IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 AS.No. 32 of 1999(C) -------------------- OS.15/1998 of PRINCIPAL SUB COURT,ALAPPUZHA .................... APPELLANT/PLAINTIFF: ----------------- INDIAN BANK (FORMER BANK OF THANJAVUR LTD.), ALAPPUZHA, REPRESENTED BY ITS MANAGER. BY ADV. SRI.S.EASWARAN RESPONDENTS/DFENDANTS: -----------------[-- 1. JOHN K. POTHEN, CHANDRAMANGALAMHOUSE, KAITHAVANA, ALAPPUZHA. 2. M.K. MOHAN, MOORTHALACHERY VEETIL, THUMPOLY WARD, ALAPPUZHA. ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.RACHEL JOSEPH SRI.K.A.IDICULLA THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. -------------------------- A.S.NO.32 OF 1999 -------------------------- DATED THIS THE 12TH DAY OF JANUARY, 2010 JUDGMENT Plaintiff in O.S.No.15/93 on the file of the Principal Sub Court, Alappuzha is the appellant. The suit was filed for recovery of money. The lst defendant remained ex parte. The suit was contested by the 2nd defendant. The court below dismissed the suit. Aggrieved by the judgment and decree the plaintiff has preferred this appeal. The parties hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. The plaintiff's allegations are that the lst defendant as principal borrower and the 2nd defendant as surety-cum- guarantor have availed an amount of Rs.15,000/- from the plaintiff-bank on 21/3/1987. As security for the loan, the lst defendant executed a demand promissory note. The rate of interest agreed to be paid is 17.5% per annum with quarterly rests. As per the terms, the lst defendant agreed to repay the -2- A.S.No.32/1999 amount in 36 monthly instalments. The 2nd defendant has executed an agreement of guarantee on 21/3/1987 guaranteeing the repayment of the loan amount. The suit was filed for realisation of the balance outstanding amount of Rs.39,474/-. 3. The 2nd defendant alone contested the suit. The execution of the agreement of guarantee is denied. It is contended that the 2nd defendant has not even known the lst defendant. It is averred that the 2nd defendant never stood as a surety-cum-guarantor of the lst defendant for availing the loan. The 2nd defendant denied the execution of any acknowledgement of debt on 31/12/1989 and 4/1/1990 as alleged in the plaint. In the reply notice sent by the 2nd defendant on 23/12/1992 he denied the execution of the guarantee deeds. 4. The plaintiff is a Nationalised Bank. The lst defendant availed a loan from the Bank of Thanjavoor Ltd. Pursuant to the notification dated 19/2/90 under Section 7 of Sub Section 45 of the Bank Regulations Act, 1949, the Bank of -3- A.S.No.32/1999 Thanjavoor Ltd. was amalgamated with Indian Bank. As per the said notification, all rights, claims, demands and interests, assets and properties of the Bank of Thanjavoor Ltd. vested with the Indian Bank, which is the transferee bank and as such the Indian Bank is entitled to recover all amounts due to the former bank of Thanjavoor Ltd. 5. In support of the claim for realisation of money, PW1 was examined on the side of the plaintiff and Exts.A1 to A5 were marked. The 2nd defendant was examined as DW1 and Exts.B1 and B2 were marked on his side. The lst defendant did not contest the suit and remained ex parte. 6. The trial court observed that since the execution of Ext.A3 is denied by the contesting defendant, it is the burden of the plaintiff to prove the execution of the same. The present Manager of the plaintiff-bank was examined as PW1. He could not identify the 2nd defendant or he was able to prove the transaction, the execution of Ext.A3 and other documents -4- A.S.No.32/1999 connected therewith. Neither the Manager of the bank, who was in charge, nor any other officials, who are associated with the Manager at the time of availing loan, were not cited or examined. In view of the denial of execution of Ext.A3 and other documents, it is for the plaintiff to prove the transaction alleged to have been signed by the 2nd defendant. No supporting evidence was adduced to prove that Ext.A3 document was executed by the 2nd defendant. In the reply notice also the 2nd defendant denied the execution of Ext.A3 and had chosen to say that he does not even know the lst defendant. The court below compared the signature of the 2nd defendant with the admitted signatures in the written statement and Vakalath and observed that the signature differs. Comparison of the signatures by the court below shall be resorted to only in exceptional circumstances and cases. In cases where comparison is necessary the court below can rely on the opinion of a handwriting experts. For that the disputed signatures shall be sent for comparison. -5- A.S.No.32/1999 Since the plaintiff failed to prove the execution of Ext.A3 and other documents and having failed to file necessary application for sending the document containing the signatures to a handwriting expert, I do not find any reason to interfere with the judgment and decree passed by the court below finding that the plaintiff is not entitled to get any of the relief prayed for as against the 2nd defendant. 7. I have stated in the preceding paragraphs that the lst defendant, who is the principal borrower, remained ex parte. That means he has no contentions. In such a situation instead of dismissal of the suit, the court below ought to have passed a decree as against the principal borrower. In the facts and circumstances of the case, the dismissal of the suit in its entirety cannot be sustained. The lst defendant having not contested the case and remained ex parte, the court below ought to have passed a decree as against the lst defendant/lst respondent. 8. The learned counsel for the appellant submitted that -6- A.S.No.32/1999 the appeal may be remanded so that the plaintiff-bank can avail an opportunity to adduce evidence in order to prove the execution of Ext.A3 and other documents executed by the 2nd defendant. The suit is of the year 1993, it was dismissed in 1998 and the appeal is pending for the last 10 years before this Court, In the circumstances, the request for remand at any rate cannot be entertained. In the interest of justice the appellant/plaintiff is entitled to a decree as against the lst defendant. Before this Court also the lst defendant/lst respondent did not care to enter appearance. Since the allegations in the plaint are not denied, the appellant/plaintiff is entitled to a decree as against the lst defendant. In the result, the appeal is partly allowed. The judgment and decree passed by the trial court is set aside. A decree is passed allowing the plaintiff to recover a sum of Rs.39,474/- with future interest at the rate of 9% per annum from the date of suit till realisation from the lst defendant and his -7- A.S.No.32/1999 assets. The suit is decreed with costs of the suit realisable from the lst defendant. HARUN-UL-RASHID, JUDGE. kcv.