THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1490 of 1983 (Dated: 17-11-2009) Between: The Vysya Bank Limited, Bhimavaram Represented by the Regional Manager, Siddiamber Bazar, Hyderabad. …Appellant/ Plaintiff A n d Sri B.Kumara Gowd S/o Jagannadha Gowd, Occ:Business, China Maseed Street, Bhimavaram and others …Respondents/ Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1490 of 1983 JUDGMENT: This appeal is directed against the judgment and decree dated 19.10.1982 in O.S.No.119 of 1980 on the file of the Subordinate Judge, Bhimavaram, wherein the suit filed by the appellant herein for recovery of a sum of Rs.2,70,473.10 ps. was decreed as against defendant No.1- 1st respondent herein and was dismissed against defendant No.2- 2nd respondent herein. 2. Arguments of the learned counsel for the appellant-Bank are heard. None appeared for the respondents. Perused the records. 3. The appellant-bank filed the suit against the respondents herein contending that the 1st defendant, who was an arrack contractor sought a bank guarantee of Rs.7,04,997/- and a loan of Rs.1,10,000/- on 8.10.1976 and the guarantee was to be furnished to the Excise Department, Eluru for the instalments payable by the 1st defendant to the said department. The 1st defendant executed a counter guarantee on the same day in favour of the plaintiff promising to reimburse the money with interest at 17½ % per annum. It is further averred by the plaintiff that the 2nd defendant stood as surety for the 1st defendant and both the defendants executed a demand promissory note dated 8.10.1976 in favour of the plaintiff-bank for a sum of Rs.7,04,997/- and also executed a letter of guarantee on the same day. It is further pleaded that the plaintiff gave a guarantee bond to the Excise Department and made payments to the Department on behalf of 1st defendant and also advanced loan of Rs.1,01,000/- to the 1st defendant. The plaintiff complains that in spite of several demands, the defendants failed to pay the amount due as per the accounts and therefore, the plaintiff got issued a registered notice dated 24.9.1979. But the defendants did not respond. 4. The 1st defendant remained ex parte. 5. The 2nd defendant filed a written statement denying the suit transaction and contending that he had no acquaintance with the 1st defendant and he never stood guarantee for 1st defendant’s loan and he did not execute any promissory note or any letter of guarantee in plaintiff’s favour. Defendant No.2, therefore, denied his liability for the suit amount. 6. On the strength of the pleadings, the trial Court framed the following issues:- 1. Whether the plaintiff is a company incorporated under Indian Companies Act? 2. Whether the Branch Manager has any authority to sign in the plaint? 3. Whether the 2nd defendant executed pronote dated 8.10.1976 along with the 1st defendant for Rs.7,04,997/-? 4. Whether the 2nd defendant executed a guarantee letter in favour of plaintiff along with 1st defendant? 5. Whether plaintiff paid any amounts to Excise Department o behalf of 1st defendant? 6. Whether the account copies filed along with plaint are true? 7. Whether 2nd defendant executed another pronote for Rs.1,02,000/- in favour of the plaintiff on 8.10.1976 ? 8. Whether the 2nd defendant executed another guarantee letter dated 8.10.1976? 9. Whether the suit is not proper? 10. Whether the 2nd defendant is jointly and severally liable? 11. Whether 2nd defendant is an agriculturist and entitled to the benefits of Act IV of 1938 ? 12. Whether the plaintiff is entitled for future interest on contract rate? 13. To what relief? 7. During trial, Pw.1 was examined and Exs.A.1 to A.27 were marked on behalf of the plaintiff. The 2nd defendant was examined as Dw.1, but no documents were marked. Exs.X-1 to X-23 were also marked. 8. On a consideration of the evidence available on record, the trial Court decreed the suit as against the 1st defendant, but dismissed the same against the 2nd defendant by an elaborate judgment, dated 19.10.1982. 9. Aggrieved by the same, the plaintiff bank filed the present appeal. 10. The point, which arises for consideration in the present appeal is whether the findings of the trial Court that the signatures in the suit documents Exs.A-3, A-4, A-15 and A-16 do not belong to 2nd defendant is liable to be set aside and whether the dismissal of the suit as against the 2nd defendant calls for any interference? 11. According to the plaintiff, it was the defendant No.1 who approached the bank seeking bank guarantee and also a loan in respect of the amount due by him to the Excise Department and that the 1st defendant executed two pro-notes Exs.A-3 and A-4 and also two letters of guarantee under Exs.A-15 and A-16 along with the 2nd defendant and stood as guarantor. The amount covered by Exs.A-3 and A-4 was not paid to the 1st defendant, but said to have been paid to the Excise Department on behalf of the 1st defendant. The 2nd defendant totally denies the suit transactions and also execution of the suit document along with the 1st defendant and contends that he had no acquaintance with the 1st defendant at all and he never stood guarantee on behalf of the 1st defendant. The burden, therefore, squarely lies upon the plaintiff to establish that the defendant No.2 stood guarantee for the liability of 1st defendant and defendant No.2 also jointly executed the pro-notes Exs. A- 3 and A-4 and letters of guarantee Exs.A-15 and A-16 along with the 1st defendant. 12. Though the suit was filed in the year 1980, the letters of guarantee Exs.A.15 and A.16 were filed into Court on 26.2.1982 and they were marked during the evidence of Pw.1 when he was recalled for 2nd time subsequent to closure of the evidence of Dw.1 on 23.2.1982. Dw.1 was not confronted with Exs.A-15 and A-16 during his evidence. Ex.A-13 is stated to be an authorization given by the 1st defendant in favour of 2nd defendant to operate the account on his behalf and Ex.A.14 is said to be card containing the specimen signatures of defendant No.2. Even the said documents were not filed along with the suit when the plaint was presented on 08.10.1979. It was only after Dw.1’s evidence was closed and Pw.1 was recalled on 26.2.1982, Exs.A.13 and A-14 came to be filed and the plaint is also silent about the said documents. Whereas, as per the averments in the plaint, defendant No.2 was not a co-debtor or co-obligant and he is said to have executed Exs.A-3 and A- 4 by way of collateral security for the amount guaranteed by the plaintiff on behalf of the 1st defendant. The letters of guarantee-Exs.A.15 and A.16 are said to have been executed on the same day of Exs.A.3 and A.4, i.e., 08.10.1976. But, Exs.A-15 and A-16 do not bear any date and they are only printed formats containing some signatures without even mentioning the amounts or referring to the transactions contained in Exs.A-3 and A-4. In other words, Exs.A-15 and A-16 do not show that they were executed in connection with the transactions under Exs.A-3 and A-4. It was only the 1st defendant, who applied for loan but not the 2nd defendant and the loan applications Exs.A-1 and A-2 were also signed by the 1st defendant. 13. As rightly observed by the trial Court, the callous approach and indifferent attitude in obtaining necessary documents by the plaintiff is evident from the documents themselves, some of which do not contain the signatures, some of which do not contain dates, and some of which do not contain even the amounts nor bear any cross reference to one another. Even the name of the defendant No.2 is found in Ex.A-3 in a different ink by a different hand. The name of defendant No.2’s father is also not noted in Ex.A-3, though the name of defendant No.1’s father is noted. The address column contained in Ex.A.3 is also not filled up. Even the guarantee bond, which is said to have been furnished by the plaintiff to the department is not produced before the court. From the admission made by Pw.1 in the cross examination, it was clear that defendant No.2 had no prior acquaintance with defendant No.1 and in fact, Pw.1 was having prior acquaintance with defendant No.2. The accounts under Exs.A.9 and A10 are mentioned in the name of defendant No.1 and others and they do not bear the name of defendant No.2. Pw.1 categorically admitted that except the signatures of defendant No.2 in the pro- note, there is no other evidence either with the bank or Excise Department to show that he has got anything to do with the arrack business of 1st defendant. The trial Court has elaborately discussed the evidence of Pw.1 and the various admissions made by him in the cross examination before arriving at the conclusion that there was something fishy in implicating the 2nd defendant. The testimony of Pw.1 was also found to be inconsistent and contradictory when it came to fastening liability on the 2nd defendant. At the instance of the plaintiff, the Excise Authorities produced Exs.X-1 and X-22, which contained the admitted signatures of defendant No.2, for the purpose of comparison and they pertain to some other transaction unconnected with the suit transaction. The plaintiff filed I.A.No.324 of 1982 for sending the disputed documents to handwriting expert for comparison. The said petition was dismissed. The plaintiff filed a revision in C.R.P.No.2637 of 1982 before this Court and the said C.R.P was also dismissed. In the order dated 16.8.1982 in C.R.P.No.2637 of 1982, this Court observed as follows: “The Presiding Officer can also scrutinize and compare the disputed signatures of the petitioner with the admitted signatures”. In pursuance of the same, the learned Subordinate Judge scrutinized the signatures contained in disputed documents Exs.A.3, A-4, A-14 to A-16 with the admitted signatures of the 1st defendant contained in Ex.X.1 to X.23 and recorded a finding that the signatures do not tally. 14. On a reappraisal of the evidence on record, this Court is of the view that the finding of the trial court that the plaintiff failed to establish the truth and genuineness of Ex.A-3, A-4, A-15 and A-16 insofar as 2nd defendant is concerned, does not call for any interference. 15. The various questions raised and the improbabilities pointed out by the trial Court in the impugned judgment remained unanswered by the appellant-plaintiff. In the absence of proof of execution of suit pro-notes Exs.A-3 and A-4 by the 2nd defendant and Exs.A-15 and A-16 letters of guarantee, which documents do not bear any connection with Ex.A-3 and A- 4, no liability can be fastened on the 2nd defendant as a guarantor. The trial Court, has, therefore, rightly exonerated the 2nd defendant from the liability of payment of the suit amount. The said finding, which is recorded on due appreciation of the evidence available on record, and on detailed consideration and elaborate reasoning does not call for any interference by this Court. 16. In the result, the appeal is dismissed confirming the judgment and decree dated 19.10.1982 in O.S.No.119 of 1980 on the file of the Subordinate Judge, Bhimavaram. No costs. _______________________ G.V.SEETHAPATHY, J Dt.17-11-2009 RAR THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY A.S.No.1490 of 1983 (Dated: 17-11-2009)