State Bank Of India vs Gyarsi
2021 Latest Caselaw 8510 MP

                                                                      1                                    FA-304-1998
                                         The High Court Of Madhya Pradesh
                                                   FA No. 304 of 1998
                                                             (STATE BANK OF INDIA Vs GYARSI)


                                Jabalpur, Dated : 09-12-2021

                                        Shri        Ashish     Shroti,       learned           counsel     for   the

                                appellant/plaintiff/State Bank of India.
                                        None for the respondent/defendant/Gyarsi.

This appeal has been filed on behalf of the

appellant/State Bank of India, Branch Kamti (Rangpur) Rural Branch Through Branch Manager, Tahsil Sophagpur, District Hoshangabad under Section 96 of the Code of Civil Procedure, 1908 (for brevity "C.P.C") being aggrieved of judgment & decree dated 4.3.1998 passed by the learned Additional District Judge Sohagpur, District Hoshangabad in Civil Suit No.12B/1995 rejecting the claim of the appellant/plaintiff for recovery of a sum of Rs.68313/-

alongwith due interest.

It is submitted by learned counsel for the appellant/plaintiff that the respondent/defendant admitted signing loan papers. He had also admitted that an old thresher was supplied to him but overlooking overwhelming evidence available on record, the debt including acknowledgement of debt as contained in Exhibit P/8, the suit has been dismissed.

Brief facts of the present appeal are that as per appellant/plaintiff, the respondent/defendant had moved an

Signature Not Verified SAN application on 28.11.1991 seeking crop loan for Rs.15000/-, Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 2 FA-304-1998 Rs.28305/- for thresher & other agricultural equipments and Rs.16000/- towards dairy loan for the purpose of purchasing buffaloes. The crop loan was sanctioned with interest @ 11.5% whereas other loans were sanctioned @ 15% interest. It is submitted that these loans for thresher were repayable in

annual installments of Rs.3000/- and interest thereon whereas dairy loan was payable in installemnt of Rs.1000/- per month. The respondent/defendant did not pay the stipulated amount. However, he had deposited a sum of Rs.1000/- on 20.1.1998 in thresher loan account and another sum of Rs.1000/- in dairy unit account. As there was default in repayment of loan, a notice was issued on 3.12.1994 seeking recovery but when no response was given then suit was filed in the year 1995.

It is submitted that the learned Trial Court had framed following issues:-

1.Whether Field Officer/Kailash Prasad Agrawal of the plaintiff/Bank had fraudulently obtained signatures on different papers from the defendant?

2. Whether signatures of defendant were obtained at the residence of Bank Officer Kailash Prasad Agrawal?

3. Whether Bank Officer Kailash Prasad Agrawal had fraudulently withdrawn loan amount and had supplied old thresher to the defendant?

4. Whether plaintiff is entitled for a sum of Signature Not Verified SAN

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Rs.48715/- and 15.5% interest thereon from the date of filing of the suit?

5. Whether defendant is liable to pay Rs.19598/- with 11.5% interest from the date of filing of the suit?

6. Whether defendant had mortgaged his land situated at Village Renipani, Tahsil Sohagpur, District Hoshangabad contained in Survey No.28/1 admeasuring 14.05 acre?

7. Whether plaintiff is entitled to sell the said

land with a view to recover his loan amount?

8.Relief & cost of the suit?

It is submitted that the plaintiff had examined two witnesses,namely, Branch Manager Kailash Prasad Agrawal & Field Officer Satish Kumar Sharma in support of the case of the plaintiff. It is also submitted that the evidence of these two plaintiff witnesses have not been appreciated by the Court below and the suit has been wrongly dismissed.

Kailash Prasad Agrawal (PW.1) Deputy Manager, State Bank of India, Manendragarh, District Sarguja deposed that he was working as Branch Manager at Kamti, Branch of State Bank of India from 1989 to 1992. A sum of Rs.95000/- as a term loan and Rs.15000/- towards purchase of seeds & fertilizers were sanctioned in favour of defendant Gyarsi for which he had moved an application (Exhibit P/1). This Signature Not Verified

witness further deposed that he had filled Exhibit P/1 after SAN

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taking details from Gyarsi and on Page No.5 had enclosed his report as a Supervisor of the Bank whereon he had signed from A to A part on Exhibit P/1. Gyarsi had signed in front of him on Page Nos.1,2,3&4. On Page No.7, this witness had given report in regard to purchase of milch animals. This witness also deposed that Exhibit P/2 is application for purchase of fertilizers & seeds, which was filled by him in his own handwriting and was signed by Gyarsi. This witness further deposed that he had filled details of Mahesh Malvi, who is a seller of fertilizers after seeking clarification from Gyarsi and had obtained signatures of Gyarsi on the reverse of Exhibit P/3. He had obtained signatures on Page Nos.1,2,3,4 of document Exhibit P/4. It is further mentioned that Gyarsi had mortgaged his land, deed of which is Exhibit P/6 and registration of mortgage deed in the hands of Sub Registrar is Exhibit P/7.

In cross-examination, Kailash Prasad Agrawal (PW.1) has deposed that Mushtaq Khan had sold cow-buffalo to the defendant. The loan was sanctioned on 10.1.1992. Cost of buffaloes was paid to Mushtaq Khan through banker's cheque. On Exhibit P/4, Mushtaq Khan had signed as a guarantor. He further admits that on Exhibit P/4, there is no description to show that signatures of Mushtaq Khan were obtained as a Guarantor. He admits that details of guarantor like name of his father, his capacity and address etc are Signature Not Verified SAN

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mentioned but such details have not been produced before the Court. This witness further admitted that he had obtained signatures of Mushtaq Khan as a witness and not as a surety because he was not in a position to produce any document to show that Mushtaq Khan had given surety.

Kailash Prasad Agrawal (PW.1) was re-examined on 24.2.1998. In cross-examination, he has admitted that payment for purchase of animals was made on 29.2.1992 through banker's cheque. Similarly, payment to M/s.Sanjay Electrical for thresher was made through banker's cheque. He admitted that firstly Gyarsi had submitted cash memo and thereafter banker's cheques were issued. In Paragraph No.14, this witness has admitted that after sanction of the loan, a loanee is given material for which loan is sanctioned. He admits that no material was supplied to Gyarsi prior to sanction of the loan. He has admitted that total loan of Rs.1,05,000/- was sanctioned. This witness has further admitted that defendant had first purchased quotation and thereafter he had brought

cash memo. Defendant had given quotation for thresher on the date on which he had applied of loan. PW.1 admits that quotation is not available in the Court file. He also admitted that before disbursement of term loan, 25% of margin money is to be deposited by the person, who is seeking loan and further admitted that on 14.1.1992, margin money for Signature Not Verified SAN purchase of thresher was deposited, which was to the extent Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 6 FA-304-1998 of Rs.7200/-. Similarly, defendant had deposited margin money of Rs.5000/- on 4.3.1992 for purchase of dairy unit whereas he had purchased buffaloes on 29.2.1992. This witness could not answer as to why he had not mentioned in his complaint that payment was made through banker's cheque? A fact which could not be explained by PW.1 and he admitted that his counsel alone can explain this. This witness has admitted that Mushtaq Khan is an employee at the Shop of Mahesh Malvi, who is a seller of fertilizers. In Paragraph No.19, this witness has admitted that Mushtaq Khan used to meet him in the bank and he had obtained signatures of Mushtaq Khan on Exhibit P/16, Exhibit P/17 & Exhibit P/18 in the Bank itself. On Exhibit P/18, Mushtaq Khan had earlier signed in English and thereafter he had obtained his signatures in Hindi. On mortgage deed (Exhibit P/6), he had obtained signatures of Mushtaq Khan and they are similar to the signatures as are mentioned on Exhibit P/17 & Exhibit P/18. PW.1 admitted in Paragraph No.18 that by mistake he had deposed before the Court that he was knowing Mushtaq Khan since 19.2.1992.

Similarly, Satish Kumar Sharma (PW.2) has deposed that on 8.10.1995, Rs.19598/- was due balance in crop loan account, Rs.12732/- was due balance in dairy unit account and Rs.35983/- was due balance in thresher loan account including Signature Not Verified SAN interest upto date.

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In cross-examination, Satish Kumar Sharma (PW.2) has admitted that the loan which was given to the defendant on 10.1.1992 comes out to Rs.1,05,000/-. He admitted that on 1.7.1992, Gyarsi was given crop loan of Rs.7730/- and further a sum of Rs.5000/- on 30.7.1992. Similarly, on 11.1.1992, the bill of thresher was paid. In dairy unit account, a sum of Rs.5500/- was disbursed on 29.2.1992 and then on the same date, another sum of Rs.10,500/- was disbursed. He admitted that he has not brought the record to show that any payment was made to the dealer for the thresher bill. This witness has admitted that the cost of thresher was not paid to Gyarsi but was paid to the dealer from whom thresher was purchased. He admitted that he has not disclosed the name of shop from where Gyarsi had purchased thresher. He also admitted that a sum of Rs.5000/- was paid as a crop loan after obtaining signatures of Gyarsi on the withdrawal slips but admitted that withdrawal slips were not produced before the Court. He admits that certain amount was paid to Mahesh Malvi through banker's cheque and banker's cheque is not transferable. He admits that he did not produce any acknowledgement of giving banker's cheque to Mahesh Malvi. PW.2 further deposed that the bills through which Mahesh Malvi would have supplied fertilizers to Gyarsi must be in the accounts of the bank. In Paragraph No.15, PW.2 admits that record Signature Not Verified SAN showing as to whom money was paid for purchase of dairy Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 8 FA-304-1998 items has not been produced before the Court and they may be in the bank record. PW.2 in Paragraph No.15 of his cross- examination admits that no amount on account of purchase of animals was paid to Gyarsi but amount was paid directly to the seller.

Satish Kumar Sharma (PW.2) has admitted that papers were received for mortgaging the loan of Gyarsi on 10.1.1992 and they were sent to the office of Sub Registrar on 23.1.1992. This witness has admitted that on the complaint of Gyarsi, departmental enquiry is pending against Kailash Prasad Agrawal. This witness has further admitted that on Exhibit P/8, he had obtained signatures of Gyarsi at Sohagpur. He had obtained signatures of Gyarsi at the shop of Mushtaq Khan i.e. Fertilizer Shop where Mushtaq Khan is working. This witness has further admitted in Paragraph No.20 of his cross-examination that Mushtaq Khan is personally known to him. Though this witness has denied that acknowledgement of disbursement of loan was obtained while disbursing the loan but evidence of PW.1 & PW.2 is required to be examined in the minutest of details.

Shri Ashish Shroti, learned counsel for the appellant/plaintiff is in agreement that there is neither any counterfoil or acknowledgement of banker's cheque through which allegedly payment was made to the dealer of thresher

Signature Not Verified SAN or to Mushtaq Khan from whom which animals/buffaloes Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 9 FA-304-1998 were allegedly purchased by the defendant or of Mahesh Malvi, who had allegedly supplied fertilizers to the defendant. He further admits that Exhibit P/15 is not a quotation but is a cash memo. Cash Memo is issued after receiving cash and on delivery of goods. This cash memo is dated 2.1.1992. There is an admission on the part of Kailash Prasad Agrawal (PW.1) in his cross-examination that on 10.1.1992, loans were sanctioned to Gyarsi. If loans were sanctioned to Gyarsi on 10.1.1992 then there was no occasion for Gyarsi to have deposited margin money of Rs.7200/- on 14.1.1992.

Kailash Prasad Agrawal (PW.1) in Paragraph No.14 has admitted that Gyarsi had given loan application on 10.1.1992 and he had furnished quotation alongwith loan application but no quotation is available on record and in place cash memo dated 2.1.1992 is available on record. This witness has admitted that on 11.1.1992, payment was made to Ms.Sanjay Electrical through banker's cheque but there is no receipt from M/s Sanjay Electrical or any counterfoil of banker's cheque or any document showing that what was the number and details of the banker's cheque through which payment was made and on which date, said banker's cheque was encashed especially when Satish Kumar Sharma (PW.2) has admitted in his cross- examination that banker's cheque is non-transferable.

Similar is the position in regard to payment of banker's

Signature Not Verified SAN cheque for purchase of buffaloes and payment made to Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 10 FA-304-1998 Mahesh Malvi for purchase of fertilizers. Infact, there is an acknowledgement of debt contained in Exhibit P/8 dated 22.12.1994 in which there are signatures of Gyarsi from A to A part wherein he allegedly acknowledged debt of Rs.1,05,000/-.

The fact of the matter is that Satish Kumar Sharma (PW.2) has admitted that as on 8.10.1995, a total sum of Rs.68313/- were outstanding as is evident from his examination-in-chief in Paragraph Nos.5 & 6, therefore, there was no occasion for defendant-Gyarsi to have acknowledged outstanding sum of Rs.1,05,000/- on 22.12.1994 when Gyarsi

had not any installment in between, which is a prima facie evidence of forgery committed by the Bank Officials in obtaining signatures of the defendant on blank papers and thereafter manipulating them as per their own will & desire. This observation is based on the evidence of PW.2 that he had obtained signaures of the defendant at the shop of Mushtaq, which is contrary to the evidence of PW.1.

Shri Ashish Shorti, learned counsel for the appellant/plaintiff is not in a position to answer as to how a sum of Rs.1,05,000/- became due when total disbursement of loan was less than Rs.60,000/- as per their own admission in the year 1992.

Thus, when evidence of Kailash Prasad Agrawal (PW.1)

Signature Not Verified SAN & Satish Kumar Sharma (PW.2) is read in conjunction, it is Digitally signed by AMIT JAIN Date: 2021.12.14 19:06:07 IST 11 FA-304-1998 evident that Gyarsi is a tribal person. There are no details of payment made to respective dealers from whom bills were obtained. Exhibit P/16, Exhibit P/17 & Exhibit P/18 are documents issued by Panchayat Sohagpur, District Hoshangabad. They contain signatures of Mushtaq Khan. There is admission of Satish Kumar Sharma (PW.2) that he had obtained signatures of Gyarsi at place of Mushtaq Khan at Sohagpur, which belies the statement given by Kailash Prasad Agrawal (PW.1) that he had obtained signatures of Gyarsi in the bank premises itself.

Thus, when all the facts are taken into consideration and on appreciation of omissions & contradictions, which are evident on record, it cannot be said that the learned Trial Court has erred in appreciating the evidence on record and has committed any illegality in dismissing the suit after properly answering all the framed issues on the basis of the available evidence. There is overwhelming evidence to point out manipulation on the part of the bank authorities and under such facts and circumstances of the case, all the issues which have been framed by the learned Trial Court, have been correctly answered by it especially issue Nos.2,3&4 that loan was never disbursed in favour of the defendant. There is no evidence of its disbursal for the goods allegedly supplied to the defendant and further the plaintiff has failed to discharge

Signature Not Verified SAN its burden to prove its case.

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Accordingly, this appeal fails and is dismissed. Appellant/plaintiff/State Bank of India to bear cost of litigation for defendant-Gyarsi as well throughout.

(VIVEK AGARWAL) JUDGE

amit

Signature Not Verified SAN

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