S.B. Sakrikar, J. -- 1. Appellant/plaintiff Bank has directed this appeal against the judgment and decree dated 20th March, 86 passed by III Additional Judge to the Distt. Judge, Indore in Civil Suit No. 18/85 (Old No. 65B/84) thereby the suit filed by the appellant was decreed only against respondent No.5 and dismissed against respondent No.1 to 4.

2. The facts of the case lie in narrow compass. That respondents No.2 and 3 are the Partners of respondent No. 1 and are dealing with cotton business in the name of respondent No.1. Respondent No.4 stood surety for different loan facilities given to respondent No. 1 by the plaintiff/Bank. Respondent No. 1 obtained certain facilities i.e. pledge, cash credit, bill purchase etc. According to the plaintiff's case, under the bill purchase loan facility given to respondent No. 1, respondent No. 1 used to send goods to its customers and used to endorse the bill, motor transport receipts and Hundi in favour of the appellant/Bank. Respondents used to obtain the amount involved in the aforesaid hundis and bill from the Bank. The amount used to be debited in the name of respondent No. 1, although the bill used to be endorsed in favour of the Bank, still the liability used to remain with respondents even though the goods are not taken by the customers or otherwise lost or destroyed. If the goods are taken by the customers and the amount is deposited then the amount used to be deposited in the account of respondent No.1. Respondents No. 2 and 3 executed certain traditional documents in favour of the Bank with regard to the loan facilities including the bill purchase facility extended to the respondent No. 1. Respondent No.4 who stood surety also executed guarantee deed in favour of the Bank. The rate of interest agreed as Rs. 10.40% p.a. above RBI rate and it was fixed Rs. 19.40% p.a.

3. Respondent No.1, through respondent No.5 who is in the list of approved transporters of the appellant/Bank sent some consignments to its customers Mandwi Spinning Mills vide their letters dated 26.3.83, 28.3.83 amounting to Rs. 97,729.89 and Rs. 69,909.17. Hundis and Bilties in respect of these consignments were submitted to the plaintiff/Bank for collection. When the plaintiff/Bank did not get collection of hundis and bills and then plaintiff/Bank enquired from transporters respondent No.5, who could not satisfy the Bank. Respondent No.5 vide its letter dated 13.1.84 (Exh. P/23) intimated the Bank that the goods will be rebooked within seven days and sent to Indore. In the alternative, he also intimated the plaintiff/Bank that he will pay the entire amount of bills in question with all expenses. Since respondent No.5 did not handover goods and did not pay the costs of the goods, the Bank served a notice on respondent No.1 and filed a suit against all the respondents for the recovery of the amount of bills received by respondent No.1, alongwith interest of Rs. 42,821/- total for Rs.2,10,460.50.

4. Respondent No.5, remained ex-parte while respondents No.1 to 4 have denied entire claims of the plaintiff/Bank. According to respondents No.1 to 4, under the bill purchase agreement, the goods used to be dispatched under the supervision of the Bank Authority but through the approved transporters of the Bank by making the endorsement of bills and bundls in favour of the Bank. The plaintiff Bank becomes the owner of the goods in question, if the approved transporter of the Bank fails to deliver the goods to the customers or to the Bank, respondent No.1 to 3 cannot be held liable for the suit amount. According to them respondent No.5, the transporter fails to send back the goods in question, only transporter is liable to pay the amount involved in the transaction in question. Learned trial Court framed issues on the pleadings of the parties and on the basis of the evidence led by the parties, the trial Court decreed the plaintiffs claims only against respondent No.5 whereas the plaintiff's suit was dismissed agains