1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.290 OF 1995 1) Nilkanth s/o Chintaman Phalak, Age-44 years, Occu:Agriculturist, R/o-Vithal Mandir Ward, Bhusawal, District-Jalgaon. 2) Chintaman s/o Bhagwan Phalak, Age-65 years, Occu:Agriculturist, R/o-Vithal Mandir Ward, Bhusawal, District-Jalgaon. .... APPELLANTS. VERSUS 1) Bank of Maharashtra, (Body Corporate registered under Banking Acquisition and Transfer Act,1970, a Nationalized Bank, having its Head Quarter at Lokmangal, Shivajinagar, Pune, with one of its branches at Bhusawal, Dist-Jalgaon. 2) Raghunath s/o Giridhar Chaudhary Age-45 years, Occu:Business, R/o-Near Gayatri Shaktipith, Jamner Road, Bhusawal, District-Jalgaon. .... RESPONDENTS. ... Mr.L.V. Sangit Advocate h/f. Mr. V.J. Dixit Advocate for the Appellants. Mr.M.M. Patil Beedkar Advocate for Respondent No.1. None present for Respondent Nos. 2 and 3 though served. ... 2 CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 10TH JULY, 2009. JUDGMENT PRONOUNCED ON: 17TH JULY, 2009 JUDGMENT: 1. Heard learned counsel for the Appellants and learned counsel for Respondent No.1. Though Respondent Nos. 2 and 3 served, no one appeared on behalf of them when the matter called out for final hearing. 2. By this First Appeal, the Appellants - original defendant Nos. 1 and 2 challenged the Judgment and decree dated 2nd March, 1995 passed by civil Judge, Senior Division, Jalgaon in Special Civil Suit No.99 of 1990. The Respondent No.1 is original plaintiff. A few facts of the matter are as under: . Respondent No.1 Bank of Maharashtra filed Special Civil Suit No.99 of 1990 in the Court of Civil Judge, Senior Division, Jalgaon against Appellants - original defendant Nos. 1 and 2 principal borrowers and Respondent Nos. 3 and 4 guarantors - original defendant Nos. 3 and 4, for recovery of Rs.2,11,414/-. 3 The Appellants wanted to develop their agricultural land and increase the productivity of the lands and therefore they approached Respondent No.1 Bank for different types of agricultural loans. Appellants wanted to lay pipe line in their irrigated lands. They also desired to purchase a tractor, trolley to carry on agricultural activities and desired to purchase a thresher machine to process and cut fodder. For that purpose, Appellants submitted quotations from the concerned dealers for those articles. On the basis of those quotations, the Respondent No.1 granted following loans: Sr. No. Head under which loan granted Amount Rs. 1) 35 H.P. HMT Tractor 62,000/- 2) Accessories of the above Tractor 19,000/- 3) Thresher 13,000/- 4) Pipeline (PVC) 20,000/- 5) 10 H.P. Electric Motor 09,000/- 6) Land leveling 20,000/- TOTAL: 1,43,000/- 3. In all the Respondent No.1 sanctioned a sum of Rs.1,43,000/- as a loan to the Appellants. For this 4 loan amount the Appellants executed several documents like promissory note, hypothecation deed, guarantee etc. In addition to these documents, the Appellants also executed the registered mortgage deed of their agricultural lands situated at Sakegaon bearing Gat No.141, 111/4 and 21 on 5th April, 1984 in favour of Respondent No.1 Bank. Though the Respondent No.1 granted Rs.13,000/- to the Appellants for purchasing thresher machine for which the advance was made, they gave false excuse to the officer of the Respondent No. 1 that they would purchase thresher in near future as thresher of their choice was not available in the market. Ultimately the Appellants never purchased thresher and misused the amount of Rs.13,000/-. On number of occasions the bank officer met the Appellants and requested them to repay the loan amount. At that time the Appellant No.1 flatly refused to pay anything. Not only that, the Appellants have not paid a single pai till the filing of the Suit. On or about 6th April, 1987 the Appellants executed acknowledgment of debt and thereby enhanced the period of limitation. Even after extending the period of repayment, the Appellants totally refused to pay 5 towards the loan amount and interest. The Appellant No.1 is founder member and chairman of "Nilkanth Urban Credit Co-operative Society/ Bank". He is director of "Hitwardhini Credit Co-operative Society, Bhusawal", he is also a chairman of "Maharashtra Co-operative Spinning Mill"Khadka, Tq-Bhusawal. The Respondent No.1 requested several times to repay the said loan amount. Inspite of several requests, as the Appellants failed to repay the loan amount, the Respondent No.1 issued notice to the Appellants as well as Respondent Nos. 3 and 4 on or about 3rd August, 1989 and 7th March,1990 but failed to get any response from Appellants as well as Respondent Nos. 3 and 4. Ultimately Respondent No.1 filed present Suit on 2nd April, 1990 for following reliefs: "(A) Defts.no.1 to 4 be ordered and decreed to pay Rs.2,11,414/- to the ptff. from the date of filing of suit till its realisation. (B) All the defts be ordered to pay interest at the rate of 12.5% p.a. on the amount of tractor, trolley and thresher. 6 (C) All the defts. be directed to pay interest at the rate of 10% p.a. on the loan amount of pipe line, land development etc. from the date of filing the suit till its realisation. (D) Lands G. no. 141, 111/4, 21 situated within Sakegaon and mortgaged to the Bank be sold for the recovery of loan amount. Tractor No.M.G.L. 8450 and trailor No. M.W.D. 7757 be sold to recover the amount. (E) Deft. be directed to pay insurance amount of tractor and trailor, which ptffs. have paid during pendency of suit. (F) Costs of the suit be awarded to the ptff. (G) Any other just and equitable relief as the Court may been fit be awarded to the ptff." 4. The Appellants filed their written statement dated 12th August, 1991 and denied their liability to repay the said loan amount. It is the case of the Appellants that they signed the blank printed forms 7 and the forms were not filled up in their presence, hence whatever is written in the so-called agreement forms, is not binding on them. They further submitted that no particular document is executed by them. They further submitted that the suit filed by Respondent No.1 was not within limitation and hence the same was liable to be dismissed. 5. On the basis of submissions of the parties, the trial Court decreed the suit against the Appellants and Respondent Nos. 2 and 3 holding that Respondent No.1 is entitled to recover a sum of Rs.2,11,414/- with future interest of Rs.94,000/- at the rate of 12.5% per annum and also at the rate of 10% on Rs. 49,000/- from 2nd April, 1990 till realization from Appellants and Respondent Nos. 2 and 3. Being aggrieved by the said Judgment and decree dated 2nd March, 1995, the Appellants - original defendant Nos. 1 and 2 preferred present Appeal on several grounds. 6. Learned counsel appearing on behalf of the Appellants raised only following points for determination: 8 "(i) Whether the suit is barred by limitation? (ii) Whether the Plaint is duly affirmed by authorized officer of the plaintiff? (iii) Whether Exhibit 42 and 45 i.e. acknowledgment of debt interpolated by Respondent No.1? (iv) Whether the Appellants agreed to pay any interest on the loan amount?" 7. Learned counsel appearing on behalf of the Appellants submitted that the Suit filed by the Respondent No.1 was barred by limitation. It is the contention of the learned counsel for Appellants that they executed original documents on 7th April, 1984 and the present Suit came to be filed on 2nd April, 1990. As the suit filed by Respondent No.1 is beyond the period of limitation i.e. three years from the date of cause of action, the same is barred by limitation. He further submitted that Exhibit 42 and 45 i.e. acknowledgment of debt are manipulated by Respondent No.1. He submitted that though the 9 Appellants admitted the execution of Exhibit 42 and 45, they denied the contents of the same. Not only that those documents were actually signed on 6th April, 1984 but same were interpolated by Respondent No.1 and they were made to have been executed in 1987 and therefore the present Suit was barred by limitation. Following points arise for determination: "(i) Whether the Suit filed by Respondent No.1 is barred by limitation? (ii) Whether Exhibit 42 and 45 are interpolated by Respondent No.1?" 8. Learned counsel appearing on behalf of the Appellants pointed out that PW2 Rajiv Prataprao Kadam in his deposition stated that Exhibit 42 and 45 were corrected by him from 1984 to 1987. Learned counsel appearing on behalf of the Appellants submitted that Exhibit 42 and 45 are the letters written by the Appellants to Respondent No.1 bank admitting their claim. If the authors of these two letters are Appellants, then PW2 has no authority to correct the same. In support of his submission, 10 learned counsel for the Appellants relied on the authority in the matter of Prakash Cotton Mills Pvt. Ltd. vs. Municipal Commissioner for Greater Bombay, reported in 1982 Mh. L.J. 840. In this case the High Court held that correctness of the contents of document can only be proved by examining the executant. 9. Learned counsel appearing on behalf of Respondent No.1 submitted that Respondent No.1 filed Suit well within time. Though original loan was sanctioned in favour of Appellants on 7th April, 1984, the Appellants executed letters at Exhibit 42 and 45 and admitted their liability as on 6th April, 1987 and therefore filing of the Suit on 2nd April, 1990 is within limitation. 10. Along with the learned counsel for the parties, I have gone through the Record and Proceedings. I have seen Exhibit 42, 43, 44, 45, 46 and 47. Exhibit 42 is a printed letter addressed to the Manager, Bank of Maharashtra by Appellants. In that letter, the Appellants admitted the execution of the agreement of 11 hypothecation of machinery dated 7th April, 1984 and equitable mortgage of property dated 5th April, 1984. It is also stated in this document that they are admitting their liability as on 6th April, 1987 to the tune of Rs.1,31,761/-. At the bottom of left side of Exhibit 42, it seems that the date initially written was '6th April, 1984' and later on it was changed to '6th April, 1987'. It is difficult to accept the contention of learned counsel for the Appellants that the said document Exhibit 42 was executed on 6th April, 1984, because it is stated in Para 2 of the said letter that the debt balance due as on 6th April, 1987 is admitted by the Appellants. If the debt balance as on 6th April, 1987 is admitted by the Appellants, then in any case the said document cannot be dated 6th April, 1984. Therefore, it seems that by mistake the year was written as '1984' and the same was corrected immediately as '1987'. I am of the opinion that the said letter was corrected immediately because the handwriting of '1984' and of '1987' was of the same person as well as the same ink was used. Therefore, it is not possible to hold that Respondent No.1 interpolated Exhibit 42 for their suitable 12 action. In continuation of Exhibit 42, I have seen Exhibit 43 also. Exhibit 43 is a letter written by Respondent Nos. 2 and 3 guarantors admitting that they executed guarantee bonds dated 17th April, 1984 in favour of Respondent No.1 Bank in respect of loan facility granted to the Appellants. The said document Exhibit 43 is dated 6th April, 1987. Another document at Exhibit 44 is a letter written by Respondent No.3 - guarantor Narendra Madhukar Patil to the bank admitting that he executed guarantee bond dated 7th April, 1984 in respect of loan facility granted by Respondent No.1 Bank in favour of the Appellants. The said Exhibit 44 is also executed on 6th April, 1987. Exhibit 45 is a letter written by the Appellants to the Bank Manager for admitting their debt balance as on 6th April, 1987 to the tune of Rs.19,842/-. Learned counsel for the Appellants submitted that in Exhibit 45 at two places the Respondent No.1 made corrections without the Appellants authority and/or consent. He pointed out that date 6th April, 1984 is changed to 6th April, 1987. With the help of both the counsel for the parties, I have carefully gone through Exhibit 45. It is clear that year 1984 at two places was corrected 13 as 1987. In any case, it is clear from Exhibit 45 that those corrections are made because of clerical mistake. It is clear that on Exhibit 45 year 1984 is corrected as year 1987 immediately by the same person because ink and handwriting is same. Even otherwise Exhibit 45 cannot be dated 6th April, 1984 because the loan was sanctioned in favour of the Appellants initially on 7th April, 1984. From the record it is clear that Exhibit 30 i.e. pronote dated 7th April, 1984, Exhibit 31 hypothecation deed, Exhibit 32 document of guarantee executed by Respondent Nos. 2 and 3, Exhibit 33 agreement dated 7th April, 1984; all these documents are executed on 7th April, 1984 when initially the loan was sanctioned/ granted to the Appellants. If the loan is granted on 7th April, 1984, there is no question of executing the documents at Exhibit 42 and 45 on 6th April, 1984 i.e. before executing other main documents as referred to herein above. Therefore the contention of the learned counsel for Appellants about interpolation of Exhibit 42 and 45 is rejected. 11. Learned counsel appearing on behalf of the 14 Appellants pointed out that PW2 Rajiv Prataprao Kadam in his deposition stated that Exhibit 42 and 45 are corrected by him scoring 84 to 87. Learned counsel for the Appellant submitted that Exhibit 42 and 45 are the letters written by the Appellants to Respondent No.1 Bank admitting their claim. If the author of these two letters are Appellants, then PW2 has no authority to correct the same. In support of his submission, learned counsel appearing for the Appellants placed reliance on the authority in the matter of Prakash Cotton Mills Pvt. Ltd. vs. Municipal Commissioner for Greater Bombay and others, reported in 1982 Mh. L.J. Page No.840. It is held in that case that the correctness of the contents of document can only be proved by examining the executant. Learned counsel for the Appellants also relied on the authority in the matter of Bishwanath Rai vs. Sachhidanand Singh, reported in A.I.R. 1971 S.C. Page 1949. In this case, it is held by the Apex Court that correctness of the contents of the letter can only be proved by examining the author of the same as witness. Para 7 of the said Judgment reads as under: 15 "7. At one stage in its judgment, the High Court has sated that this letter was not relevant when Swamiji himself was not examined and that, if it had been relevant, the Court would have been inclined to entertain the request for examination of Swamiji as a court witness. Great reliance was placed by learned counsel on this view expressed by the High Court in its judgment. It appears to us that the High Court was quite wrong in holding that this letter was not relevant. The contents of this letter were proved by the evidence of Ram Chandra Sharma who stated that he knew the handwriting of Swamiji with whom he had had correspondence even earlier. His evidence, thus, was sufficient to prove that Swamiji wrote this letter to Ram Chandra Sharma, and that the statement contained in the letter were made by Swamiji himself. It is true that in the absence of examination of Swamiji the correctness of those statements cannot be held to be proved. Thus, the evidence of Ram Chandra Sharma proves the contents of the letter but not the correctness of those contents. The letter was, therefore, admissible to the extent to which the fact that Swamiji wrote such 16 a letter to Ram Chandra Sharma with its contents has bearing on the issues, involved in this case. To that extent, the letter was relevant and admissible. However, we are not inclined to agree with the High Court that, if this letter is relevant and admissible, the Court should have examined Swamiji as its own witness. The relevancy or admissibility was judged by the Court at the last stage of delivering the judgment. There was no justification for the appellant to wait for the judgment and not examine Swamiji as his own witness as held by us above. In the circumstances, this letter has to be taken into account to the extent just indicated by us above." 12. Learned counsel for the Appellants relied on the authority in the matter of Dattatraya vs. Rangnath Gopalrao Kawathekar, (dead) by his legal representatives and others, reported in A.I.R. 1971 S.C. Page 2548. In this case the Apex Court held that the party seeking to prove execution of the document was not required to prove that the executant knew the contents thereof when the executant denies to have signed it and pleaded that it was a forgery. 17 13. I have gone through all these authorities relied on by the learned counsel for the Appellants. They are not at all helpful to the Appellants in the present case. Exhibit 42 and 45 are printed forms of acknowledgement letters. PW2 specifically stated that the balance confirmation letter dated 6th April, 1987 is in his handwriting and the Appellants signed in his presence. In any case the Appellants admitted execution of Exhibit 42 and 45 except the contents thereof. As noted herein above Appellant No.1 is chairman and director in several co-operative societies/ banks. It seems that though Exhibit 42 and 45 are prepared by PW2, the same were executed by the Appellants. Therefore the contention of the learned counsel for Appellants about interpolation in Exhibit 42 and 45 cannot be accepted. 14. Another contention raised by learned counsel for the Appellants is that Appellants never agreed to pay any interest to the Respondent No.1 Bank. I have gone through the documents at Exhibit 30, Exhibit 35 and other documents in which rate of interest is 18 specifically stated. The execution of those documents is not denied by the Appellants at all. Therefore, the contention raised by learned counsel for the Appellants that the Appellants had not agreed to pay interest as claimed by the Respondent No.1 - original plaintiff, is not acceptable and the same is rejected. 15. The next contention raised by the learned counsel for the Appellants is that the Plaint was signed by Madhav Bhagwat Bhide on behalf of the plaintiff - Respondent No.1 without any authority. He submitted that Respondent No.1 failed to file any documentary proof to show that the Plaint was signed by the deponent having authority from Respondent No.1. In any case this contention cannot be accepted because it is specifically stated in Para 17 of the Plaint that: "Plaint and verification are signed by Shri M.B. Bhide, the Principal Officer of the Bank, he is conversant with the facts and authorized officer." 16. This itself shows that Mr. M.B. Bhide signed 19 the Plaint with authority from the Bank of Maharashtra. Learned counsel for Respondent No.1 submitted that as stated in para 17 of the Plaint, the Plaint was signed by authorized officer and therefore the contention raised by learned counsel for the Appellants is liable to be rejected. He further submitted that once the Plaint is admitted, evidence is recorded and the decree is passed by the Court, then other side cannot raise such type of technical pleas. He submitted that the Appellants in their written statement, nowhere raised this plea. Learned counsel for Respondent No.1 relied on the authority in the matter of United Bank of India vs. Naresh Kumar and others reported in A.I.R. 1997 S.C. Page No.3. In that case the Apex Court held that procedural defects which did not go to the root of the matter, should not be permitted to defeat a just cause. Para 9 and 10 of the said authority reads as under: "9) In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to 20 the root of the matter should not be permitted to defeat a just case. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable." "10) It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the secretary or any Director or other Principal Officer of the corporations who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any 21 formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking the circumstances of the case, specially with regard to the conduct of the trial, come to the 22 conclusion that the corporation had ratified the act of signing of the pleading by its officer." 17. It is clear from the Apex Court Judgment in the matter of United Bank of India (supra) that the suits instituted or defended on behalf of the public corporation, public interest should not be permitted to be defeated on mere technicalities. In the present case, it is specifically stated in Para 17 of the Plaint that Mr. Bhide is principal officer of the Bank and he is conversant with the facts and authorized officer. Therefore the contention raised by learned counsel appearing on behalf the Appellant that the Plaint is signed by the deponent without any authority, cannot be accepted and the same is rejected. 18. In view of the above facts and circumstances, I do not find any merit in the present First Appeal and the same is rejected with costs. [K.K. TATED, J.] asb/JULY09/fa290.95 23