justified the drawing of an adverse

    Inference that if it was produced, it would

    have established the appellant’s case.

    4) Eureka Forbes Limited Versus Allahabad

    Bank and Others reported in (2010) 6 SCC 193

    wherein Hon’ble Apex Court held that it is an

    accepted precept of appreciation of evidence

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    that a party which withholds from the Court

    best evidence in its power and possession,

    the Court would normally draw an adverse

    inference against that party. In any case,

    the bona fide of such a party would

    apparently be doubted. the Maxim Nullus

    commodum capere potest de injuria sua propria

    has a clear mandate of law that, a person who

    by manipulation of a process frustrates the

    legal rights of others, should not be

    permitted to take advantage of his wrong or

    manipulations. Hon’ble Apex Court held as

    under:

    “37. It is an accepted precept of
    appreciation of evidence that a
    party which withholds from the Court
    best evidence in its power and
    possession, the Court would normally
    draw an adverse inference against
    that party. In any case, the bona
    fide of such a party would
    apparently be doubted. The appellant
    was possessed of best evidence in
    regard to the goods of which they
    had taken possession on 7th August,
    1987, in fact were hypothecated to
    the Bank. These goods including
    machines were sold by the appellant

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    prior and subsequent to the issue of
    the advertisement dated 12th March,
    1988. Thus, the best evidence in
    this regard, was obviously in
    appellant’s power and possession
    which they did not produce before
    the Court despite prolonged
    litigation. As such, we would have
    no hesitation in drawing some
    adverse inference against the
    appellant in this behalf.”

    5) Gopal Krishnaji Ketkar Versus Mohamed Haji

    Latif & Others reported in AIR 1968 SC 1413

    wherein it was held that even if the burden

    of proof does not lie on a party the Court

    may draw an adverse inference if such party

    withholds important documents in his

    possession which can throw light on the facts

    at issue. It is not a sound practice for

    those desiring to rely upon a certain state

    of facts to withhold from the Court the best

    evidence which is in their possession which

    could throw light upon the issues in

    controversy and to rely upon the abstract

    doctrine of onus of proof.

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    6) ATYAM VEERRAJU AND OTHERS Versus PECHETTI

    VENKANNA AND OTHERS reported in AIR 1966 SC

    629 wherein it was held that whether or not

    a permanent tenancy was granted is a question

    of construction of the Sanad. Only the Sanad

    could have shown what interest was rented by

    it. The most striking feature of the case

    which tilted the scales against the

    defendants was non-production of the Sanad.

    The defendants deliberately withheld the

    Sanad and therefore, they could made

    presumption against the defendant to their

    disadvantage consistent with the facts. The

    court held that, if produced, the Sanad would

    have shown that the tenancy is not permanent.

    7) State of Madhya Pradesh v. Kaluram

    reported in AIR 1967 SC 1105 wherein it was

    held that, a creditor loses its right against

    a surety if it negligently allows the

    principal debtor to dispose of the secured

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    goods, thus impairing the surety’s eventual

    remedy to recover their losses. Further, S.

    141 is not restricted strictly to the formal

    “property in the goods” passing, but

    encompasses any active security the creditor

    holds to protect the debt. Because the

    State’s inaction allowed the goods to be

    removed, the eventual remedy of the surety

    against the principal debtor was impaired.

    Under the rules of equity and Section 141,

    the Court held the surety was discharged to

    the extent of the value of the security lost.

    8) The State Bank of Saurashtra v. Chitranjan

    Rangnath Raja and Anr. reported in AIR 1980

    SC 1528 wherein it was held that under

    Section 141 of the Indian Contract Act, 1872,

    a surety is discharged from liability to the

    extent of the security lost if the creditor

    negligently parts with or loses the principal

    debtor’s pledged goods. The Court established

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    that a creditor has an obligation to

    safeguard securities entrusted to them. Under

    Section 141, a surety is entitled to the

    benefit of every security the creditor has

    against the principal debtor at the time the

    contract of suretyship is entered into.

    Because the Bank’s negligence impaired the

    surety’s eventual right to step into the

    creditor’s shoes and recover the debt from

    the pledged assets, the surety is discharged

    to the extent of the value of the lost

    security.

    9) The Indian Bank, Madras v. Krishnaswamy

    and Ors. reported in AIR 1990 Madras 115

    wherein the hon’ble Madras High Court

    examined the rights of a creditor against

    guarantors and affirmed that when a Bank

    executes a fresh arrangement with the

    principal debtor without the surety’s

    consent, it amounts to novation, discharging

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    the surety from liability.

    10) Syndicate Bank v. Pamidi Somaiah (D) and

    Anr. reported in AIR 2002 AP 12 wherein the

    Hon’ble Andhra Pradesh High Court held that

    if a suit abates against a deceased principal

    debtor, the liability of the surety is

    consequently extinguished. The court ruled

    that since the surety’s obligation is co-

    extensive and collateral, the discharge of

    the principal debt removes the legal basis

    for pursuing the surety.

    72. With regard to the contention raised on

    behalf of the defendant nos. 2 to 4 that

    the guarantees given by them would stand

    discharged in view of the extinguishment of

    the security i.e. hypothecation of the

    stock for which cash credit limit was

    sanctioned by the plaintiff bank is

    concerned, defendant no.1 company at the

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    relevant point of time had also given the

    collateral security by way of mortgage of

    immovable property and defendant nos. 2 to

    4 have given the security as personal

    guarantee and therefore, it cannot be said

    that the guarantees would be discharged as

    there is no dispute with regard to the

    terms and conditions of the guarantees. The

    Trial Court has not gone into this aspect

    nor any finding is arrived at by the Trial

    Court. Even on perusal of the Ledger

    Account at page no. 753 of the paper book,

    it clearly shows that there were

    outstanding dues in the cash credit account

    of defendant no.1 company with the

    plaintiff bank which has turned into Non

    Performing Asset (NPA) after closure of the

    business on 11.02.1983. In view of above

    factual scenario, reliance placed on the

    various decisions in supports of such

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    contention would not be applicable in facts

    of the case.

    73. In view of above conspectus of law, the

    trial Court was not justified in drawing

    the adverse inference against the plaintiff

    bank and in favour of defendant nos. 2 to 4

    only. Therefore, point of determination

    nos. 1 to 4 are answered in the

    affirmative.

    74. So far as point for determination no. 5

    is concerned, the appeal is already

    dismissed qua defendant no.5 by the order

    dated 23.01.2023 as the appellant bank

    failed to serve the defendant no.5 bank.

    Therefore, findings regarding issue no.13

    framed by the Trial Court that the

    plaintiff bank alone is not entitled to

    recover the amount from the hypothecated

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    undefined

    and mortgaged property of defendant no.1

    and there is charge of defendant no.5 also

    is not required to be considered.

    75. So far as adverse inference is drawn

    against the plaintiff bank to dismiss the

    suit qua defendant nos. 2 to 4, the decree

    is accordingly ordered to be modified by

    decreeing the suit against the defendant

    nos. 1 to 4 to pay Rs.3,62,15,577.61

    (Rupees Three Crores sixty two lakhs

    fifteen thousand five hundred seventy seven

    and sixty one paise only) to the plaintiff

    bank with interest at the rate of 12% per

    annum jointly and severally from the date

    of the suit till the decretal amount is

    realised by the plaintiff bank. The

    plaintiff bank is entitled to recover the

    said amount from the defendant nos. 1 to 4.

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    C/FA/53/1993 CAV JUDGMENT DATED: 21/07/2026

    undefined

    76. For the foregoing reasons, the appeal

    is partly allowed. Decree be drawn in the

    aforesaid terms. No order as to cost.

    (BHARGAV D. KARIA, J)

    (L. S. PIRZADA, J)

    After pronouncement of the Judgment, learned

    advocate Mr. Vidit S. Sharma for the respondent

    No.4 prays that the operation and the

    implementation of the Judgment may be stayed for

    a period of four weeks.

    In view of the fact that the Trial Court has

    already exonerated the defendant no.4 as the suit

    was dismissed against the defendant no.4, the

    operation and implementation of the judgment

    shall not come into effect till 23rd August, 2026.

    (BHARGAV D. KARIA, J)

    (L. S. PIRZADA, J)

    RAGHUNATH R NAIR

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