Som Prakash Gupta vs Kotak Mahindra Bank Ltd. And Ors.

Ranjit Singh, J

The Tribunal below has allowed the O.A. filed by respondent Bank holding the appellant to recovery of a sum of Rs. 13,06,112/- with simple interest @ 11.01% p.a. from 11.7.2012 onward. The appellant is held liable to pay this amount jointly with respondent No. 2. Aggrieved against the same, the appellant has filed the present appeal. The appellant had filed this appeal without paying any Court fee. Appeal is also filed with delay of 73 days. An application has been filed seeking exemption from paying the Court fee and also for condoning the delay in filing the appeal.

Counsel for the appellant had earlier pleaded that the appellant was unable to pay the Court fee being an indigent person. The Counsel was accordingly given time to move appropriate application to plead this fact. Instead of moving such an application, none appeared on behalf of the appellant and the appeal was dismissed for non-prosecution on 19.8.2014. An application thereafter was filed for recall of this order and notice was issued on this application.

The appellant did not collect notice necessitating issuance of fresh notice to the respondents. In this manner, the appellant is still struggling to effect service on the respondent. On a few occasions the case had to be adjourned on the ground that only proof of despatch had been filed without showing proper proof of service. On 29.6.2015, ultimately it was noticed that service had been effected on respondent No. 1 Bank. Respondent No. 2, however, remained un-served. Despite service, none has put in appearance on behalf of the Bank.

Time was given to the Counsel for the appellant to file additional affidavit to justify the plea raised in the application for declaring the appellant as indigent person. The order dismissing the appeal ultimately was recalled on 21.10.2015 when notice was issued qua the application for declaring the appellant as an indigent person. Since the respondent Bank has failed to appear despite service of notice and respondent No. 2 is not traceable, there would not be any further need to await service on the said respondent

Considering the averments made in the application, which have gone un-rebutted, the prayer made in the application is allowed and the appellant is exempted from paying any Court fee being indigent person.

For the reasons mentioned in the application, the delay in filing the appeal is also condoned as Bank has not come forward to oppose this prayer.

That being the position, the appellant is entitled to be heard on merit in the appeal without satisfying the requirement of pre-deposit. Accordingly, the prayer made in the application seeking waiver of the requirement of pre-deposit is also allowed.

In this background, the Counsel for the appellant is heard on merit in this appeal.

This is a case where ICICI Bank had granted credit facility to respondent No. 2 for purchase of Eicher 11.10 vehicle on 24.5.2006. The appellant had stood as guarantor. ICICI Bank later assigned this debt to Kotak Mahindra Bank, respondent No. 1 in this appeal. The appellant appeared before the Tribunal below and had filed written statement pleading that he had not signed any loan document and the signatures appearing on the guarantee deed and other documents were forged. On the basis of these pleas, the Tribunal below considered the aspect of liability of the present appellant. The Bank had produced on record the document AW 1/3 A, which is deed of guarantee. The plea by the appellant was that he had not signed this guarantee deed. As per the appellant, this document was fabricated one.

The Tribunal below has noticed that Exhibit AW 1/3 contained signatures of the appellant. The appellant had signed on all the pages of guarantee. There were some blank spaces in the document but these were those part of the guarantee deed which were not applicable to the guarantee executed by the appellant. The Tribunal accordingly did not accept the plea of the appellant that the Bank had put signatures of the appellant on the blank form. This plea otherwise is also far-fetched. Who in the Bank would be interested in doing so? There was no reason on the part of the Bank official to forge a document. It is not even alleged that any person in the Bank was hostile, against the appellant to forge his signature. It is very difficult for anyone to ascertain and know address of an unknown guarantor who is alleged to have given this guarantee. The guarantor had signed at the bottom of the guarantee deed. The Bank had also produced copy of the Voter Identity Card issued in the name of the appellant by Election Commission of India. This was taken to prove the identity of the appellant. The Bank had also issued recall notice at the same very address, which the appellant claims not to have received. The Bank had produced the postal receipt to show receipt of this recall notice, which was sent by Registered post. On the basis of this evidence, the Tribunal has not accepted the contention of the appellant that the guarantee deed was not containing his signatures. As already observed, no reasons are forthcoming as to why the officials of the Bank would forge any document. It is also not clear as to how would the Bank official do so and choose the unknown appellant for this purpose.

The finding returned by the Tribunal below is based on the evidence and material on record. The submission by the Counsel for the appellant is that the Tribunal below ought to have sent the guarantee deed for examination of his signatures once he had disputed his signatures appearing on the guarantee deed. The Tribunal was under no obligation to do so. Request, if any, in this regard ought to have been made by the appellant. It was for the appellant to prove that the signatures appearing on the guarantee deed were forged and were not his signatures as the appellant was asserting this fact. There was no responsibility on the part of the Tribunal to take any action to get the guarantee deed examined. It was for the appellant to lead relevant evidence in support of this plea. Once the appellant has failed to lead this evidence, he cannot now lay a blame on the Tribunal on any count. There is no merit in any of the pleas raised by the appellant. The present appeal is accordingly dismissed in limine.