THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON’BLE SRI JUSTICE K.G.SHANKAR Writ Petition No.110 of 2011 ORDER (Per Sri Justice Ghulam Mohammed) This writ petition is filed seeking a writ of mandamus to declare the common order dated 23.12.2010, passed in I.A.Nos.484, 719 and 720 of 2010 in S.A.No.76 of 2010 passed by the first respondent-Debts Recovery Tribunal, Hyderabad (for short ‘the Tribunal’), as illegal and arbitrary. 2. The petitioner filed S.A.No.76 of 2010 seeking to declare the sale notice dated 26.02.2010, issued by the second respondent Bank, as illegal and violative of Sections 13(2) and 13(4) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’). In the said appeal, she filed I.A.Nos.484, 719 and 720 of 2010 seeking to summon the documents, original documents and to refer them, as listed in those petitions, along with the specimen signatures of the petitioner to the Handwriting Expert for opinion. The second respondent Bank filed counters. The Tribunal holding that the petitioner herself had executed the loan documents filed by the second respondent Bank, as such, there is no necessity to forward those documents to the Handwriting Expert, dismissed the said I.As. Aggrieved by the same, the petitioner filed the present writ petition. 3. The second respondent Bank filed counter affidavit stating that the writ petition is not maintainable as the petitioner has an alternative remedy of appeal under Section 18 of the Act before the appellate Tribunal. It is stated that the petitioner being the Proprietor of M/s. Pujitha Bio Pharma, Mangalam, Tirupathi, obtained a term loan of Rs.13.00 lakhs and OCC limit of Rs.5.50 lakhs from the second respondent by mortgaging the property in question and she executed necessary loan documents. Her husband stood as guarantor for the said loan and he executed an agreement of guarantee. As the petitioner failed to repay the loan amounts, the Bank took measures under the Act by issuing the demand notice and possession notices dated 17.12.2009 and 25.02.2010 respectively, and subsequently, issued the sale notice dated 26.02.2010. It is further stated that the petitioner having availed the loan facility executed the loan documents by depositing the title deeds of the property in question and as such, the allegation of forgery of those documents by the Bank is untenable. It is also stated that the Tribunal compared the signatures on the documents with the admitted signatures of the petitioner and considering all the aspects, dismissed the I.As. Hence, the writ petition is liable to be dismissed. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the second respondent Bank. 5. Learned counsel for the petitioner contended that the petitioner never approached the second respondent for loan facilities and never executed any document nor created any mortgage in favour of the Bank and as such, all the documents produced by it are forged. He contended that the Tribunal ought not to have undertaken the exercise under Section 73 of the Evidence Act, 1872 by comparing signatures without the assistance of any expert. He further contended that the Tribunal has not given any opportunity to the petitioner to prove the forgery of the documents in question. As such, the Tribunal was not justified in dismissing those I.As. In support of his contention, he relied upon the decision of the Apex Court in O. BHARATHAN v. K. SUDHAKARAN[1] wherein it was held as under: “Section 73 of the Evidence Act, 1872-Court should not itself compare the dispute signatures without assistance of any expert when the signatures with which the disputed signatures are to be compared are themselves not the admitted signatures’. Learned counsel also relied upon another decision in KESSARBAI v. JETHABHAI JIVAN[2] wherein it was held as under: “Genuineness of a signature disputed-Mere comparison of admitted signatures without expert advise or microscopic examination is dangerous’. With regard to the jurisdiction, the learned counsel has relied upon the decision of this Court in MARIAMMA ROY v. INDIAN BANK[3] wherein it was held as under: “We have heard the learned counsel for the parties and examined the impugned order as well as the other materials on record. After examining the impugned order as well as the materials on record, we are of the view that the order of the High Court cannot be sustained. Before the High Court, the appellant sought to contend that before passing the impugned order, the appellant was not at all issued with any notice. The High Court, however, without going into the question whether the notice was at all served on the appellant or not, dismissed the writ petition only on the ground that the appellant has got a right of appeal against the impugned order under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In our view, the High Court was not justified in passing the impugned order on the aforesaid ground. It is well settled that even if an alternative remedy was available to an aggrieved party against a particular order, but if it was open to such party to move a writ application and the Court has the power to entertain the same if it finds that while passing the order there has been a violation of the principles of natural justice’. 6. Learned Standing Counsel for the second respondent Bank contended that as the petitioner has a remedy of appeal under Section 18 of the Act against the common order impugned, the writ petition under Article 226 of the Constitution of India is not maintainable. In support of his contention, he relied on the decision of the apex Court in KANAIYALAL LALCHAND SACHDEV v. STATE OF MAHARASHTRA[4] wherein it was held as under: “In the instant case, apart from the fact that admittedly certain disputed questions of fact viz., non-receipt of notice under Section 13(2) of the Act, non-communication of the order of the Chief Judicial Magistrate, etc., are involved, an efficacious statutory remedy of appeal under Section 17 of the Act was available to the appellants, who ultimately availed of the same. Therefore, having regard to the facts obtaining in the case, the High Court was fully justified in declining to exercise its jurisdiction under Articles 226 and 227 of the Constitution”. He submitted that under Section 37 of the Act, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the Act, 1993) applies. He further contended that under Section 22 of the Act, 1993, the Debts Recovery Tribunal has the powers of a Civil Court and as such, the Tribunal is justified in dismissing the I.As., by the common order impugned. He relied upon a decision reported in MARDIA CHEMICALS v. UNION OF INDIA[5] wherein it was held as under; “It has also been submitted that an appeal is entertainable before the Debts Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub-section (4) of Section 13, it is submitted by Mr Salve, one of the counsel for the respondents that there would be no bar to approach the civil Court. Therefore, it cannot be said that no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of Section 34 shows that the jurisdiction of the civil Court is barred in respect of matters which a Debts Recovery Tribunal or an appellate Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any power conferred under this Act. That is to say, the prohibition covers even matters which can be taken cognizance of by the Debts Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil Court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil Court thus applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13. However, to a very limited extent jurisdiction of the civil Court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or his claim may be so absured and untenable which may not require any probe whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil Court in the cases of English mortgages’. Arguments have been advanced as to how far principles of lender’s liability are applicable. Whatever be the position, however, it cannot be denied that the financial institutions, namely the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their part of the obligation as a party to the contract. They cannot be free from it. Irrespective of the fact as to whatever may have been held in decisions of some American Courts, in view of the facts and circumstances and the terms of the contract and other details relating to those matters, that may or may not strictly apply, nonetheless, even in absence of any such decisions or legislation, it is incumbent upon such financial institutions to act fairly and in good faith complying with their part of obligations under the contract. This is also the basic principle of the concept of lender’s liability. It cannot be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely, borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence deficiencies on the part of the banks and financial institutions’. Learned counsel also contended that the original documents of the petitioner would not have come to the possession of the second respondent unless she mortgages them and that the husband of the petitioner being the guarantor has handed over the documents to the Bank pertaining to the loan transaction. 7. It is not in dispute that the original title deeds in respect of the property in question are in the name of the petitioner and they are in the custody of the second respondent Bank since 31.05.2002. The petitioner has never taken the plea as regards possession of the original documents by the second respondent Bank since 31.05.2002. The plea of forgery as was taken by the petitioner in the I.As., has not been taken in the appeal filed by her except denying the availment of credit facility. The petitioner having received the aforesaid demand and possession notices issued by the second respondent Bank, remained silent and she neither questioned the said notices nor the validity of the documents in regard to the property mentioned in the possession notice. Filing the I.As., for summoning the documents and sending the same along with her specimen signatures to the Handwriting expert for comparison and opinion after receipt of the sale notice and on dismissing those I.As., by the Tribunal she approached this Court by way of present writ petition. This shows the intention of the petitioner to drag on the sale proceedings. 8. The second respondent stated that the applicant created mortgage over the schedule property by depositing the original registered sale deed dated 16.10.1998, and the same was confirmed by her vide letter dated 31.05.2002 and her husband stood as guarantor. It also stated that her husband sought time for regularizing the loan account vide letter dated 20.02.2008. Later, the loan accounts have been classified as non-performing asset (NPA) by 30.04.2009. When the account is classified as NPA, Section 13(3-A) of the Act provides for the borrower to make a representation to the secured creditor, who is required to consider the same and must communicate the same to the borrower. Nowhere she stated about her making representation to the secured creditor. The Tribunal in the order impugned observed that the photograph affixed on the first page of the loan application is of the petitioner and the same has not been disputed by her. 9. The petitioner obtained the loan amount, deposited the original title deeds in 2002 and made correspondence to the Bank for regularization of loan account by way of letters but she did not question the validity of the documents in question and now, after a gap of eight years from 2002, during which year the petitioner obtained loan, she raised the plea of forgery of the documents by the Bank. However, this is a factual aspect, which cannot be decided by this Court under Article 226 of the Constitution of India. That apart, the petitioner has an alternative remedy of appeal against the order impugned. 10. For the foregoing reasons, the Writ Petition is dismissed. No costs. _____________________ GHULAM MOHAMMED, J _______________ K.G.SHANKAR, J Date:07.04.2011 sj [1] (1996)2 SCC 704 [2] AIR 1928 PRIVY COUNCIL 277 [3] IV (2008) BC336 (SC) [4] (2011) 2 SCC 782 [5] (2004) 4 SCC 311