The onus of proof lies on the guarantor to establish the discharge of his liability under Sections 139 and 141 of the Contract Act, and the creditor is required to provide an inventory of the hypothecated goods to explain their existence or non-existence.

S. C. MOHAPATRA, J.

( 1 ) DEFENDANT No. 2 is appellant against a decree making him jointly and severally liable for the amount decreed.

( 2 ) PLAINTIFF is a Bank constituted under the State Bank of India Act having a branch at industrial estate, Rourkela. On 17-12-1982 plaintiff sanctioned a sum of Rs. 1,10,000/-by way of cash credit Mandi facility and Rs. 79,000/- by way of cash credit bill facility to defendant No. 1. Defendant No. 2 stood guarantee for the amounts to be advanced and both defendants Nos. 1 and 2 executed required documents. Defendant No. 1 secured the loan facility by pledging of goods, both raw materials i. e. different chemicals, finished goods and merchandise. When relationship so continued, defendant No. 1 defaulted in making payments. Notice to him by plaintiff remained unreplied. Hence, suit has been filed for recovery of the amount due including interest at the rate of 14 per cent per annum for a sum of Rs. 91,762. 37 with pendente lite and future interest. 2a. Defendant No. l did not contest. Case of defendant No. 2 is that he only signed blank form since defendant No. 1 was his close friend who brought those forms. He denied to have executed any promissory note or to have executed any delivery letters. His specific case is that pledged goods were not insured though required under the contract. Since plaintiff did not take adequate care in respect of the goods, the same were lost and accordingly, he is not liable as guarantor which stood discharged.

( 3 ) PLAINTIFF examined two witnesses and proved documents marked as Exts. 1 to 41 series in support of his case. Defendant No. 2 examined two witnesses only. On the basis of these materials trial Court held that defendant No. 1 had taken loan and is liable as claimed in the suit. Trial Court has further held that defendant No. 2 executed the necessary documents and became the guarantor. As regards discharge of liability of defendant No. 2, trial Court held that in absence of evidence that goods hypothecated have been lost on account of plaintiff, defendant No. 2 is liable. This is the grievance of defendant No. 2 in this appeal.

( 4 ) MR. A. K. Mohanty, learned counsel for defendant No. 2 appellant, submitted that liability of defendant No. 2 has stood discharged on account of loss of the hypothecated goods due to negligence of plaintiff. He relies upon the provisions of Ss. 139 and 149 of Contract Act in support of his contention. Mr. P. V. Ramdas, learned counsel for plaintiff-respondent while not disputing that in case it is found that on account of negligence of plaintiff goods hypothecated were lost, Ss. 139 and 141 of the Contract Act may not be attracted submitted that defendant No. 2 who is to get advantage of these provisions is required to prove necessary facts to draw inference in his favour. As defendant No. 2 has not proved the facts trial Court has rightly found that negligence of plaintiff has not been proved and there is no scope for interference with the decree and principle liability of goods pledged would not be attracted to hypothecated goods.

( 5 ) SINCE defendant No. 2 seeks to get excluded from his liability by relying upon Ss. 139 and 141 of the Contract Act, onus lies on him to prove the requirements of those provisions of law. It goes without saying that no evidence can be adduced unless there is supporting assertions in the pleading of the party in that respect. Defendant No. 2 has asserted in paragraph 10 of the written statements in this regard which reads as follows :- "that the defendant alternatively pleads that the defendant No. 2 is discharged of its liability for the variance and non-performance of the contract by the plaintiff. The plaintiff under the contract was to grant loan on security of goods, fully insured, but neither the goods were insured, nor the plaintiff took any step to safeguard the security and in fact is not under its control and has lost the same impairing the rights of the defendant No. 2 and th