The court emphasized the principle of estoppel and the co-extensive liability of the surety with the principal debtor. It also highlighted the requirements for realizing a loan from a surety.

JUDGMENT :

Heard the learned senior counsel for the appellant but no one turns up on behalf of respondents in spite of repeated calls, hence, this appeal is heard ex-parte against the respondents.

2. This Second Appeal under Section 100 of the Code of Civil Procedure is preferred against the judgment and decree dated 29.01.2005 passed by learned Additional District Judge, (Fast Track Court No. II), Civil Court, Gumla in Title Appeal no. 21 of 1998 whereby and whereunder, in a judgment of concurrence, learned First Appellate Court has dismissed the appeal on contest without costs and confirmed the judgment and decree passed by the Learned Subordinate Judge, III, Gumla in Title (Money) Suit No. 12 of 1990 by which learned Subordinate Judge III, Gumla decreed the suit of the plaintiff and declared that the deduction of Rs. 10,765.52/- and Rs. 24,030.70/- from the D.B.Account of the plaintiff by defendant no. 2 on 11.03.1983 and 23.02.1989 respectively is illegal and not binding upon the plaintiff and also held that the plaintiff is entitled to withdraw the deducted amount from his D.B. account with the bank with simple interest @ 5% per annum from the date of filing of the suit till recovery.

3. The case of the plaintiff in brief is that the plaintiff had one Double Benefit Account with the defendant no. 2 – the appellant bank, the defendant no. 1 took a loan of Rs. 63,000/- for purchase of a trekker from the defendant no. 2. Both the defendant nos. 1 and 2 came to the plaintiff and obtained his signature on some document saying that since the defendant no. 1 has taken a loan for purchase of a tractor so he should become a witness. Both the defendants practiced fraud upon the plaintiff. It is the further case of the plaintiff that all of a sudden, the defendant no. 2 gave a letter dated 23.02.1989 to the plaintiff intimating him that it has deducted a sum of Rs. 24,030.70 from the said Double Benefit Account of the plaintiff on 23.02.1989 and Rs. 10765.52 on 11.05.1983 and prior to that, the plaintiff was never given any notice to show-cause and the plaintiff approached the defendant no. 2 and wanted to know about its illegal action of deduction of money from the account of the plaintiff. It is further alleged that the defendant no. 2 had not made any effort to realize the loan from the defendant no. 1 and that the defendant no. 2 should have seized and sold the trekker for default in payment of loan hence, the plaintiff filed the suit with the following prayers:

(a) that it be declared that the deduction of Rs. 10,765.52 /- on 11.05.1983 and Rs. 24,030.70/- on 23.02.1989 from the Double Benefit account of the plaintiff by the defendant no. 2 is illegal and not binding upon the plaintiff.

(b) That it be also declared that the plaintiff is entitled to withdraw the so-called deducted amount along with its interest up to the date of payment.

(c) That, any other relief or reliefs to which, the plaintiff is entitled for cost of the suit.

(d) cost of the suit.

4. The defendant no. 1 in his written statement, besides challenging the suit on various technical grounds, pleaded that the trekker purchased by the defendant no. 1, met with an accident twice and the business of the defendant no. 1 failed, causing heavy loss and the partners of the defendant no. 1 could not manage to start the business again and the trekker had to be sold and the money was distributed among the partners. The defendant no. 1 admitted that his trekker was financed by the defendant no. 2 and the plaintiff was fully aware about the fact that the plaintiff and the defendant no. 1 will be liable for repayment of the money, financed by the bank, for purchase of the trekker. It is then pleaded that the plaintiff avoided to repay money and wanted to get away from the liability of repayment of the money financed by the defendant no. 2- bank. The defendant no. 1 further pleaded that the plaintiff was one of his partners in the business and as business incurred losses hence, the p