The mere statement of account certified under the Bankers Book of Evidence Act was insufficient to establish the defendant's liability as a guarantor for the cash credit facility, as the plaintiff-Bank failed to prove the advancement of the loan and the relationship between the parties.

JUDGMENT :

1. The appellant in this second appeal questions the judgment and decree passed by learned Subordinate Judge, Balangir (as then) in T.S. No. 5 of 1983 confirmed by learned Addl. District Judge, Balangir in the first appeal under section 96 of the Code of Civil Procedure which stood numbered as Title Appeal No. 71/57 of 1991-92.

The appellant is the unsuccessful plaintiff as also the appellant in the first appeal. The suit has been filed by the appellant-Bank as the plaintiff for recovery of a sum of Rs. 85,435.32 by selling of the land described in the schedule of the plaint as mortgaged before it by the respondent-defendant, the guarantor for the cash credit facility granted in favour of Madhusudan Pansari, running the business in the name and style of M/s. Sarita Clothes Store.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The plaintiff-Bank’s case is that cash credit facility has been granted to the extent and limit of Rs. 50,000/- to one Madhusudan Pansari with minimum interest of 16.5% per annum for the purpose of cloth business run in the name and style of M/s. Sarita Clothes Store. Said Madhusudan Pansari is thus said to be the debtor. This defendant for the purpose of said cash credit facility is said to have stood as guarantor. It is stated that the defendant had mortgaged the property described in the schedule of the plaint as collateral security for smooth recovery of the outstanding dues on account of said cash credit facility to Madhu Sudan, in case of default in due payment by the debtor which in the case has been done.

It is further stated that the mortgage was an equitable one by deposit of the title deeds by the defendant with the plaintiff. The stocks of the cloth store also stood hypothecated. The allegation is also levelled that in violation of agreement of hypothecation, cash credit facility holder namely Madhu Sudan sold away the entire stock hypothecated without the knowledge of the plaintiff. Madhu Sudan died on 7.6.82 and the business came to total close.

4. The defendant in the written statement denied the grant of any cash credit facility by the plaintiff-Bank in favour of Madhusudan Pansari and that the same to have been so availed of by said Madhusudan. It is stated that the defendant had never made a request for the purpose. The execution of pro-note and agreement of hypothecation by Madhusudan in favour of the bank have also been denied. It is next stated in the alternative that even if there remains any promissory note, the same is invalid in the eye of law.

It is stated that the defendant has never executed any such deed of guarantee in favour of the plaintiff-Bank and had simply lent his signatures on some blank forms when no such cash credit facility had been availed of by Madhusudan. Thus it is said that the question of defendant standing as guarantor does not arise. The deed of guarantee if at all is there is therefore said to be of no legal effect and consequence. The allegation against the credit facility holder, Madhusudan Pansari is also defended by this defendant stating that said Madhusudan had never sold the stocks of the cloth store and those were actually destroyed when the shop room got gutted with fire on 28.9.90 which was to the knowledge of the plaintiff-Bank. It is however again stated that the stocks of that cloth store have been insured by the plaintiff-Bank and they have received the compensation for destruction of the stocks.

This defendant is the elder brother of Madhusudan Pansari and claims to have received no such assets of Madhusudan after his death in presence of his other successors.

5. The trial court on the above rival pleadings has framed in total 12 issues. The crucial finding has been rendered on issue no.4 which has ultimately led to the dismissal of the suit.

Finding stands that the plaintiff-Bank has failed to prove that Madhu