Amarjit Singh vs State Bank Of Patiala & Ors
2014 Latest Caselaw 6652 Del

$~R-102
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+    RFA 571/2005

                                            Decided on 10th December, 2014
      AMARJIT SINGH                                     ..... Appellant
                          Through:     Mr. V.K. Malik and Mr. Rahul Raj,
                                       Advs.
                   Versus
      STATE BANK OF PATIALA & ORS.                         ..... Respondents
                   Through: None.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J. (Oral)

1. Respondent no. 1 filed a suit for recovery of `4,30,720/- together with

interest and costs etc. against the appellant and respondent nos. 2 to 5 before

the trial court. It was alleged that respondent no. 2 was a partnership firm of

which respondent nos. 3 to 5 were partners. At their request, term loan of

`1.13 lacs was sanctioned in the name of respondent no.1 for purchase of a

car. A medium term loan agreement dated 2nd January, 1991 was executed

by the respondent nos.2 to 5. Subsequently, overdraft facility of `1.5 lacs

was also granted to respondent no.2 for one year. Appellant guaranteed the

loan and executed guarantee agreements. Respondent nos. 2 to 5 defaulted

in making payment and, hence, the suit.

2. Respondent nos. 2 to 5 and appellant did not appear after service of

summons and were proceeded against ex-parte. Respondent no.1 led ex-

parte evidence and proved application for grant of loan dated 11th January,

1991 as Ex. PW1/1; letter of arrangement dated 2nd January, 1991 as

Ex.PW1/2; medium term loan agreement dated 2nd January, 1991 as

Ex.PW1/3; guarantee form No. P dated 2nd January, 1991 as Ex.PW1/4;

deed of guarantee dated 2nd January, 1991 as Ex.PW1/5; counter indemnity

as Ex.PW1/6; DP note dated 11th January, 1991 as Ex.PW1/7, delivery letter

dated 11th January, 1991 as Ex. PW1/8, letter of continuity as Ex.PW1/9,

revival letter dated 11th January, 1991 as Ex.PW1/10, guarantee form P as

Ex.PW1/11; legal notice dated 10th November, 1992 as Ex.PW1/12, sanction

letters regarding decision to file the suit as Ex. PW2/A and Ex.PW2/B

respectively, balance confirmation letters dated 31st March, 1993, 21st April,

1993, 31st March, 1994, 1st April, 1994 and 1st April, 1995 as Ex. PW2/1 to

Ex.PW2/5 and statements of account as Ex.PW2/6 and Ex.PW2/7

respectively. Trial court passed an ex-parte decree dated 2nd March, 2002

against the appellant and respondent nos. 2 to 5 in respect of the dues in

medium term loan as well as overdraft facility.

3. Appellant filed an application under Order IX Rule 13 of Code of

Civil Procedure, 1908 (the Code, for short) for setting aside the ex-parte

decree. It was alleged in the application that appellant was not served with

the summons. This application was allowed vide order dated 21 st March,

2003 and ex-parte decree qua the appellant was set aside.

4. Appellant was afforded opportunity to file written statement which he

did. In the written statement, appellant, inter alia, alleged that he did not

sign the guarantee agreements. He never stood guarantor for the credit

facilities extended to respondent no. 2. All the documents were fabricated

by the respondent no.1. He denied that he had executed the guarantee

agreement dated 2nd January, 1991. Appellant further alleged that his address

in the guarantee agreement was mentioned as House No. 275, Kailash Hills,

East of Kailash, New Delhi; whereas he was residing at E-118, Greater

Kailash-I, New Delhi. In fact, address of respondent nos. 2 to 5 (defendant

nos. 1 to 4) was given in the guarantee agreement and not of the appellant.

Further, that guarantee agreement was only in respect of medium term loan

facility. No guarantee agreement in respect of overdraft facility was placed

on record. Suit was not filed by the respondent no.1 through an authorized

person. Shri P.P. Wadhwa was not competent to sign, verify and institute the

plaint. It was alleged that guarantee agreement was executed on 2 nd January,

1991; whereas suit was filed in the year 1997, thus, suit was barred by time.

It was prayed that suit be dismissed.

5. In the replication, respondent no.1 denied the averments made in the

written statement and reiterated what was stated in the plaint.

6. Following issues were framed by the trial court:

1. Whether the suit against defendant no. 5 is barred by limitation? OPD-5

2. Whether the suit has been signed, verified and instituted by a duly authorised and competent person? OPP

3. Whether the plaintiff is entitled for the suit amount from the defendant no. 5? OPP

4. Whether the plaintiff is entitled for the interest, if so then at what rate and to what extent? OPP

5. Relief.

7. Respondent no.1 examined its Chief Manager, Shri N.S. Chahar as

PW1, who proved the application submitted by the respondent no. 2 for

grant of overdraft as PW1/1; Letter of arrangement as Ex. PW1/2; medium

term loan agreement as Ex. PW1/3; guarantee form as Ex. PW1/4; deed of

guarantee as Ex. PW1/5 and counter indemnity as Ex.PW1/6. Other

documents were proved as Ex.PW1/7 to Ex.PW1/11, however, these

documents have not been found relevant for the purpose of disposal of suit

qua the appellant since these relate to overdraft facility and respondent no.1,

during the trial conceded that overdraft facility was not guaranteed by the

appellant. Copy of legal notice was proved as Ex. PW1/12. Respondent

no.1 also examined its officer Shri B.K. Pal as PW2. He proved balance

confirmation letters as Ex.PW2/1 to Ex.PW2/5. Certified copy of statement

of account in respect of medium term loan was proved as Ex.PW2/7. As

against this, appellant examined himself as DW1. He alleged that he had

also opened a bank account with the respondent no.1 and had signed certain

documents. His signatures on the said documents were different than what

were appearing on the guarantee agreement. He proved account opening

forms as Ex. DW1/PA and Ex.DW1/PB respectively. Hand writing expert,

namely, Shri V.C. Mishra was examined as DW2. He had given two reports

and has proved the same as Ex.DW2/1 and Ex.DW2/2 respectively. Report

Ex.DW2/1 relates to the guarantee agreement.

8. Trial court scrutinized the evidence adduced by the parties and has

held that Shri P.P. Wadhwa was competent to institute the suit having been

authorized vide order dated 15th March, 1986 of executive committee of

respondent no.1, duly published in Gazette of India part 3 section IV on 7th

June, 1986. Trial court further held that suit was within limitation. Loan was

taken in the year 1991 and suit was filed in the year 1997. Balance

confirmation letters Ex. PW2/1 to PW2/3 were duly signed by the principal

borrowers, that is, respondent nos. 2 to 5. By placing reliance on Syndicate

Bank vs. N.D. Rai 1983 Rajdhani Law Reporter note 50, it was held that

acknowledgement of debt by principal debtor was binding on the surety

also. Trial court has concluded that signatures on the guarantee deeds were

that of appellant. Trial court held that appellant being a guarantor in the

medium term loan facility was liable to pay the amount due and outstanding

in the said loan account. As per the certified copy of statement of account

`57,683.25 was due and outstanding against the principal borrowers, which

amount appellant, being guarantor was liable to pay jointly and severally

with the principal borrowers. Accordingly, a decree for the said amount

together with interest @ 15% per annum with effect from 29th January, 1994

till realization of the decretal amount has been passed.

9. Aggrieved by the impugned decree appellant has preferred this

appeal.

10. Learned counsel for the appellant has vehemently contended that

respondent no.1 has failed to prove that signatures on the guarantee

agreement were that of appellant; whereas appellant has succeeded in

leading cogent evidence to show that signatures on the guarantee deeds were

not his. It is further contended that trial court has erred in ignoring the report

of handwriting expert and forming his own opinion to conclude the

guarantee agreements were signed by the appellant. I do not find any force

in this contention of the learned counsel. Trial court has considered the

statement of PW1 and has also compared the signatures and has come to

conclusion that the manner of commencement of the signatures and the flow

indicate that both set of admitted signatures as well as disputed signatures

were that of appellant. No fault can be found in this approach adopted by the

trial court. It is trite law that Court can compare the admitted hand writing

and disputed hand writing to form its own independent conclusion,

irrespective of opinion of hand writing expert. Opinion of handwriting

expert is not a substantive evidence and is merely an opinion for the

assistance of the court to arrive at correct conclusion.

11. In Lalit Popli vs. Canara Bank & Ors. AIR 2003 SC 1796,

Supreme Court has held thus:

"It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under

Sections 45 and 47 the evidence is an opinion. In the former case, it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily , Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there. Court has power to compare the writings and decide the matter."

(emphasis supplied)

12. Trial Court has considered the report of handwriting expert Ex.

DW2/A at thread bare and has compared the admitted signatures of

appellant with his disputed signatures and has held that signatures appear to

be that of appellant as the flow in which the same have been put shows that

they are not put by any other person other than appellant. It has been further

noted that signatures of appellant on the guarantee agreements appear as

many as at 10 places and all these signatures could not have been forged.

Trial Court has also relied on the answer given by the handwriting expert

Shri V.C. Mishra (DW2), in his cross examination that appellant signs in

two styles. Since appellant signs in two different style, in my view, the

difference in signatures on guarantee agreement and subsequent account

opening form will not be sufficient to discard the guarantee agreement, more

particularly, when PW1 has categorically deposed that he obtained the

signatures of appellant on two guarantee forms.

13. I have also perused the relevant documents and find similarity in the

flow of admitted as well as disputed signatures. In the light of statement of

PW1 coupled with the fact that there is similarity in the signatures, in my

view, trial Court has rightly concluded that guarantee agreements were

signed by the appellant, thus, he cannot escape his liability.

14. Appellant stood guarantor for the loan extended to respondent no.2 of

which respondent nos. 3 to 5 were partners. Appellant has admitted in his

cross-examination that respondent no. 5 (defendant no. 4) was known to him

for the last 25 years. Appellant is not a stranger to the respondent nos.2 to 5.

This fact gives rise to strong probability of appellant guaranteeing the loan

granted to respondent no.2, in which his close friend was partner.

15. Learned counsel has vehemently contended that non mentioning

parentage and correct address of the appellant on the guarantee form

invalidates the same as it clearly shows that it has been manipulated by the

bank officials. I do not find any force in this contention of learned counsel

as name of the appellant has been correctly mentioned in the guarantee

forms, inasmuch as, same have been signed by him at about 10 places and

which signatures have been duly proved by the respondent no.1. Thus, non-

mentioning of parentage and address of appellant will not make invalidate

the guarantee forms.

16. No other argument advanced nor any other point pressed.

17. For the foregoing reasons, appeal is dismissed.

A.K. PATHAK, J.

DECEMBER 10, 2014 ga