R.S.A. No.2659 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2659 of 2010 Date of Decision:10.11.2010 Punjab & Sind Bank .....Appellant Vs. Balraj Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. Rohit Sapra, Advocate for the appellant. **** RAKESH KUMAR GARG, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby its suit for recovery against respondent No.3 (defendant No.3/ guarantor) was dismissed. As per the averments, respondents No.1 and 2 availed a loan facility from the appellant- bank on execution of documents in favour of the appellant- Bank. It is the further case of the appellant that defendant No.3/ respondent No.3 stood guarantor. Defendants No.1 and 2 did not adhere to the financial discipline of the Bank and failed to pay the instalments of loan as per agreement and defaulted in the payment. Hence, the appellant- Bank was forced to file the instant suit. It is the further case of the appellant that the officials of the appellant- Bank visited the village of the defendants and it came to their notice that the respondents have committed a fraud with the Bank and have forged and fabricated the documents showing them the R.S.A. No.2659 of 2010 -2- owners of the agricultural land but actually they were not owners of the land. A complaint with the police was also filed in this regard, on which CJM, Hisar vide his order dated 6.8.2004 directed the police to register a criminal case. Hence, the cause of action had arisen to the appellant to file the instant suit. Upon notice, defendants/ respondents No.1 and 2 did not appear and were proceeded against ex parte. Respondent No.3 appeared and filed written statement raising preliminary objections. On merits, it was submitted that respondent No.3 neither offered nor agreed to become guarantor of defendants No.1 and 2. In fact, the officials of the Bank were aware that defendants No.1 and 2 did not own land allegedly mortgaged by them with the Bank. All other averments were denied and dismissal of the suit was prayed. No replication was filed by the plaintiff- appellant to controvert the submissions made in the written statement of respondent No.3. On the basis of pleadings, the following issues were framed:- 1. Whether plaintiff bank is entitled for recovery of Rs.75,511/- alongwith interest, as prayed for?OPP 2. Whether the suit of plaintiff is not maintainable in its present form?OPD 3. Whether the plaintiff have no cause of action or locus- standi to file present suit?OPD 4. Whether the suit of plaintiff is not properly valued for the purpose of court fees and jurisdiction?OPD 5. Whether the civil court at Hisar had got no jurisdiction to try and entertain present suit?OPD R.S.A. No.2659 of 2010 -3- 6. Whether the plaintiff has not come to the court with clean hands, if so, to what effect?OPD 7. Whether suit of plaintiff is time barred?OPD 8. Whether the suit is bad for non-compliance of provisions of Order 7 Rule 1(J) of CPC?OPD 9. Relief. The trial Court after considering the evidence adduced by the parties and after hearing learned counsel for the parties decided Issues No.1 to 3 in favour of the appellant- Bank whereas Issues No.4 to 8 were decided against defendants being not pressed and suit was decreed with costs only against respondents No.1 and 2 and against dealing officials of the Bank and the suit was ordered to be dismissed against respondent No.3. The operative part of the decree passed by the trial Court reads as follows:- “This suit is coming for final disposal before me (R.P.Goyal, HCS, Addl. Civil Judge (Sr. Divn.), Hissar in the presence of Shri S.K. Mittal, Advocate for the plaintiff. Shri P.K.Aggarwal, Advocate for the defendant No.3, defendant No.1 and 2 already exparte. It is proved that the suit of plaintiff succeeds and same is hereby decreed with costs against the defendant No.1 and 2 and against dealing officials of the bank as referred to above and the suit of the plaintiff bank is dismissed against defendant No.3. A decree for recovery of Rs.75,511/- along with interest @ 13% per annum with half yearly rests from the date of filing of suit i.e. 19.08.2004 till its actual realization is hereby passed against defendants No.1 & 2 and both the officials of the bank. R.S.A. No.2659 of 2010 -4- The defendants Nos. 1 & 2 as well as dealing officials of bank as referred to above are jointly or severally liable to pay the decretal amount. A copy of this judgment be sent to Regional Manager, Punjab and Sind Bank for taking action against the dealing officials and for registering a criminal case against them under intimation to this court.” Feeling aggrieved with the aforesaid judgment and decree of the trial Court, the plaintiff- Bank filed an appeal submitting that respondent No.3 cannot be absolved from his liability to pay the amount in question being guarantor of defendants No.1 and 2. The appellant- Bank also raised a grievance whereby the trial Court has held that the appellant- Bank was entitled to recover the decretal amount from its dealing officials and against the directions for getting a criminal case registered against them. The lower appellate court vide impugned judgment and decree dated 22.4.2010 accepted the appeal of the plaintiff- Bank partly holding that no recovery could be made from the dealing officials of the appellant- Bank. However, remaining decree of the trial Court was kept intact upholding the dismissal of the suit against respondent No.3 and for getting a criminal case registered against its employees. Still not satisfied, the plaintiff- Bank has approached this Court by way of instant appeal, raising the following two points at the initial stage:- “1. The suit has been wrongly dismissed against respondent No.3. 2. The trial Court could not give a direction to file a criminal case against the dealing officials.” R.S.A. No.2659 of 2010 -5- However, on 25.10.2010, learned counsel for the appellant, on instructions from the appellant- Bank stated that the appellant was not pressing any relief against the findings of the trial Court as upheld by the lower appellate Court for taking action against the dealing officials and for registering a criminal case against them. On the basis of the aforesaid statement made by learned counsel appearing on behalf of the appellant, the appeal qua the aforesaid relief was dismissed. Now the only point for consideration of this Court is whether the judgment and decrees of the Courts below whereby suit for recovery against respondent No.3 (the alleged guarantor) has been dismissed in accordance with law or not. Challenging the findings of the Courts below in this regard, learned counsel for the appellant has vehemently argued that the findings of Courts below to the extent that the appellant- Bank was not entitled to recover the suit amount from respondent No.3 are erroneous and against the overwhelming evidence produced on record. Learned counsel appearing on behalf of the appellant has drawn attention of this Court to the documents Ex.P7 and Ex.P20, i.e., the documents of guarantee executed by respondent No.3 in favour of the appellant for securing the loan amount. Elaborating the arguments, learned counsel for the appellant has vehemently argued that the aforesaid documents have been proved to be executed by respondent No.3 in the ordinary course of business of the appellant- Bank and moreover, respondentNo.3 has not denied his signatures on the aforesaid documents and thus respondent No.3 cannot deny his liability to make the payment of loan amount and therefore, the judgment and decrees of the Courts below to the extent of dismissing the case against respondent No.3 is R.S.A. No.2659 of 2010 -6- liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the judgment and decrees of the Courts below suffers from perversity and the following substantial question of law arises in this appeal: Whether in the facts and circumstances of the case, the impugned judgment & decrees suffer from perversity? I have heard the learned counsel for the appellant and perused the impugned judgment and decrees and the documents placed on record of this appeal and as referred by the learned counsel for the appellant. It is useful to mention at this stage that while recording findings against the appellant- Bank, the Courts below have found that no doubt, the respondent No.3 had not denied his signatures on the loan documents referred by the appellant- Bank, but appellant- Bank has failed to prove the due execution of the documents. Admittedly, the documents relied upon by the Bank have not been proved in accordance with law. Even respondent No.3 was not confronted with the aforesaid documents when he appeared in the witness box. It may also be noticed that respondent No.3 has taken a specific stand in the written statement denying that he stood as a guarantor of the loan amount advanced to defendants No.1 and 2. The aforesaid assertion of the respondent No.3 was not controverted by the appellant by filing a replication. Not only this, on the basis of the facts established on record, the Courts below have arrived to a conclusion that respondent No.3 used to visit the plaintiff- Bank and officials of the Bank took advantage of his innocence and illiteracy and succeeded in getting his signatures on the documents of guarantee. From the aforesaid discussion, it cannot be stated that the R.S.A. No.2659 of 2010 -7- findings are based upon inadmissible evidence terming the impugned judgment and decrees as perverse. Neither any material evidence which has been ignored could be pointed out. Thus, no interference of this Court is warranted in exercise of its powers under Section 100 CPC of this Court. No substantial question of law arises. Dismissed. November 10, 2010 ( RAKESH KUMAR GARG ) renu JUDGE