1. This substantive appeal is filed by the appellants/Original defendant No. 5 being aggrieved by the judgment and Order dated 7.11.2003, passed by the learned PO of DRT, Bangalore, in O.A. No.1248/1995 By the judgment and Order the learned PO allowed the OA with cost and ordered defendant Nos. 1 to 5 to pay to the applicant Bank jointly and severally sum of Rs. 17,84,2717- with subsequent interest at the rate of 21.5% p.a. with quarterly rests from the date of application till the date of realisation. He also gave certain consequential declarations and ordered issuance of Recovery Certificate in the above stated terms. Being aggrieved, only the original defendant No. 5 Mr. Shantilal Jain has preferred this appeal in this Appellate Tribunal. The original defendant Nos. 1 to 4 remained ex parte and it was only defendant No. 5 who had filed a written statement in the DRT.2. I have heard Mr. S. Ravi, Advocate for the appellant and Mr. K.Ramasamy, Advocate for the respondent-Bank I have also gone through the proceedings which have been called from the DRT, Bangalore and, in my view, the learned PO was not correct in allowing the OA of the Bank as against defendant No. 5. .
3. Defendant No. 5 has been arraigned in the OA by the Bank as a guarantor to the loan transaction. Case of the Bank is that defendant Nos. 2, 3,4 and 5, approached the Bank for sanction of Foreign Exchange Bills Purchase Advance/Credit facility. Defendant No. 1 is a proprietary concern, which deals mainly in export of silk fabrics.
Defendant No. 2 Usha Jain, is the Proprietrix of this concern. Other defendants arc arraigned as guarantors including defendant No. 5.
Defendant Nos. 1 to 4 remained ex parte despite due service upon them and did not choose to contest the matter in the DRT. Defendant No. 5 present appellant Shantilal Jain, however, appeared and filed his Written Statement. Right from the beginning it was the stand of defendant No. 5 that he never executed any guarantee deed and that his signature was forged on the said deed and he had nothing to do with the liability in question.
4. In DRT, in support .of its case, the applicant Bank examined the Chief Manager of the applicant Bank Mr. Vinayak Kulkarni, as AW 1 through an Affidavit. He was extensively cross-examined by the defendant No. 5. Defendant No. 5 also examined himself as DW1 through an affidavit. Since it was the defence of defendant No. 5, that it was not his signature which appeared on the guarantee deed and that it was forged, the DRT sent the said disputed signature to the handwriting expert Mr. C. Ashwathappa, at Bangalore, who is an Assistant Director of Forensic Science Laboratory, Bangalore. The said disputed signature was sent along with the admitted signature on the income-tax returns of two years of defendant No. 5. In the report submitted by the said handwriting expert, a categorical finding was given by him that the disputed signature and the admitted signature of Shantilal Jain, did not tally. He was also called as a witness to give his evidence and he was cross-examined by the Bank.
5. The learned Presiding Officer, however, by his impugned judgment and order, rejected the opinion given by the handwriting expert and believing in toto the evidence given by Mr. Vinayak Kulkarni, the Branch Manager of the applicant Bank, who according to him was eye-witness, came to the conclusion that there' were absolutely no grounds to disbelieve the evidence of the applicant Bank. Holding this, he made defendant No. 5 also jointly and severally liable along with defendant Nos. 1 to 4, to pay to the applicant Bank amount of Rs, 17,84,271/-, with interest, etc.
6. As far as observation of the learned Presiding Officer with respect to the probative value of handwriting expert is concerned in my view, no fault can be found with it on principle. The learned Presiding Officer had observed, relying upon Shashi Kumar Banerjee and Ors. v.Subodh Kumar Banerjee, AIR 1964 Supreme Court 529, that expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. He has further observed, taking recourse to the very same judgment that before acting on such evidence, it is usual to see if it is corroborated either by clear evidence or by circumstantial evidence.
There is no quarrel with the proposition. Indeed opinion of the handwriting expert can never take the place of substantive evidence.
However in the present case at hand one had to see whether there is any corroborative evidence. In the present case at hand the Affidavit filed by the Bank Manager Mr. Vinayak Kulkarni and his deposition in the Court so also his cross-examination has to be looked into as that is the substantive evidence.
7. Mr. Vinayak Kulkarni Branch Manager in his Affidavit dated 9.7.1997, has stated that he was the Manager of the applicant Bank at the relevant lime. He has further stated in Para-2 that "the first respondent along with respondent Nos. 2, 3, 4 and 5, approached the applicant Bank for sanction of Foreign Bills Purchase Advance/Credit facility. At the request of the respondent Nos. 1 to 5, the applicant Bank sanctioned an ad hoc Foreign Bills Purchase Advance to the tune of Rs. 13.50.000/- to the respondent No. 1 on 26.4.1993." Then in para-3, Mr. Kulkarni has stated as follows: "The applicant submits that in consideration of the applicant Bank having at the request of respondents 1 to 5, agreed to grant F.B.P. facility to the respondent No. 1, represented by its Proprietrix Mrs. Usha S. Jain. The respondents 2 to 5 in the above case have executed in favour of the applicant bank and delivered a Bond of Guarantee dated 8.5.1993 and thereby guaranteed in their respective capacities the due repayment to the applicant of all the advances and interest accrued thereunder which might be payable from time-to-time by the respondent No. 1." It is pertinent to note that in this Affidavit, there is no categorical averment that respondent No. 5 signed in his presence on the Guarantee Deed or that he. was identifying the said signature of defendant No. 5.
He has neither said that he put his signature on the Guarantee Deed or that the Guarantee deed has been countersigned by him as the Branch Manager.
8. Now, let us go through the deposition of Mr. Kulkarni, recorded before DRT. In the examination in chief of Mr. Kulkarni, his evidence is that, "All the documents were executed in my presence by the defendants". This is the only general statement made by Mr. Kulkarni with respect to the alleged execution by all the defendants. He has not mentioned which Documents were executed before him nor has he stated that he has countersigned those documents or that the signature appearing on those documents under the seal of the Bank as his. He has also not identified the signatures of defendant No. 5.
He has stated: "I have not signed any of the documents produced". Now, this goes against his averment or claim that documents were executed in his presence, because the documents on the left hand side bear the signature of the Branch Manager and if he is saying categorically that he has not signed any document produced then one wonders as to how can he say that the documents were executed in his presence.
9. Thus, it cannot be said that evidence of the Branch Manager Mr.
Kulkarni is convincing to enable the Court to come to the conclusion that the security documents were executed in his presence. It is settled position of law that if the deposition of the eye-witness is found to be reliable and believable, then that has to be given of the eye-witness is found to be reliable and believable, then that has to be given credence and that has to be accepted even though it is contrary to the medical evidence or the evidence of the expert. In the present case at hand, quality of the evidence of Mr. Kulkarni does not inspire any confidence, is mechanical without any particulars and insipid. On this background and when there is an evidence of the expert's witness namely, the handwriting expert that the disputed .signature and the admitted signature of defendant No. 5 did not tally, then discarding that evidence was erroneous. The learned Presiding Officer has precisely committed this error and has discarded the evidence of the handwriting expert when there was no other evidence found to be believable to come to the conclusion that defendant No. 5 was present, that he came to the Bank along with defendant Nos. 1 to 4 and put his signature on the Guarantee Deed in the presence of Mr. Kulkarni. The finding of the learned Presiding Officer, therefore, on this point is erroneous and has to be set aside.
10. There are also other circumstances, which point to the suspicuous nature of the claim of the Bank that defendant No. 5 put his signature as a guarantor on the Guarantee Deed. Right from the beginning, defendant No. 5 had come up with that defence and was repu-diating his signature. Time and again, he was saying that he had a Current Account No. 600 in the same Bank and that his signature in that Account might be produced but the Bank could not produce those documents saying that the documents were not available as the Account had become inoperative since long.
11. There is another error which the learned Presiding Officer committed. Section 73 of the Indian Evidence Act, 1872 gives power to the Court to make comparison of disputed and admitted signature for just conclusion, though as a Rule of prudence expert opinion can be obtained. In the present case at hand, the learned Presiding Officer sent the disputed and admitted signatures to the handwriting expert.
But he did not take upon himself the exercise of comparing the admitted and disputed signatures of defendant No. 5, which he was entitled to do as per the provisions of Section 73 of the Indian Evidence Act. I have seen both the signatures; admitted and disputed and, in my view, there is no resemblance between the same and the opinion given by the handwriting expert Mr. Aswathappa, given after a studied examination appears to be true. There is no reason to disbelieve it, more so, when there is no other evidence to corroborate the Bank's stance.
Appellant was cross-examined by the Bank's Advocate at length and there was nothing in the cross-examination to give dent to his version. There is no averment in the cross-examination which destroys this defence that it is not his signature which is appearing on the Guarantee deed.
Civil cases are decided on the basis of preponderance of evidence.
Considering the facts on record, it can be said with a reasonable decree of certainty that the case of the appellant that the signature appearing on the Guarantee Deed is not his, appears to be in all probability true. The learned PO, therefore, committed error in foisting liability on defendant No. 5, alongwith defendant Nos. 1 to 4, purely on the basis of his alleged signature on the Guarantee Deed, with the Bank has failed to prove as his. The appeal filed by defendant No. 5 will have to be allowed and the impugned Order will have to be set aside. Accordingly, following Order is passed.
Regular Appeal RA No. 37/2004, is allowed in terms of prayer Clause 6 of the Appeal Memo and the impugned Order dated 7.11.2003 in O. A. No.1248/1995, is hereby set aside to the extent that defendant No. 5 is made jointly and severally liable along with defendant Nos. 1 to 4, directing him to pay to the applicant Bank sum of Rs. 17,84,271/ with interest etc. Rest of the Order remains as it is with respect to defendant Nos. 1 to 4.
Regular Appeal RA 37/2004 is disposed of accordingly in the aforesaid terms.