Delhi High Court
Virjesh Kumar Gupta vs Kotak Mahindra Bank Limited & Ors. on 27 August, 2014
$~21.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 5453/2014
Date of decision: 27th August, 2014
VIRJESH KUMAR GUPTA
..... Petitioner
Through Mr. Hashmat Nabi, Advocate.
versus
KOTAK MAHINDRA BANK LIMITED & ORS.
..... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE V. KAMESWAR RAO
SANJIV KHANNA, J. (ORAL):
CM No. 10840/2014
Exemption application is allowed, subject to all just exceptions.
W.P.(C) No. 5453/2014
The petitioner is defendant No. 2 in the original proceedings initiated
by Kotak Mahindra Bank Limited (Bank, for short) in OA No. 253/2011
pending before the Debt Recovery Tribunal-II, Delhi. In the said
proceedings, the petitioner herein has been described as a co-borrower with
AR Industries Private Limited. Two brothers of the petitioner Devender
Kumar and Subhash Chand Aggarwal, reside in the same property where
the petitioner was/is residing, are the co-guarantors.
W.P. (C) 5453/2014 Page 1 of 4
2. The petitioner has filed his defence and submitted that his signatures
on the documents relied upon by the bank are forged. The petitioner has
also given explanation with regard to two cheques, which were issued by
him in favour of the bank.
3. The petitioner filed an application under Order I, Rule 10 of the
Code of Civil Procedure, 1908 and an application for expert examination of
his signatures on the documents produced by the bank. These two
applications were disposed of by the Debt Recovery Tribunal vide order
dated 18th February, 2013 recording as under:-
" As far as his first contention of discharging at
the preliminary stage is concerned it can be done
only after the bank is given an opportunity to
establish their case by adducing evidence. The bank
makes an averment that he has signed as a co
borrower and defendant denies the same by saying
that he has not executed any document. So, on that
plea at the threshold he is not entitled to a discharge.
That prayer is dismissed.
The second prayer is seeking an expert
opinion with regard to his disputed signatures in the
documents produced by the bank. Defendant no. 2
has stated that the bank has not obtained any I.D.
proof, address proof as ordinarily done in similar
situation. This contention is answered by the
applicant's counsel by producing their documents
which shows a photocopy of the driving license of
defendant no. 2. It is stated that the original was
seen and returned. The second defendant is not a
stranger according to the counsel of the bank.
Defendants no. 2, 3 and 4 are shown to have the
same address and they are brothers. As far as
comparison of signatures are concerned it may not be
justifiable for this Tribunal to come to any
W.P. (C) 5453/2014 Page 2 of 4
conclusion at this initial stage on verifying the
signatures but a close scrutiny of the signatures that
appears in this application as well as the documents
alleged to be signed by him have a close similarity
and prima facie there is no sufficient grounds
available to send this document for comparison of
his signature. The opinion rendered by an expert is
also not conclusive. It remains as an opinion. The
defendant has also not produced any of his admitted
signature of the relevant period which are vital for
examination. So there are no sufficient grounds
available to order a comparison of signature of
defendant no. 2. But this finding will not stand in
the way of defendant in disputing execution of
alleged documents at any stage of this case. The
application is devoid of merit and the application is
dismissed."
4. The petitioner accepted the said order which fairly holds that the
findings recorded with regard to the second prayer would not stand in the
way of the petitioner herein disputing the execution of the alleged
documents at a later stage. This direction was given to protect and ensure
that the final adjudication, which is after evidence, does not get affected or
prejudiced by the decision on the application, which was being disposed of
at the initial stage without recording of evidence.
5. The petitioner after filing evidence by way of affidavit and opinion
of an handwriting expert, moved another application before the Debt
Recovery Tribunal for examination and opinion of a Government
Examiner. The said application was disposed of vide order dated 2nd June,
2014 stating that the earlier application forecloses the said issue and relies
W.P. (C) 5453/2014 Page 3 of 4
on the reasons given in the earlier order dated 18th February, 2013.
6. Aggrieved, the petitioner herein preferred an appeal, which has been
dismissed by the impugned order dated 23rd July, 2014.
7. It is not mandatory that in all cases when a dispute of such nature is
raised that the disputed signatures should be referred to CFSL for
examination and opinion. Authenticity and genuineness is a matter of
evidence and whether or not, signatures of the petitioner herein are genuine
or forged and the effect thereof, will be examined and decided in the
adjudication proceedings. The petitioner has filed a report of a handwriting
expert, upon which he relies. It is in this light, we have quoted the earlier
order dated 18th February, 2013, which specifically records that the
findings given therein would not stand in the way of the petitioner
disputing the execution of the alleged documents at a later stage. We
perceive and believe that the said findings equally holds good for the
second application as the second order also primarily relies on the
reasoning given in the first order. Accordingly, we do not find any merit in
the present writ petition and the same is dismissed.
SANJIV KHANNA, J.
V. KAMESWAR RAO, J.
AUGUST 27, 2014
VKR
