Bank, if can claim full debt from sureties.

Mishra, J.

For the Defendants 2 to 4 (third defendant has been substituted by this legal representatives) have appealed. It is not in dispute that the plaintiff-Bank entered into a contract of cash credit loan as well as medium term loan on the hypothecation of the schedule of properties with the principal debtor Messrs. Discon Foods (P) Ltd., (first defendant), a company incorporated under the Indian Companies Act and carrying on business in processing and exporting sea foods. The cash credit limit was Rs. 3, 00, 000/- and medium term loan limit was Rs. 75, 000/- Defendants 2 and 3, who were at the relevant time, Directors of the first defendant-company, stood surety for the cash credit loan to the first defendant-company and defendants 3 and 4 stood surety for the medium term loan. This was, however, in April, 1974, and continued until, it is said, the second defendant resigned from the directorship of the first defendant Company on 19.7.1974 and the third defendant resigned from the directorship with effect from 27.10.1975. It appears that one M. C. Agarwal and Mrs. Pushpa Agarwal as entered new directors and passed a letter dated 22.11.1975 to defendants 2 and 3 with regard to the discharge of the loan due to the plaintiff.

2. According to the defendants, when the Agarwals took over, they entered into some sort of arrangement with the creditor Bank and thus they stood discharged as sureties. The creditor Bank found that the principal debtor had not cleared the cash credit loan amounting to Rs. 2, 14, 379.22 and medium term loan amounting to Rs. 2, 14, 379.22 and medium term loan amounting to Rs. 48, 701.61. Hence, it filed the suit claiming moneys, both principal and interest from defendants 1, 2 and 3 jointly and severally for the cash credit loan and defendants 1, 3 and 4 for the medium term loan.

3. On the main questions that were raised in the suit, whether the novation put forward by defendants 2 and 3 is true, valid and binding on the plaintiff and whether there has been any variation in the terms of the contract between the plaintiff and the first defendant and the sureties are discharged thereby, learned trial Judge has found that the plea of novation set up by defendants 2 to 4 is illusory and that they are not absolved of their liability and there is no material to establish that there has been any variation in the terms of the contract so as to attract the operation of Section 133 of the Contract Act and discharge the liability of the second defendant.

3. Learned Counsel for the appellants has assailed the said finding and taken us through the evidence in record. He has however, not been able to dispute the proposition that in case the defendants/appellants pleaded a novation so as to give rise to a new contract leading to the discharge of the surety or such variation in the terms of the original contract attracting Section 133 or Section 135 of the Contract Act, the burden of proof for the same was upon them.

4. Learned trial Judge has looked into all such materials and found the evidence inadequate to hold in agreement with the case of the defendants. We find nothing particular drawn to our notice to take a different view. We shall be only rewriting the judgment of the trial Court in this behalf if we record what is stated in Exts. P-2, P-3, P-4, P-5, P-6, P-7, P-9 and P-10 or refer to the evidence of P.W. 1, who alone has been examined on this aspect of the matter on behalf of the plaintiff Bank and that of D.Ws. 1 and 2, who have been examined on behalf of the defendants along with the documents that have been produced on their behalf particularly Ext. D-5, a letter allegedly written by one Mr. Agarwal (not examined) dated 22.11.1975 as the Managing Director of the first defendant-company to defendants 2 and 3, wherein he has referred to his discussions with the Bank and the proposal given by the company for the repayment of the amounts in instalments. We concur with the findings of the learned trial