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2004 Supreme(Bom) 651

A.M.KHANWILKAR
SICOM Limited – Appellant
Versus
Harjindersingh & others – Respondent


Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The suit is filed for recovery of loans (term, corporate, and short-term) against four defendants who are guarantors for a company that defaulted on repayment (!) (!) .

  2. The plaintiffs have amended their claim to exclude penal interest and now seek recovery based on permissible interest, with the total claim amounting to a specified principal and interest sum, including future interest at 18% per annum (!) .

  3. The defendants raised multiple defenses, including:

  4. The suit was filed in a jurisdiction where no part of the cause of action arose.
  5. The suit is barred by limitation because the guarantee deeds were executed several years prior.
  6. No suit was filed against the principal debtor, and hence the present suit is not maintainable.
  7. The plaintiffs failed to specify the basis of their claim, especially regarding interest.
  8. The security provided by the principal debtor was sufficient, and the plaintiffs should have enforced it instead of suing guarantors.
  9. The documents relied upon were obtained by obtaining signatures on blank documents.
  10. The statement of claim was not certified as required by law, and the plaintiffs did not maintain regular books of accounts.
  11. The claim for interest lacks a proper basis or calculation method.

  12. The court found that:

  13. The order granting leave under jurisdictional clause was valid and not challenged.
  14. The suit was filed within the limitation period, considering the nature of the guarantee as a continuing guarantee.
  15. The suit is maintainable even without suing the principal debtor, as the guarantors are independently liable.
  16. The plaintiffs adequately provided the basis for their claim, including interest calculations, supported by relevant contractual documents.
  17. The objection regarding non-compliance with certification requirements and maintenance of books was not substantiated.
  18. The defendants' defenses regarding jurisdiction, limitation, and enforceability were rejected.

  19. The court granted conditional leave to the defendants to defend, requiring them to deposit the claimed amount within three months. If the deposit is made, the suit may be transferred to a commercial court; otherwise, the suit will be decreed for the claimed amount with interest (!) (!) .

  20. The court emphasized that the liability of the guarantors is co-extensive with that of the principal debtor and that the enforcement of the guarantee does not depend on prior enforcement against the principal debtor, especially in the case of a continuing guarantee.

  21. The court dismissed the defendants' contentions regarding the lack of jurisdiction, limitation, and procedural deficiencies, affirming the enforceability of the guarantee and the plaintiffs' right to proceed with the suit.

Please let me know if you need further analysis or specific legal advice related to this case.


JUDGMENT - KHANWILKAR A.M., J.:—This summary suit is filed on the assertion that the plaintiffs had advanced term loan, corporate loan and short term loan to one Overseas Cables Limited, of which all the 4 defendants herein are Directors. Various documents were executed in respect of the said transaction. The defendants stood guarantors for the said transaction and executed four separate continuing guarantee deeds. The said Overseas Cables Limited failed to reply the loan amounts, for which demand was raised by the plaintiffs on 17th March, 2001 and also on 13th November, 2000 and, once again on 17th November, 2000. As no response was received from said Overseas Cables Limited, the plaintiffs invoked the guarantees against the defendants on 12th June, 2001. As the defendants failed to comply with the demand raised by the plaintiffs, which was founded on the conditions of the agreements arrived at between the parties, the plaintiffs have filed the present suit for the following reliefs :

"(a) that the defendants be jointly and severally ordered and decreed to pay the plaintiffs a sum of Rs. 1,56,86,428/- under the said Term Loan as per Particulars of Claim being Exhibit 'F-1' with fu
































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