Virjesh Kumar Gupta v. Kotak Mahindra Bank Limited & Ors.

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 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 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