Point of Law : When there is no embargo on civil court to record evidence on preliminary issue, dismissal of suit on concluding that plaintiff did not produce material in support of his allegation would be wholly unsustainable.

JUDGMENT :

Challenging judgment and decree dated 04.01.2020 passed by XXXV Additional City Civil and Sessions Judge, Bengaluru (CCH36) in O.S.No.688/2019, this appeal is filed.

2. Appellant was plaintiff; while respondents herein were defendants no.1 to 6 respectively (Hereinafter referred to as per their ranks before trial Court).

3. Brief facts as stated are that, plaintiff filed O.S.No.688/2019 against defendants seeking for a decree to declare documents mentioned in schedule -B as void and illegal and to declare that plaintiff is discharged from guarantee and surety given by him to defendant no.1 - Bank for repayment of loan granted to defendant no.3 and that schedule -'A' property is not available as security for repayment of loan availed by defendant no.3 from defendant no.1 - Bank and for permanent injunction against defendants no.1 and 2 from taking any coercive action against plaintiff and from alienating suit schedule property etc. In plaint, it was stated that plaintiff is owner of property bearing Sy.No.250, Municipal No.251, Old No.499/7, PID No.88-12-251 measuring 7159 Sq. ft. with building, (referred to as 'schedule property' for short), situated at main road, Banasawadi within jurisdiction of Bruhat Bengaluru Mahanagara Palike ('BBMP' for short). Said property had fallen to share of plaintiff in terms of compromise decree dated 29.01.1999 passed in O.S.No.10331/1995. Thereafter plaintiff was in possession of same.

4. Defendant no.3 was a company incorporated under Companies Act. Defendant no.4 was it's director and defendant no.5 was his wife. Defendant no.6 was a tenant of plaintiff occupying a portion of schedule -'A' property. Defendant no.1 - a scheduled Bank and defendant no.2 - an Asset Reconstruction Company & assignee of defendant no.1. During 2010, defendant no.3 represented by defendant no.4 approached defendant no.1 for financial assistance for its business. Defendant no.1 provided term loan of Rs.130.00 lakhs to defendant no.3. It also provided Open Cash Credit Limit ('OCCL' for short) of Rs.300.00 lakhs in favour of defendant no.3 against hypothecation of raw-materials, work in progress, finished goods and book debts. OCCL was secured against personal guarantee of defendants no.4 and 5. It was specifically asserted by plaintiff that plaintiff had not executed any letter of guarantee in favour of defendant no.1. He also did not pledge suit schedule property as security to defendant no.1 for loan/credit limit extended to defendant no.3.

5. Even when term loan sanctioned by defendant no.1 to defendant no.3 was increased to Rs.430.00 lakhs, plaintiff did not offer schedule property as security to defendant no. 1 - Bank. He also did not execute any letter of guarantee.

6. During July, 2011, defendant no.1 -bank provided further OCCL of Rs.450.00 lakhs to defendant no.3 i.e., a total OCCL of Rs.750.00 lakhs (Rs.300.00 lakhs + Rs.450.00 lakhs). It was stated that at the instance of defendant no.3 and defendant no.4, plaintiff executed letter of guarantee dated 16.07.2011 and stood as guarantor for repayment of OCCL of Rs.750.00 lakhs. He also executed registered memorandum of deposit of title deeds on 25.07.2011 mortgaging suit schedule property in favour of defendant no.1 for repayment of OCCL of Rs.750.00 lakhs. It was further stated that during August 2012, plaintiff addressed a letter to defendant no.1 for the purposes of Section 18 of Indian Limitation Act.

7. However, it is alleged that defendant no.1 in collusion with defendant no.3 falsely mentioned in the letter that plaintiff had executed guarantee agreement dated 29.09.2010 in favour of defendant no.1. It is alleged that this amounted to material alteration and variation of terms of agreement.

8. Thereafter, it is stated that defendant no.1 sanctioned further additional term loan without knowledge or notice of plaintiff. In order to bind plaintiff to this additional liability several documents were concocted by fabricating signature of plaintiff, by de