This Second Appeal arises from the judgment and decree dated 11-4--1982 passed by the learned Additional District Judge, Faisalabad, whereby the appellant-defendant's first appeal was dismissed affirming the decree of the trial Court allowing recovery of Rs.13,130 to the respondent- Bank from the appellant with costs and interest.
2. The respondent-Bank alleged that they had advanced a loan of Rs.36,500 to defendant No.l Mirza Anwar Ahmad in 1964 and that the same was payable in monthly instalments ,the last of which was to fall due before the 30th of June, 1966. Their version was that the said defendant failed to repay the debt, but acknowledged it initially by a written commitment dated 22-8-1967 and later by a letter dated 24-1-1968. Statingly he could not repay it till 31-1-1969 when the balance due in his account worked out to the tune of Rs.13,130. Defendant No.2 was added as he had kept certain buses in his custody after hypothecation thereof as a collateral security for repayment of the debt and was claimed to be liable as surety.
3. Both the defendants contested the suit. It was conceded that defendant No.l had taken a loan of Rs.36,500 but he had cleared it off by making spasmodic payments either in cash or sale of shares or by making adjustment in regard of a security amount of Rs.7,500. Thus he denied existence of any liability on account of the disputed loan. Defendant No.2 equally took up the same plea.
4. The trial Court framed appropriate issues arising out of these pleadings and decided the suit basically upon the statement of accounts Exh.P.6 which showed this much balance against the principal debtor Mirza Anwar Ahmad. The decree was, however, against both the principal debtor as also surety. The appellant's first appeal failed and hence the present R.S.A.
5. Sh. Muzaffar Ahmad Zaffar, Advocate for the appellant strenuously contended that a sum of Rs.5,000 pertaining to another guarantee which the appellant Mirza Anwar Ahmad had executed in regard to repayment by another debtor Mirza Nasim Ahmad was wrongly included m the Balance Sheet Exh.P.6 and that the same could not be recovered from him by jumbling up that cause of action with the present suit. I have carefully perused the written statements filed by both the appellants, but no such plea was raised therein. A scrutiny of the Balance Sheet Exh.P.6 shows that the amount of Rs.5,000 presumably pertaining to the said guarantee was included in 19 63 as a part of the present debt against the appellant Mirza Anwar Ahmad. Ordinarily he should have known its inclusion in the amount maintained against him by the Bank. Even if he did not know it, he had admittedly executed acknowledgements on 22-8-1967 and 24-1-1908, wherein he accepted his liability to pay the said amount as a part of this very debt. Learned counsel could not raise any point against the two acknowledgements referred toabove except that they were pronotes and as such did not constitute acknowledgements as contemplated by section 19 of the Limitation Act. I am afraid, the argument has no substance. The execution of these two documents stands admitted. It is not the appellant's case that he did not execute them. We have to see what these writings intended to convey and one unmistakably finds that they purported to undertake repayment of the debt then existing. Those were executed years after the sum of Rs.5,000 was included in the Balance Sheet as debt recoverable from the appellant. It is not his case that over these years he had not examined the Balance Sheet or that there was any forgery about it. Counsel contended that the promissory notes were not acknowledgements but could not cite any authority to bear out such an unusual argument. Contrary to it, in Natarajulu Naicker v. Subramanian Chettiar (1922) 45 Mad. 77 (784) and Nachimuthu Chetty v. Audiappa Pillai (1917 M.W.N. 778) a promissory note otherwise unforceable was held to be good evidence of an acknowledgement of l, liability under section 19 of the Limitation Act. Next, it was not urged nor proved if these pronotes were executed beyond the limitation provided for the repayment) of the debt. As already shown, the last monthly instalment was due before the 30th of June, 1966. These promissory notes having been respectively executed on the 22nd of August, 1967, and the 24th of January, 1968, were within the prescribed period of three years to be counted under Article 74 of the Limitation Act from the due date of the 30th of June, 1966. Obviously, these acknowledgements turned out to be unassailable on any ground and had the effect of further extending the limitation. Even otherwise when appellant No. 1 admitted to have executed the contract of securing repayment of the said amount of Rs. 5,000 qua the present appellant, there was no legal bar in the latter's way of recovering it in this very suit. The question was as to how much Mirza Anwar, Ahmad, appellant had to pay to the respondent Bank and the accounts maintained between the two as per Exh. P.6 showed the balance of Rs. 13,130. I The relationship between the two was one of the creditor and the debtor. The mere fact that one of many items payable by the appellant related to a slightly different matter would not absolve him of his liability to pay it to the respondent Bank. The crux of a contract of a guarantee is that it binds the surety in a co--extensive manner and he cannot insist that the debt should be recovered in the first instance from the principal debtor for whom he might have stood as surety. The choice is that of the creditor and if the creditor Bank here considered it safe to proceed against the said appellant, he cannot avoid it. Section 145, C.P.C. Is more than clear on the point. Of course, it will be open to Mirza Anwar Ahmad to run after the person for whom he stood surety to get the recompense, but the tripartite agreement enables the creditor to pursue his remedy against the appellant alone. In this manner the contention raised by counsel was not much relevant in the context, more particularly in the background of the documents which he concedes to have executed subsequently acknowledging the liability in a convincing manner.
6. There is no substance in the appeal and the same is dismissed with costs throughout as also the interest.