JUDGMENT AND ORDER :

Heard Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. B. Haldar and Mr. G. Bhardwaj, the learned Counsels appearing for the appellants in both the appeals, Mr. B.D. Das, the learned Senior Counsel assisted by Mr. D. Thaosen and Mr. D. Saikia, the learned Counsels appearing for the respondent No.1 in both the appeals.

2. These two regular first appeals are directed against the judgment and decree dated 19.09.2009, passed by the learned Civil Judge No.3, Kamrup, Guwahati, in Money Suit No. 300 of 2005, by which the suit filed by the respondent No.1 herein for recovery of a sum of Rs.1,77,00,000/-(Rupees One Crore Seventy seven lakh only) was decreed.

3. Against the said decree, while RFA No. 30/2010 has been filed by the by defendants No. 1, 2, 5 and 6, the defendants No.3 and 4 has filed RFA No.32/2010. Hence, for the sake of convenience, the parties are referred herein as their status of parties in the suit.

4. The case in brief is that AIDC Ltd. had sanctioned a loan to the defendant No.1 Company. Defendant No.2, 5 and 6 are the Directors of the Defendant No.1 Company. Defendant No.3 is the wife of a deceased Promoter-Director of the Defendant No.1 Company. The Defendant No.4 is the son in law of the deceased Promoter-Director of the Defendant No.1 Company. The defendant No.1 Company resolved to borrow a sum of Rs.73.30 Lakh only from the plaintiff under IDBI refinance Scheme. The said loan along with equity participation of Rs.5.50 Lakh was sanctioned and disbursed to the defendant No.1. A loan agreement dated 10.08.1992 was executed by the defendant No.1 and the plaintiff. Alleging non-repayment of loan and interest, the plaintiff had instituted a suit for recovery of money as indicated above.

5. The defendants took a defence that they were assured of financing the installation of 36 looms with accessories for manufacturing cloth. However, no money was given to the defendant No.1, and instead money was paid directly to the suppliers. However, the defendant No.1 only received 12 looms with accessories, which were installed, next 12 looms were sent without accessories, which could not be installed and the remaining 12 looms were never supplied or installed as no money was disbursed to the supplier. No steps were taken for supply of raw materials. At such a juncture, the loans were recalled and the factory was taken over. A part of the assets which were taken over was sold and, as such, the defendants prayed for dismissal of the suit.

6. The trial court framed as many as 9 issues, as follows:-1. Whether there is cause of action for the suit?

2. Whether the suit is maintainable in law and facts?

3. Whether the suit is barred by limitation?

4. Whether the suit is bad for non-joinder of necessary party?

5. Whether the suit is bad for waiver, estoppels and acquisance?

6. Whether the defendant had taken loan from the plaintiff?

7. Whether there was equity participation in the defendant company by the plaintiff to the extent of Rs.5.50 lakhs?

8. Whether the defendant company failed to pay Rs.1,77,00,000/-to the plaintiff?

9. Whether the plaintiff is entitled to decree as prayed for?

7. The plaintiff examined one witness and the defendants examined 3 witnesses. The issues No.1 and 2 were decided in favour of the plaintiff by holding that there was cause of action for the suit and that the suit was not maintainable. In respect of issue No.3, the learned trial court after discussing some of the materials on record held that the suit was not barred by limitation. In respect of issue No.4, it was held that the suit was not bad for non-joinder of the State of Assam and IDBI. In respect of issue No.5, it was held there was no evidence to hold that the suit was bad for waiver, estoppel and acquiescence. In respect of issue No.6, it was held that it was an admitted position that the defendants had taken a loan of a sum of Rs.73.30 Lakh under IDBI Re-finance Scheme at the terms and conditions set forth in the agreement dated

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