Arun Kumar Tantia vs ICICI Bank Ltd. And Ors.

Ranjit Singh, J

The present appellant was the Managing Director of the company by the name Best Board Ltd. (for shun, PBL). The company along with appellant were proceeded against by the two respondent for recovery of two different amounts which were advanced as loans. These amounts were statedly due on account of five different loans availed of by the company where the appellant gave his personal guarantee to secure such different loans. The Tribunal below, on the basis of evidence and documents has held the company liable for the recovery but has relived the appellant from his personal liability so far as three loans are concerned on the ground that the guarantees given by the appellant stood released. In respect of two loans, however, the appellant has been held liable in his personal capacity on the basis of guarantee given by him. The appellant, therefore, has made a laborious effort to seek his release from the liability fastened on to him in respect of these two loans as well through the present appeal. A brief narration of the facts would give background of the issues raised in the present appeal.

ICICI Ltd. and IFCI Ltd. had filed this O.A. for the recovery of Rs. 18,33,81,485/- and another sum of Rs. 29,85,10,918/-. The recovery of the first amount was sought by ICICI Ltd. whereas the recovery of the second amount was sought by IFCI Ltd. The record shows that ICICI Ltd. merged with ICICI Bank Ltd. and an application for substituting ICICI Bank in place of ICICI Ltd. was allowed by the Tribunal below.

BBL had availed facilities of five different loans which were advanced by respondent financial institutions. A foreign currency loan of Swedish Kroner 7125468 was advanced by ICICI Ltd. whereas foreign currency loan of DM 2198000 reduced to 2101140.12 was advanced by IFCI Ltd. Third was a Rupee Term Loan aggregating to Rs. 261 lacs for which the company had approached IFCI Ltd., ICICI Ltd., and IDBI Ltd. Its request was considered by IFCI which has led institution and aforesaid term loan under the Project Finance Participation Scheme (PFPS) in participation with ICICI and IDBI and the loan aggregating to Rs. 261 lacs was sanctioned. Another sum aggregating to Rs. 85.37 lacs as Rupee Term Loan was then sought from IDBI and this request was again considered by the consortium and the loan was accordingly granted. Two other Rupee Term Loans of Rs. 116.92 lacs and Rs. 142 lacs were further allowed by the consortium of the FIs when the appellant approached for the same. The grant of these different loans is not a matter of dispute or controversy and this position is conceded by the appellant. The challenge in the present appeal is also not on the merit on the basis of appreciation of evidence, etc., but the plea of the appellant is that he cannot be held personally liable as guarantor for the two loans for which he had been held liable by the Tribunal below as he ought to have been released of these guarantees as well as is the finding by the Tribunal below in respect of three other loans.

The first loan in question was sanctioned on 11.2.1987 followed by a second loan on 10.4.1987. The third loan was sanctioned on 10.9.1987 whereas fourth and fifth loans were sanctioned on 8.6.1988 and 27.2.1989. It is revealed from the record that the BBL went into liquidation and even in the O.A. the company is described as under liquidation and was impleaded through Official Liquidator. Obviously, the company failed to maintain financial discipline and was unable to pay the loan. This led to ICICI and IFCI moving this joint O.A. No. 35/2001 claiming two different amounts which were due towards them, as already noticed. The issue here, as already noticed, is not much regarding the liability as such but the appellant is only making effort to seek his discharge from the liability to repay the two loans for which he has been held liable as guarantor on the basis of personal guarantee offered by him. Dispute is also not in regard to furnishing of personal guarantees as such, but the submission by the appellant is that these guarantees were given to secure the loans till the time security was provided to secure these loans. This stand of the appellant is found reflected in the written statement which he had filed in response to the notice issued in the O.A. of the respondents. The appellant would plead in the written statement that all the guarantees were given for interim purpose till creation of security and all these personal guarantees stood released on creation of the security. To press his plea that the appellant was to be relieved of all these personal guarantees once the security for the loan was furnished by the company, he has referred to two letters, one dated 5.8.1988 written by IFCI and the other of the same date written by IDBI. On 7.6.1988, IFCI had written a letter to BBL intimating that the guarantee given by the appellant for some of the loans stood released. Since the Counsel for the appellant has placed rather heavy reliance on the contents of this letter, for proper appreciation the relevant portion of the said letter is reproduced as under:

"Consequent upon your company having created mortgage of its immovable properties, guarantee given by Shri A.K. Tantia for the following loans stands released-

(i) IFCI, IDBI, ICICI for their term loan aggregating to Rs. 261.00 lakh granted under Project Finance Participation Scheme (PFPS).

(ii) IFCI, IDBI and ICICI for their term loans aggregating to Rs. 85.37 lakh granted under PFPS.

(iii) ICICI for its foreign currency loan of DR 2198000.00 equivalent to approximately Rs. 147.00 lakh.

(iv) IFCI for its central investment subsidy of Rs. 10 lakh."

IDBI had also addressed a similar communication to BBL on 5.8.1988 stating that consequent upon the company having created mortgage of its immovable properties with IFCI, the lead institution, guarantee given by Mr. A.K. Tantia for the foreign currency loan of US$ 1,008.380 equivalent to approximately Rs. 127 lakh stood released. The entire basis of the case has been built by the appellant on the contents of these two letters. The Counsel for the appellant would plead that the personal guarantees given by the appellant were till the time security for the loans were furnished separately and once those securities were furnished, the FIs released the appellant of personal guarantees given by him. As per the appellant, on the basis of this communication his plea was accepted by the Tribunal below and thus the appellant was held not liable on account of the personal guarantees given in respect of the three loans. The Tribunal below, as per the Counsel, however, has failed to appreciate that the appellant was required to be released of his liability arising out of personal guarantees given for the loans advanced on 8.6.1988 and 27.2.1989 as he was released with respect to three other loans. Counsel would contend that the appellant was released on the basis of a letter which clearly disclosed that he was being so released because of the security being provided. Same language, as per the Counsel, is used in the second letter written by IDBI and, thus, the loans have been secured by the mortgage, etc. the appellant was required to be considered released of the personal guarantees he had furnished.

In fact, Counsel for the appellant would allege serious act of misconduct and misrepresentation on the part of the respondent FIs. As per the Counsel, ignoring of these two letters vide which the appellant has been released of his liability, the FIs had approached for recovery of five loan amounts against the appellant as well. As per the Counsel, despite he having disclosed these two letters in his reply, respondent FIs still insisted on recovery against the appellant as well which would indicate that they made a serious attempt to mislead the Tribunal below. This fact, however, as per the Counsel, has been ignored by the Tribunal below. Counsel would also refer to the affidavit of evidence given by him where he has deposed that the alleged guarantee deeds were part of the terms of the loan availed of by the company. As per the appellant, the fact that the alleged guarantees were given purely and solely as an interim measure to ensure creation of substantive security by way of mortgage of immovable property, etc. and on creation of such substantive and adequate security the guarantees given by the appellant were superseded and released would be clear from the absence of any stipulation in the terms and conditions of the loan agreements, and letters filed as Exhibits R-1 and R-2 (these were the two letters written by IFCI and IDBI which have been referred to and reproduced above). As per the Counsel, despite this position, action of the Bank was nothing but a fraud.

To further substantiate that the FIs had withheld information from the Tribunal below as well as from this Tribunal, the Counsel has made reference to the orders passed by this Tribunal requiring the respondent FIs to produce certain documents, which orders were not complied with. In this regard, Counsel has made reference to an order passed by this Tribunal on 3.11.2010 where this Tribunal directed the assignee Bank to produce all documents and correspondence if available with it or with ICICI along with affidavit from IFCI and ICICI in support. The Counsel would then refer to an order dated 8.2.2011, on which date the appellant had filed some affidavit. This Tribunal had then directed the Counsel for the respondent Bank to produce records and documents relating to the furnishing of all six guarantees. Since ICICI Bank assigned this debt to Kotak Mahindra Bank, ICICI Bank had stated that these documents had been handed over to the said assignee Bank. This Tribunal then directed both the respondent Banks to produce documents before the tribunal and not to pretend that the documents are not with them. It appears, in between, an application for review of this order was filed. On 28.3.2012, this Tribunal rejected the prayer for review, IFCI and ICICI Bank were directed to comply with the directions passed by this Tribunal. By referring to these orders, the Counsel for the appellant would contend that the FI/Bank still failed to produce the documents and thus adverse inference needs to be drawn against them on this count. In support of his submission, the Counsel has also placed reliance on the case Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., 1968 (SLT Soft) 90 : AIR 1968 SC 1413 and S.P. Changalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. & Ors., II (1993) BC 546 : AIR 1994 SC 853.

Counsel would also contend that all the guarantee deeds were identically worded. The Counsel has made some further submissions in rejoinder while responding to the submission raised by the Counsel for the respondent Bank/FI.

Mr. Suresh Dobhal appearing for Kotak Mahindra Bank (assignee of ICICI Bank) submits that the mortgage was created on 7.6.1988 and by then only three loans had been advanced, i.e., loan dated 11.2.1987, 10.4.1987 and 10.9.1987. Two loans were advanced on 8.6.1988 and 27.2.1989 which were subsequent to the date of mortgage, which is 7.6.1988. As per the Counsel, the exposure till 7.6.1988 was to the extent of Rs. 463 lacs approximately whereas after 7.6.1988 the exposure increased to Rs. 650 lacs approximately. He would explain that the release of personal guarantees on the basis of mortgage dated 7.6.1988 may be justified but the remaining personal guarantees for loan disbursed on 8.6.1988 and 27.2.1989 could have obtained as the exposure had increased further. The Counsel would also submit that if the case of the appellant as pleaded before this Tribunal is that on creation of security the guarantees given by him were to be released, then no occasion would have arisen for the appellant to extend the personal guarantees for a loans taken on 8.6.1988 and 27.2.1989 once the mortgage has been created on 7.6.1988. The Counsel accordingly would plead that these two loan transactioned were subsequent to the creation of security. Besides, the Counsel would also read relevant clauses of the guarantee deeds to show that there was no occasion or stipulation contained in the guarantees for release guarantor on providing securities for these loans. In this regard, the Counsel has referred to the guarantee furnished by the appellant on 8.6.1988 and has invited pointed attention of this Tribunal to paras 7, 9, 10, 18 and 19 of this guarantee deed, In para 7 of the deed it is provided that the guarantee shall be enforceable against the guarantor notwithstanding that any security or securities comprised in any instrument(s) executed or to be executed by the Borrower in favour of the Lenders. In para 9 it is provided that the guarantor agrees and declares that the Borrower will be free to avail of further loans or other facilities from the Lenders or any other financial institution or Bank in addition to the Loans, and/or to secure the same during the subsistence of this guarantee and in that event the guarantee herein contained will not be affected or vitiated in any way whatsoever but will remain in full force and effect and bind the guarantor. As per para 10, the rights of the Lenders against the guarantor shall remain in full force and effect notwithstanding any arrangement which may be reached between the Lenders and other guarantor/s if any. As per para 18 of the deed the guarantee was to be a continuing one and was to remain in full force and effect till such time the Borrower repays in full together with interest, commitment charges, etc. As per para 19 of the guarantee, the liability of the guarantor was not to exceed Rs. 116.92 lacs plus all interest, commitment charges, etc. On this basis, the Counsel would contend that this guarantee was to remain in operation irrespective of any security being created and so the plea by the appellant that these guarantees were limited till the time the security was furnished, would be contrary to the contents of the guarantee deeds. Similarly, the guarantee was to be treated as continuing guarantee and was to remain in full force till the borrower repaid the full loan together with interest and other charges.

Counsel would also contest the averment made by the appellant in this regard in his pleadings as well as in the evidence. He would refer to the replication filed in response to the written statement filed by the appellant before the Tribunal below. The plea raised in para 2 of the written statement has been denied. The plea that the deed of guarantees were not a part of the loan granted is also denied. In the replication, it is further denied that the guarantee given by the appellant was purely and solely as an interim measure to ensure creation of substantive security by way of mortgage. The plea that on creation of such substantive and adequate security the guarantee was to be released is also denied. In short, the Counsel would contend that neither any case was made out for release of guarantee nor it can be so inferred as is the pleaded by the Counsel for the appellant.

Counsel for respondent No. 2 submits that legal notice was issued to the appellant on 20.11.2000 to which the appellant never responded by taking the plea that the personal guarantees given by him stood released. Plea also is that the appellant never intimated that his guarantees in respect of these two loans were till creation of security till the respondent Bank/FI approached the Tribunal by way of present O.A. If that was the fact, it could be expected from the appellant to write a letter in this regard. In this case no letter releasing his personal guarantees is forthcoming.

The gravamen of submissions made by the Counsel for the appellant is that the action of the consortium Bank/FI to release personal guarantees in respect of loans dated 11.2.1987, 10.4.1987 and 10.9.1987 upon the appellant company having provided security for the said loans, there is no reason for not taking similar action in respect of other two loans too. Counsel would primarily urge that this Tribunal may infer from the action of the consortium of releasing the appellant in respect of three loans to hold that he automatically stood relieved of the personal guarantee which he had extended for loans dated 8.6.1988 and 26.2.1989 as well. To further buttress his submission, Counsel would refer to the guarantee to say that they are identically worded and, therefore, there is no reason for not taking similar action by the consortium Bank/FIs in respect of these two loans as well.

Despite his best efforts, Counsel for the appellant could not point out any condition contained either in the deed of guarantee or otherwise on the basis of which one could draw inference that the guarantees for loan dated 8.6.1988 and 26.2.1989 were given as interim measure and were to be released on furnishing security for the said loans. Except for pointing out to two letters and the wordings thereof, which have been reproduced above, the Counsel has nothing else to show that would persuade this Tribunal to drawn inference that the appellant's guarantee stood released in respect of these two loans as well. The plea is that it would be evident from the conduct of the respondent Bank/FI, as can be seen from these two letters that the interim guarantees provided by the appellant was specific and for limited purpose to ensure creation of mortgage of immovable properties by the company and these guarantees automatically stood released on compliance of creating mortgage. The appellant in his reply filed to the O.A. had also made reference to this aspect that these guarantees were given purely and solely as an interim measure to ensure the creation of substantial security by way of mortgage. The appellant had also averred in the reply that it is this factum of implied condition based on which release of most of the guarantees has also been confirmed in writing and similarly the implied condition is applicable in the same manner to other guarantees as well. If this was the stand of the appellant in its reply before the Tribunal below, obviously, the plea was not that there was any understanding outside the guarantees which regulated the release of the personal guarantees on creation substantive/adequate security. Merely because the respondent Bank/FI released personal guarantees of the appellant in respect of three other loans on furnishing of security inferentially it cannot be held that the appellant was required to be released of his personal guarantees which he had furnished for the remaining loans as well. It is the action of release which is material, and not the reason for release of personal guarantees. The appellant would stand relieved of the personal guarantees only in case there is some order passed or communication initiated directing his release from these personal guarantees. This is more so when appellant could not show any document wherein it was provided that the appellant was to be released of his personal guarantee on furnishing of security for the loans. The appellant rightly could not be held personally liable on account of his personal guarantees in respect of three loans not because of guarantee document but because of the specific order relieving him of these guarantees. If the appellant was to be relieved of the remaining two guarantees as well, there was bound to be a letter or communication in this regard and it will not be fair to construe that the appellant was released of his liability merely on the basis of inference or on the ground that this was an implied condition when no such release order is forthcoming. The submission by the Counsel for Kotak Mahindra Bank that there was no such letter written by the Bank/FI can also not be ignored.

The other limb of the submission that the guarantee was furnished on 7.6.1988 and, therefore, releasing the appellant of personal guarantee was passed in respect of three loans which were disbursed prior to this date. Obviously, the security which is provided on a particular date cannot have any relevance for any subsequent advance or loan which was given by the consortium Bank/FIs. There is some substance in the submission made by the Counsel for the respondent Bank when he says that the exposure has certainly increased on account of subsequent loans and, therefore, the Bank did not consider it proper to direct release of the appellant from his personal guarantees for the remaining two loans. The Counsel for the appellant would not only contest this submission, but would say that subsequently another mortgage was created on 6.12.1988. Earlier mortgage was for 15.03 acres whereas the total land was yet to be ascertained and that is why another mortgage was created for a total land of 18.24 acres. Accordingly, the Counsel would contend that the additional security so created was to impliedly lead release of personal guarantees in respect of remaining two loans as well.

I have not at all been able to convince myself to accept the line of submissions persisted by the Counsel for the appellant. As already noticed, a written liability arising out of a guarantee deed cannot be undone by some inference or because of reading certain conditions impliedly into the guarantees deed as such. Not only this, the reading of the guarantee itself would make it amply clear that these guarantees were enforceable against the guarantor notwithstanding any security or securities comprised in any instrument executed or to be executed by the borrower. Clause 7 of the guarantee reads as under:

"7. This guarantee shall be enforceable against the guarantor notwithstanding that any security or securities comprised in any instrument(s) executed or to be executed by the Borrower in favour of the Lenders shall, at the time when the proceedings are taken against the Guarantor on this Guarantee, by outstanding or unrealized or lost."

Clause 10 of the guarantee deed talks of right of the lender against the guarantor. This may also need to be reproduced here to clearly indicate that notwithstanding any arrangement which may be reached between the lender and other guarantor/s, or notwithstanding the release of that other or others from liabilities, the lenders shall be at liberty to require the performance by the guarantor of his obligations contained therein. Para 10 reads as under:

"10. The rights of the Lenders against the Guarantor shall remain in full force and effect notwithstanding any arrangement which may be reached between the Lenders and other Guarantor/s if any, or notwithstanding the release of that other or others from liability and notwithstanding that any time hereafter the other Guarantor/s may cease for any reason whatsoever to be liable to the Lenders. The Lenders shall be at liberty to require the performance by the Guarantor of his obligations hereunder to the same extent in all respects as if the Guarantor had at all times been solely liable to perform the said obligations."

Paras 18 and 19 shows that the guarantee was continuing one and was to remain in full force and the liability of the guarantor was not to exceed Rs. 116.92 lacs. Paras 18 and 19 read as under:

"18. This Guarantee shall be a continuing one and shall remain in full force and effect till such time the Borrower repays in full the Loan together with interest, commitment charges, liquidated damages, premia on repayment or on redemption, costs, expenses and other moneys that may from time to time become due and payable and remain unpaid to the Lenders under the Loan Agreement.

The liability of the Guarantor hereunder shall not exceed the sum of Rs. 116.92 lakh (Rupees one hundred sixteen lakh and ninety-two thousand only) plus all interest, commitment charges, liquidated damages, premia on pre-payment or on redemption, costs, expenses and other monies payable by the Borrowers to the Lenders under the Loan Agreement."

If these are the conditions contained in the guarantee, it will be highly impossible for anyone to infer or impliedly read that the appellant was to be relieved of his personal guarantee on furnishing of any security. Even if the security interest has been increased by subsequent mortgage dated 6.12.1988, the release of personal guarantee could not be construed in view of the conditions contained in the guarantee itself.

The Tribunal has also considered this aspect in detail in the light of the written submission filed by the appellant. The plea raised by the appellant in his written statement was taken note of, where he had urged that the guarantee documents were neither enforceable nor subsisting or valid as the guarantees were superseded and thereafter released long ago. Where there was specific release order, the Tribunal had accepted the plea of the appellant. While considering these to term loan agreements dated 8.6.1988 and 27.2.1989, the Tribunal has taken note of Article 3.2 of the term loan agreement dated 8.6.1988. which reads as under:

"29. ...If at any time during the subsistence of this Agreement the Lead Institution is of the opinion that the security provided by the borrower has become inadequate to cover the balance of the loans then outstanding, then, on the Lead Institution advising the Borrower to that effect, the Borrower shall provide and furnish to the Lenders, to the satisfaction of the Lead Institution, such additional security as may be acceptable to the Lead Institution to cover such deficiency."

From this, the Tribunal below has concluded that respondent was always at liberty to take security as would be acceptable to cover the deficiency. Similar was the position in respect to the loan agreement dated 27.2.1989. Accordingly, the Tribunal below did not find any force in the submission made on behalf of the appellant that his personal guarantees were not enforceable or that they could be released by way of drawing an inference.

The Counsel for the appellant has rather been agitated while making the submission by urging that there was a serious attempt made by the respondent Bank/FIs to mislead this Tribunal, which, according to him, would be an act of fraud on the Tribunal. He would also strongly plead that the conduct of the Bank/FIs in not producing the document despite repeated directions passed by this Tribunal would necessitate this Tribunal to draw adverse inference against the Bank/FIs and thus to hold that there was an implied understanding between the parties for release of personal guarantee on furnishing security. As per the Counsel for the Bank's affidavit, there was no such document and hence no document could be so produced. If a party does not comply with the direction of a Court or Tribunal to produce a document in its possession, then in terms of Illustration (g) to Section 114 of the Evidence Act. It is possible for the Court or Tribunal to draw an adverse inference as per the illustration. It states that, the Court may presume that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The essential requirement for drawing such a presumption would be that the evidence which could be produced but is not produced. If there is no such evidence, it may not be possible to draw such an inference. No doubt, this Tribunal had on more than one occasions directed the Bank to produce document but it could not be established that there was any such document. If this plea is seen in the context of written statement filed by the appellant, then no reference is made to any document as such which was drawn in this regard, but the plea only was that such condition is implied and in support thereof reference was made to those letters whereby the appellant was released of his personal guarantees. In this background, it may not be fair to draw adverse inference against the Bank that it had not produced any a document or it has withheld any document which if produced could be construed as unfavourable to the Bank.

The allegation of committing fraud on the part of the Bank also primarily flows from this aspect of the plea that the evidence was withheld by the Bank. The Hon'ble Supreme Court in the case of S.P. Changalvaraya Naidu's case (supra) was dealing with a case where a decretal amount was received and he was no more entitled to the property which he had purchased through another person. Without disclosing that he had executed a release deed in favour of person, he had filed a suit for partition of the property and obtained a preliminary decree. In this background, the Court observed that the fact in this case leave no manner of doubt that the person had obtained the preliminary decree by playing fraud on the Court. In this context, observations were made that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another's loss. It is a cheating intended to get an advantage. The Hon'ble Court has also observed that non-production or even non-mentioning of release deed at the trial tantamounts to playing fraud on the Court. In this regard, the Court disapproved the observations recorded by the High Court that the appellant-defendants could easily produce the certified registered copy of an Exhibit i.e. release deed and non-suited the plaintiff. It is observed that a litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party.

No one can take exception to the observation made by the Hon'ble Supreme Court. In my view, the appellant has not been able to establish that there was any document which was drawn by the Bank recalling the release of personal guarantee of the appellant. Obviously, if there was any such document executed between the parties, the copy thereof ought to have been available with the appellant as well. No such averment is found recorded or even in the plea raised before the Tribunal. The appellant relied upon and pleaded the release of his personal guarantees impliedly because of the letters reference to which have already been made. Thus, in my view, the ratio laid down in the said case as such may not strictly apply to the facts of the present case.

The Counsel has then referred to the case of Gopal Krishnaji Ketkar's case to urge that even if the burden of proof does not lie on a party, the Court may draw adverse inference against him if he withholds important documents in his possession which can throw light on the facts at issue. As per the Court, it is not a sound practice for those desiring to rely upon a certain state of facts to withhold the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. Counsel would accordingly urge that even if there was no burden of proof on the part of the Bank to produce a document, it being a public institution could be expected to come out in a fair manner before this Tribunal. This may be so, but such question would arise in case it is held that any attempt has been made by the Bank to withhold any information. I have not been able to find that any information or document has been withheld.

The Counsel for respondent No. 2, on the other hand, has placed two judgments of the Hon'ble Supreme Court before me, which are in the cases of H.R. Basavaraj v. Canara Bank, 2010(1) RAJ 199 (SC) and Sita Ram Gupta v. Punjab National Bank & Ors., III (2008) SLT 516 : II (2008) BC 691 (SC) : Appeal (Civil) No. 1878 of 2008, decided on 10.3.2008. The issue in these cases before the Court was about discharge of surety on the basis of an agreement executed between a party and the Bank which was submitted to be having an effect of sanctioning of a new loan but not retaining earlier guarantee. The Court found that the Counsel for the appellant failed to produce any evidence on behalf of the appellant to satisfy the Court in support of his argument. Plea there also was that the Bank was in possession of such document and was required to present it. The Court had expressed that it was highly unimaginable that when parties are entering into contracts for the purpose of seriously conducting some businesses, that there would not be multiple copies of the executed agreement or at least one copy with either of the appellants. Such contention of the appellants does not inspire any confidence and was rejected.

Similar is the plea in the present case. Here also the Counsel has put the entire burden on the Bank to produce some document without either showing or proving the fact that there was some document which was executed in this regard. Such submission, certainly would not inspire any confidence. In these cases the Court has further observed that the guarantee was continuing guarantee. The Court on this basis, did not find it difficult in affirming the concurrent findings of the High Court and of the Trial Court on the point that the agreement executed for the purpose of a continuing liability despite the variation of terms of the contract and in the absence of specific written document by the guarantor revoking the guarantee, the guarantee stands and the legal representatives of the deceased are liable to repay the loan. Emphasis here was also on written document for discharge or revocation of the guarantee. It is otherwise also highly improper to relieve someone of written agreement by reading into it certain implied condition. Similarly, in the case of Sita Ram Gupta's case (supra), the Hon'ble Supreme Court did not accept the plea that the guarantor was not liable to pay the decretal amount to the Bank in view of the revocation of the guarantee the guarantee being a continuing one. In view of the discussion above, I do not find any substance in the plea raised by the appellant. In my view, the appellant has not succeeded in proving that there was any condition to release him of the personal guarantees on furnishing of security so far as these two loans are concerned. The Tribunal, in my view, has rightly held that the appellant is liable on the basis of the personal guarantees for these loans. The appeal is, therefore, dismissed.