LexMARGARET LALITA SAMUEL versus INDO COMMERCIAL BANK LTD.
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B 914 MARGARET LALITA SAMUEL v. INDO COMMERCIAL BANK LTD. September 25, 1978 [Y. V. CIIANDRACHUD, C.J., R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.] Constitution of India-Arts. 136-141-Substantial justice-If erroneous order of re1nand results in substantial justice whether this Court should interfere- Litnitatfon Act 1908-Schedule-Articles 57, 115-Coniinuing guara11tec- When does litnitation run-Liability of Bank guaranlet!-lf claim given up without specifying any particulars whether it can be taken into considerarion C again.H rite unproved debts. D The respondent plaintiff is the lndo Commercial Bank Ltd. now taken over and represented by the Punjab National Bank. In 1943 C. B. Samuel, the husband of the appellant-defendant with other persons floated a company known as the Modern Hindustan Food Products Ltd. Co. at Poona. The company openetl;.-with the plaintiff Bank a current account which was later converted into an over.draft Account with the maximum limit of Rs. 10/- Iakhs. C. B. Sanluel, the Managing Director of the company executed a Promissory Note for Rs. 10 lakhs and he and his wife, the defendant executed a guarantee bond by which they jointly and severally guaranteed to the Bank, the repayment of all moneys which shall at any time be due to the Bank from the Company, on the general balance of their account with the Bank or on any account whatever.· The guarantee was to be a continuing guarantee to the extent of Rs. 10 lakhs at any one time. The Company ceased business on 30th June, 1946 and there~ after the Company entered into an arrangement with the Bank by which the Bank was authorised to receive all amount due from the Director General of Food Supplies, or from any other person or Department and appropriate the sums collected towards the money due to the Bank from the Company. An irrevocable poVl·er of attorney oothorising the Bank to do so was executed by the Managing Director. All Bills and documents were accordingly handed over to the plaintiff bank for realisation of the amount due to the Company. C. B. Samuel died on 27th April, 1951. The defendant by her letter dated 2nd February, 1952, acknowledged her personal guarantee to repay to the plaintiff the sum of Rs. 2,71,531 which was stated to be balance due to the plaintiff from the Company as on 31st December, 1951. To that, a sum of Rs. 21,886/- was to be added by way of interest. The Bank recovered a sum of Rs. 57,964 and thus the balance due was Rs. 2,35,453/-. The Bank filed the present suit In November, 1954 to enforce the guarantee bond against the defendant and to recover a sum of Rs. 1,50.000. It was stated in the plaint that a sum of Rs. 85,453 was given up and the suit was filed to recover the sum of Rs. 1,50,000/- only. The defence of the defendant was that the suit was barred by limitation, that the letter dt. 2nd February, 1952 was obtained from her by fraud and that she was, in any case, not liable to pay amounts disputed by her in para 15 of her written statement. She also pleaded that the plaintiff had deliberately withheld production of the accounts between 1943- 46 du~ which period most of the transactions took place and that if these accounts were produced, she would be in a position to challenge other items as well. E F G H - , • MARGARET v. INDO COMM. BANK (Chinnappa Reddy, !.) 915 Soon after filing the written statement, the defendant filed an application in the trial court to direct the plaintiff to produce among other documents, the accounts from 1943 onwards. The Trials Judge by his Order rtt. 10th March, 1955 directed the plaintiff to produce the documents within two weeks from that date. The plaintiff did not produce the documents. Subsequently, however, an extract of the accounts from 1943 to 1946 was produced. On the date of the hearing of the suit, the defendant filed an application Ext. 85, seeking a direction from the Court, that the plaintiff be allowed to produce any documentary evidence which they might possess in support of the items mentioned in the schedules even till the time the evidence is finished and the defendant be allowed to deny, under the circun1stances mentioned, the items mentioned in schedule 'B'. Alongwith the application, the deft:ndant filed two schedules; Schedule 'A' showing the items specifically denied by the defendant in her written statement and Schedule 'B' showing the items which were denied
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