9911796707
TMI Blog1997 (2) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant herein is the guarantor. However, in the guarantee agreement dated January 24, 1995, between the parties it is also stated that the appellant herein would be treated as principal debtor jointly with the said Rajadhiraj Industries Limited. The abovesaid sum is claimed pursuant to the loan granted by the respondent herein, which has to be repaid in several instalments, the first of which being payable on February 28, 1995. The other instalments are payable in the months of May, August and November, 1995, and likewise in the succeeding years but all the subsequent instalments were not paid at all and statutory notice was given on August 11, 1995. It was no doubt addressed to the principal debtor with a copy to the appellant-guarantor herein. But in the said statutory notice, while referring to the said copy sent to the appellant at the bottom of the abovesaid statutory notice, the following passage addressed to the appellant itself also appears: "Under instructions from our clients, they (appellant) are hereby advised to pay the above dues of our clients as guarantor thereof within 21 days from the date hereof failing which our clients have instructed us to file win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge wrongly proceeded as if the appellant is unable to pay its debts, and admitted the company petition and caused advertisement to be made. On the other hand, learned counsel for the respondent relies on certain passages in the above cases, Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371, and Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194, themselves to meet the above referred to the first submission of learned counsel for the appellant. He specifically points out that even though on July 23, 1996, the learned judge pronounced the order, dismissing the company petition, he did not sign the order and that since counsel for the petitioner in the company petition immediately thereafter represented before the learned trial judge about the fact that the above referred to material part of the guarantee document was not earlier brought to the notice of the learned judge, the learned judge posted the matter the very next day and after affording opportunity to both learned counsel heard both of them and then only passed the impugned order dated August 23, 1996. In the above circumstances, according to the said counsel, in the light of the observations in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that before the judgment pronounced is signed by the learned judge, it can be changed after notice to the parties and rehearing on the point even without a formal review petition. The above referred to observation of Bose J. in Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194, has been referred to in Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371, impliedly approving it. That is why, later in paragraph 7 of the judgment in Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371, it is stated thus: "But, while the court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons." No doubt, learned counsel for the appellant very much relies on what is contained in paragraph 9 of the said judgment in Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371, which runs as follows: "Once that stage is reached and the court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted ... In the instant matter, we find that there is no material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel to argue afresh in the light of the aforesaid material part of the guarantee document, there is no infirmity at all in the impugned order in so far as the above referred to first submission is concerned. Further, the appellant having already argued the company petition afresh after it was posted for being mentioned, he cannot, after the company petition is admitted and advertisement ordered, turn round and seek to contend that the learned judge should not have reopened the matter and modified his earlier judgment. In K.K. Arunachalam v. K. Nallusamy [1995] 2 LW 456, the Division Bench judgment relied on by learned counsel for the appellant, no doubt it has been held thus: "We are unable to appreciate how after an order is passed it could be reversed by bringing it for being mentioned and getting the whole matter reconsidered. In this case, the procedure adopted by the party for bringing up the matter for being mentioned on the ground that his counsel was not heard is not in accordance with law." But, it must be stated that in the above decision, there is no finding or material to show that the order referred to in the abovesaid passage was not signed by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no infirmity in the impugned order. We may also add that in Sangam Lal v. Rent Controller Eviction Officer, AIR 1966 All 221 [FB] also it has been held that until the judgment is signed it can be altered or amended or even changed completely, provided notice is given to the parties and they are heard before the proposed change is made. Coming to the second submission of learned counsel for the appellant, it is clear that a huge amount is due to the respondent. Even though the appellant is termed as guarantor in the guarantee document, it is also mentioned therein that he would be treated as principal debtor. Further, the loan granted is not in dispute and the execution of the guarantee document is also not in dispute. The demands made by the respondent for the amount due including the statutory notice is not in dispute. Further, even though the statutory notice is addressed to the principal debtor, specific demand is made even against the guarantor and also specifically saying in what is contained in the above referred to extracted passage underneath the aforesaid statutory notice, that the said contents would be treated as statutory notice under section 434 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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