Full Text
HIGH COURT OF DELHI
RFA 571/2005
Decided on 10th December, 2014 AMARJIT SINGH ..... Appellant
Through: Mr. V.K. Malik and Mr. Rahul Raj, Advs.
Through: None.
JUDGMENT
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. 2014:DHC:6936
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 exparte 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 21st 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 2nd 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 PW[1], 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 PW[2]. 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 DW[1]. 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 DW[2]. 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 PW[1] 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 (DW[2]), 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 PW[1] 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 PW[1] 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, nonmentioning 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