The main legal point established in the judgment is the interpretation of the liability of a guarantor under the Indian Contract Act, 1872, Section 133.

J.M. MALIK, CHAIRPERSON.-This appeal has been preferred against the judgment dated 16th March, 2005 pronounced by the D.R.T., Lucknow, wherein the respondent-bank was found entitled for issuance of recovery certificate to the tune of Rs. 47,67,628/- as on 15th July, 2001 together with pendente lite and future interest @ 17.75% per annum with quarterly rest on term loan and open cash credit facility and pendente lite and future interest @ 18.75% per annum, with quarterly rest in respect of temporary overdraft facility on and from 16th July, 2001 till full realization is made from the appellants/ defendants. Although the instant appeal has been filed by four above said appellants/defendants, yet, the arguments were mainly advanced for and on behalf of Smt. Manorma Jaiswal, who has been arrayed as appellant No. 4 in this appeal.

2. I have heard the Counsel for both the parties and have perused the written submissions filed on behalf of the appellants. The principal argument urged the Counsel for the appellants was that appellant No.4 is not the guarantor of the main borrower, Black Ocean Chem India Pvt. Ltd. The attention of the Court was invited towards page No. 7 of the original application, where there is a specific pleading on behalf of the bank at para C that the defendant Nos. 2 to 6 stood as guarantors. The mention of the name of the appellant No.4 is conspicuous by its absence. The respondent-bank has proved on record Ext. Nos. A-11 to A-16, which are the guarantee agreements, but the same do not pertain to the appellant No. 4-Smt. Manorama Jaiswal. It was, however, submitted that Smt. Manorama Jaiswal executed a "draft deed of declarationcum-indemnity". The relevant extracts of the above said deed are reproduced as follows:

"............ Whereas the indemnifier is owning the immovable property Rano Pali, Darshan Nagar, Haweli, Faizabad (full address of the property to be given) below and hereinafter called the scheduled property; and

Whereas the said scheduled property or any portion thereof is not affected by the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the entire extent of the above property and other properties belonging to the indemnifier is within the ceiling limit permitted under the above said Act ; and Whereas the said urban property is now offered as security to the indemnified for the financial assistance availed/to be availed by the indemnifier and the indemnified has agreed to take the said scheduled property as security for the above said purposes.

Whereas the indemnifier declared that the total extent of the property held by him and his wife and his minor children does not exceed the ceiling limit permitted under the Act, and

Whereas the indemnifier has declared the excess land held by himself and his wife and his minor children in excess of ceiling limit by filing the return in the prescribed form with the Urban Land Commissioner and therefore the indemnified is entitled to hold the scheduled property as security as per the Act.

Now this deed witnesses that in pursuance of the aforesaid agreement and in consideration of the bank having g anted/has considered to grant financial assistance to the indemnifier, indemnifier hereby agrees that the indemnifier will at all times keep indemnified and harmless the indemnified from all claims, demands made and all actions, proceedings taken against the indemnified if the scheduled property is found in excess of the ceiling limit prescribed and therefore the security created on the said property for the advance made/to be made is taken over by any Government or is likely to be lost or jeopardized as a security for the above said advance by the indemnified."

3. The said deed is also accompanied by an affidavit filed by Smt. Manorama Jaiswal dated 26th August, 1997. Counsel for the appellant argued that the said appellant is liable only for "term loan facility (i.e., for the fixed period) and not for O.C.C. (Open Cash Credit facility). The Counse