1. Being aggrieved by the judgment and decree dated 26th August 1996 passed by 6th Joint Civil Judge, Senior Division, Nagpur dismissing the suit of appellant-Bank as against respondents no. 4 and 5, appellant-Bank has filed the present appeal. Appeal is filed also against the refusal of the trial Court to award agreed rate of interest on the outstanding amount. Parties shall hereinafter be referred to as per their original status in the suit.
2. Plaintiff-Bank filed suit against the defendants for recovery of Rs. 7,85,655.50. It was averred that various loans as described in paragraphs 3 and 4 of the plaint were granted and disbursed to defendants no. 1 to 3 and defendants no. 4 and 5 stood guarantee for borrowers (defendants 1 to 3). Since the defendants failed to pay the loan amount, a call notice was issued to them to pay off the outstandings. Since inspite of notice defendants did not settle the dues, plaintiff-Bank filed the suit.
3. Defendants no. 1 to 3 by their Written Statement, denied the claim of plaintiff-Bank. They alleged that it was the plaintiff-Bank which was responsible for closure of their unit. Defendants no. 4 and 5 denied their liability. They denied having stood guarantor for defendants no. 1 to 3.
4. Learned trial Court on appreciation of oral and documentary evidence decreed the suit of plaintiff-Bank as against defendants no. 1 to 3 only. It has been held that the plaintiff Bank failed to prove that defendants no. 4 and 5 stood guarantee for borrowers and consequently, suit has been dismissed against those defendants. Learned trial Court has ordered that the principal amount of Rs. 3,90,000/- shall carry future interest at the rate of 6% per annum from the date of suit till its realisation.
5. Heard learned counsel for the plaintiff-Bank. Learned trial Court observed that when defendants no. 4 and 5 had denied their signatures on the loan papers, it was the duty of the Bank to call for report of the hand-writing expert in order to prove the signatures of defendants no. 4 and 5. Request made on behalf of the Bank to tally the signatures of defendants no. 4 and 5 on the Vakalatnama filed on their behalf, was declined by the trial Court on the premise that the Court was not hand-writing expert.
6. Plaintiff-Bank examined Kashinath Patankar who proved deeds of guarantee (exhibit 72, 90 and 98) executed by defendants no. 4 and 5 on various dates. He deposed that contents of deeds of guarantee were read over and explained to defendants no. 4 and 5 by him and they admitted the contents to be true. In his cross-examination this witness is consistent with his evidence in examination-in-chief. He has denied all adverse allegations and maintained that defendants no. 4 and 5 stood guarantor for borrowers. Defendant no. 4 examined himself on oath and denied the averment of the plaintiff-Bank that he was one of the guarantors to loan transactions. He denied his signatures on the guarantee forms. Defendant no.5 also examined himself and he has also denied that he stood guarantor for borrowers/ defendants no. 1 to 3. Both these witnesses have maintained their denial in the cross-examination.
7. Explanation to Section 47 of the Evidence Act reads that a person is said to be acquainted with the handwriting of another person when he has seen that person write or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or when in ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. In D. Pandi v. Dhanalakshmi Bank Limited reported in AIR 2001 Madras 243, it has been held that where the evidence of the Bank Manager as to the presence of defendant-guarantor at the time of sanctioning of loan is probable and reliable and where defendant has not examined anyone to corroborate his claim except ipse dixit of his oral evidence, the order holding defendant liable for suit claim was proper. In the present case, the Bank has examined the officer concerned who has deposed that the defendants/guarantors after understanding the documents of guarantee had signed the same in his presence. The evidence on behalf of the Bank is probable and reliable.
8. Learned counsel for the plaintiff-Bank has relied on Girija Prasad v. Sardar Labh Singh reported in AIR 1977 Patna 241 wherein it is observed with reference to Section 47 of the Evidence Act that the creditor who himself had seen the debtor writing the disputed signatures on the credit memos was held a person who was acquainted with the hand- writing and it may be proved without subjecting it to expert opinion. The trial Court has heavily come on the Bank's failure to examine hand-writing expert. It is true that in order to find out the genuineness of the signature, it is but proper for the Court to get the opinion of the expert. However, I am of the view that Section 73 of the Evidence Act enables the Court to compare the disputed signature with the other admitted or proved signatures. No doubt, the Court can also direct the concerned person in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. In the present case the trial Court should not have hesitated to compare the signatures of defendants-guarantors on Vakalatnama, Written Statement etc. with the documents of guarantee.
9. Be that as it may, plaintiff is a nationalised Bank. There are no malafides alleged by defendant no. 4 or defendant no. 5 against any of the Bank officers. A definite procedure has to be followed by a nationalised bank while granting and disbursing loan amount to its borrower and in a given case why its officers should allow creation of false signatures of defendants no. 4 and 5 as guarantors, is not at all explained muchless satisfactorily. Loan cases, before they are sanctioned, see many hands and they are not dealt with in a proprietory manner. It is not a case of defendants no. 4 and 5 that undue favouritism was done to borrowers and their signatures were put on the documents concerned in a concocted manner. Viewed from any angle, therefore, trial Court's finding exonerating defendants no. 4 and 5 as guarantors cannot be sustained and will have to be set aside. Consequently, it will have to be held that defendants no. 4 and 5 as guarantors are jointly and severally to pay decretal amount along with defendants no.1 and 2 to the plaintiff-Bank.
10. Learned trial Court has awarded future interest at the rate of 6% per annum and that too on the principal amount. There is no reason assigned by it as to why it has deviated from the agreed terms and conditions arrived at by and between the parties under the loan agreement. In the opinion of this Court, the trial Court has erroneously adjudged the "principal sum". In Central Bank of India v. Ravindra and ors reported in AIR 2001 SC 3095, the Apex Court has held that while decreeing a suit if the decree be for payment of money, the Court would adjudge the principal sum on the date of the suit. In other words, the principal sum adjudged would be the sum actually loaned plus the amount of interest on periodical rests which according to the contract between the parties or the established banking practice has stood capitalised. Now, turning to the question as to what extent the interest should be awarded on the principal sum adjudged on the date of suit, the Apex Court in Central Bank's case (supra) has held that Section 34 of the Code of Civil Procedure is general in its application to all money suits and award of interest pendente lite and post-decree is discretionary with the Court as it is essentially governed by Section 34 dehors the contract between the parties. In a given case if the Court finds that in the principal sum adjudged on the date of the suit the component of interest is disproportionate with the component of the principal sum actually advanced, the Court may exercise its discretion in awarding interest pendent lite and post-decree interest at a lower rate or may even decline awarding such interest. However, the discretion shall be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner. Loans were advanced long back in the year 1987 and looking to the plea of the borrowers that their Project failed coupled with the principal sum actually advanced, in my opinion, award of interest at 12% per annum from the date of filing of suit till realization would subserve the ends of justice.
11. In the result, impugned judgment and order dated 26.8.1996 passed by the 6th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 266 of 1990 is modified thus :
All the respondents/defendants shall jointly and severally pay a sum of Rs. 7,85,655.50 to the appellant/ plaintiff Bank together with interest thereon at the rate of 12% per annum from the date of suit till its realisation. Operative part of the judgment of the trial Court in clauses (iii) to (viii) is maintained with modification that the same would be effective against respondents/defendants no. 4 and 5 also.
Appeal is allowed partly in the above terms with proportionate costs.