IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 213 of 1993 Reserved on : 23.12.2008 Date of Decision : May 5, 2009 Punjab National Bank, …Appellant-plaintiff. Versus: Kanta Devi & others …Respondents-defendants . Coram: The Hon’ble Mr.Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. R. L. Sood, Sr. Advocate, with M/s. Vikas Rajput & Rajesh Kashyap, Advocates. For respondents 1(a) to 1(c):Mr. Sanjeev Kuthiala, Advocate. For respondents 3(a) to 3(f): Mr. R.K. Gautam, Sr. Advocate with Ms. Radhika Gautam, Advocate. SANJAY KAROL, J. Plaintiff M/s. Punjab National Bank has filed the present appeal assailing the judgment and decree dated 23.6.1993 passed by the learned Single Judge of this Court in Civil Suit No.66 of 1985 titled as Punjab National Bank vs Roshan Lal & Others. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 The suit was filed by the Punjab National Bank (hereinafter referred to as the plaintiff) against Roshan Lal, defendant No.-1 (hereinafter referred to as the principal borrower), Shri Kartar Singh, defendant No.2 (hereinafter referred to as defendant No.2) and Shri Dina Nath, defendant No.3 (hereinafter referred to as the contesting defendant). In terms of the impugned judgment, the plaintiff’s suit was dismissed by the learned Single Judge for the reason that the plaintiff had failed to prove that the deed of guarantee Ext.PW-5/A was in fact signed by the contesting defendant and that he was also not confronted with the original of the said document. Brief facts leading to the filing of the present appeal are as under:- Plaintiff filed a suit for recovery of Rs.2,71,935.35 paise against defendants No.1 to 3 under Order XXXVII of the Code of Civil Procedure. In the plaint, it was specifically pleaded that the principal borrower had applied for loan which was sanctioned. Defendants No.2 and the contesting defendant stood surety for the said loan and executed separate Deeds of guarantees. There were serious defaults in repayments, hence all the defendants were liable to pay the amount. Notices were issued to all the defendants. Defendants No.1 & 2 filed a joint application under Order 37 Rule 3(5) Rule 5 of CPC seeking leave to defend pleading; “that it is admitted, however, that the applicant No.1 3 applied for a loan of Rs.2,14,000.00 and the same was granted to him by the plaintiff Bank. Defendants No.2 & 3 stood surety for the said loan.” It was explained that the loan was not repaid as the truck had met with an accident and could not be plied for almost a year. The defendants pleaded that the rate of interest be reduced. On 8.1.1986, both the Principal Borrower and the defendant No.2 admitted the claim and recorded their statements as under:- Statement of Shri Roshan Lal defendant No.1 “I admit the claim of the plaintiff – bank for the recovery of Rs.2,71,935.35 P. A decree may be passed against me for the said amount. I may, however, be allowed to pay the decretal amount in easy installments. I may also be given concession so far as the future interest is concerned.” Statement of Shri Deepak Gupta defendant No.2 “I admit the claim of the plaintiff – bank for the recovery of Rs.2,71,935.35 P. A decree may be passed against defendant No.2 for the said amount. He may, however, be allowed to pay the decretal amount in easy installments. He may also be allowed concession so far as the future interest is concerned. In case the plaintiff-bank receives the amount of insurance claim towards the part satisfaction of the decretal amount, the defendants will be entitled to approach the Court for reduction in the amount of installments.” 4 Since defendant No.3 was ex-parte and did not seek leave to contest the suit, hence on 8.1.1986 itself the plaintiff’s suit was decreed in toto against all the defendants. However, the installments were fixed as prayed for. The operative part of the judgment is as under:- “I hereby decree the plaintiff’s suit for the recovery of Rs.2,71,935.35 paise with full costs against all the defendants. The plaintiff-bank will also be entitled to recovery the future interest at the rate of 12½% from the date of the institution of the suit till the date of the recovery. The decretal amount will be payable in monthly installments of Rs.6500/- by 10th of each month, the first installment being payable on or before March 10,1986. In case of default of payment of any installment, the entire balance decretal amount will be recoverable forthwith. In case the plaintiff-bank receives the amount of insurance claim towards the part satisfaction of the decretal amount, the defendants will be entitled to approach the Court for reduction in the amount of installments.” It appears that the decretal amount was not repaid, hence, some action for realization of the decretal amount was taken by the plaintiff. However, on 22.11.1987 the contesting defendant moved an application being OMP No.467 of 1987 for setting aside the aforesaid decree. Various documents were filed along with the said application including the letter written by and on behalf of the contesting defendant to the plaintiff (Annexure 5 A-1); letter dated 9.3.1987 written to the Hon’ble Chief Minister Himachal Pradesh (Annexure A-2); letter dated 28.5.1987 written to the Deputy Commissioner (Annexure A- 4); dated 30.5.1987 (Annexure A-5); 6.10.1987 (Annexure A- 6) & 2.11.1987 (Annexure A-7) requesting for an inquiry into the alleged impersonation and fraud committed on him. The application pleaded fraud having been perpetuated upon him as he never executed the deed of guarantee. The said application was opposed both by the plaintiff as also the principal borrower who also pleaded that defendant No.3 stood guarantee qua the loan in question. Vide order dated 25.10.1988, this Court allowed the said application for the reason that service of the summons on the contesting defendant was not free from doubt and as such, set-aside the ex-parte decree only against the contesting defendant. Subsequently, on his asking, leave to defend and contest the suit was unconditionally granted in terms of order dated 11.1.1989 by this Court. The contesting defendant filed written statement, inter alia pleading that he never stood guarantee for the principal borrower nor did he ever execute any agreement of guarantee on 5.2.1983. It was additionally pleaded that having learnt that a fraud had been played upon him, not only the authorities were requested by him and his nephew Shri Dharam Singh but even an FIR bearing No. 139/88 was 6 registered under sections 419, 420, 467, 468, 471 & 120-B IPC which was pending investigation with the police. In the replication, plaintiff denied the averments and reiterated the averments contained in the plaint. Based on the pleadings of the parties, the Court framed the following issues on 20.3.1990:- 1. Whether defendant No.3 stood guarantee and executed guarantee agreement as alleged? …OPP 2. Whether the suit against defendant No.3 is not maintainable? ….OPP 3. Whether the suit has been filed by a person competent to file it on behalf of the plaintiff and Shri Arun Mohan is the attorney of the plaintiff- bank? ….OPP 4. To what amount of interest is the plaintiff-bank entitled to recover? ….OPP 5. Whether the plaintiff is entitled to recover a sum of Rs.2,71,935.35 P as claimed in the suit? …OPP Opportunity to lead evidence was afforded to the contesting parties. The learned Single Judge decided the issues against the plaintiff and in favour of the contesting defendant for the reason that the plaintiff had failed to prove that the deed of guarantee Ext.PW-5/A was in fact signed by the contesting defendant. Issue No.1 was decided against the plaintiff and based on the said findings all other issues were also decided. In effect all issues were decided against the plaintiff. 7 Mr. R. K. Gautam, learned senior counsel appearing for the legal heirs of the non-contesting defendant has fairly stated that the contest is essentially between the plaintiff and contesting defendant as the original decree dated 8.1.1986 was set-aside only against the contesting defendant. According to Shri R. L. Sood, learned senior counsel ably assisted by S/Shri Vikas Rajput & Rajesh Kashyap, Advocates, appearing for the appellant has submitted that the findings of facts are not only contrary to the record, but are as a result of complete misreading and mis-appreciation of oral and documentary evidence. Per contra, Mr. Sanjeev Kuthiala, learned counsel for the contesting defendant supported the judgment for the reason that the plaintiff had failed to prove its case inasmuch as the principal borrower was not examined by the plaintiff and not much credence can be given to the statement of Shri Surinder Pal (PW-5); document Ext. PW-5/A was not proved in accordance with Law; the contesting defendant was never confronted with the original of the document Ext.PW-5/A and in fact was confronted only with the document Ext.PW-5/B which was never executed by the contesting defendant; the provisions of Sections 101 & 103 of the Indian Evidence Act, 1872 were not complied with by the plaintiff while proving the issues; since all the defendants were residents of District Hamirpur where the plaintiff had a branch office, there was no reason for the loan to be sanctioned and the documents to be 8 executed at the branch office at Shimla; even the service in the suit was not effected upon the contesting defendant. All this is indicative of the fact that the Principal borrower had in fact played a fraud. In support of his contentions, he referred to and relied upon the decisions of the Apex Court reported in Anil Rishi v. Gurbaksh Singh {2006 (5) SCC 558} and Syndicate Bank v. Channaveerappa Beleri & Ors. {2006(11) SCC 506}. I have heard the learned counsel for the parties and also perused the record. In order to prove its case, the plaintiff examined six witnesses, namely, S/Shri Arun Mahajan (PW-1), Manager, Punjab National Bank, Shimla; Yog Raj (PW-2), ASI, Police Station, Sadar, Shimla; Y. P. Sharma (PW-3) Accountant, Punjab National Bank, Shimla; Gur Singh (PW-4) Criminal Ahlmad Court of JMIC(1), Shimla; Surinder Paul Dhawan (PW- 5) employee of Delhi Automobiles, Shimla and S. P. Srivastava (PW-6), Sr. Manager, Punjab National Bank. In rebuttal, the contesting defendant Shri Dina Nath examined only himself as DW-1. The relevant findings of the learned Single Judge are reproduced as under:- “According to him the then Branch Manager of the plaintiff Bank at Tauni Devi had verified about the credit worthiness of the loanee and also the guarantor Dina Nath. He had put the signatures as witness after the loanee and the guarantor Dina Nath had been identified by Kartar Singh. During the 9 cross-examination he stated that he had never met Dina Nath before the said date or thereafter. Infact, he had met him once. He further stated that the said Dina Nath, who put his signatures on the original Ext.PW-5/A was introduced by the loanees, namely, Roshan Lal in this case and one Ranjit Singh in another case.” (Emphasis supplied) “In order to record any finding in favour of plaintiff on issue No.1, there has to be some positive evidence adduced by the plaintiff that original of document Ext.PW-5/A was, in fact, signed by Dina Nath, who has been arraigned in this suit as defendant No.3. No effort has been made on behalf of the plaintiff to connect defendant No.3 with the person who appears to have put signature on the original document Ext.PW-5/A. It appears that some other person, may be at the behest of defendants No.1 & 2, was introduced to the plaintiff as Dina Nath son of Mahant Ram and his signatures might have been obtained on the original of document Ex. PW-5/A. In case the person who signed the document Ex. PW-5/A was defendant No.3 himself, it was incumbent for the plaintiff to have brought some material on record connecting defendant No.3 with the person putting the signature on document Ex.PW-5/A. PWs. 5 and 6 were not acquainted with defendant No.3 and according to them he was introduced either by defendant No.1 or defendant No.2 or by one Ranjit Singh. None of them have been examined by the plaintiff in this case. In these circumstances, it is not possible to hold that it was defendant No.3, who signed the original of document Ex. PW-5/A. Moreover, no effort was also made by 10 the plaintiff to confront defendant No.3 with the original of document Ex.PW-5/A. Consequently, it is held that defendant No.3 never executed the document Ex.PW-5/A nor he signed the same, as alleged. Issue No.1 is accordingly decided against the plaintiff.” (Emphasis supplied) PW-5 in fact in his examination-in-chief has clearly stated that he was working as a Branch Manager, Delhi Automobiles, Shimla from where the vehicle was purchased by the Principal Borrower. He signed the original guarantee agreement Ext.PW-5/A as a marginal witness. When he appended his signatures, the agreement was duly filled in and signed by Sh. Dina Nath and Sh. Kartar Singh who were the guarantors of Roshan Lal who had purchased the vehicle from Delhi Automobiles, Shimla. The vehicle was financed by the plaintiff bank. Shri Kartar Singh guarantor (defendant No.2) was the President of Gram Panchayat, Dunghi who had identified both Roshan Lal, principal borrower and Dina Nath, contesting defendant. The signatures were appended by him as witness after the loanee and the guarantors were identified by the said Shri Kartar Singh. In cross-examination, he clarified that the forms were filled in by the guarantors in his presence. He denied the suggestion that he personally did not know either Shri Kartar Singh or Sh. Dina Nath but clarified that he had met them once as both of them along with the loanee used to come to his office while the case for the purchase of the 11 truck was under process. Loan applications of the Principal Borrower and one Ranjit Singh had been processed by him and Sh. Dina Nath was the guarantor in both the cases. The findings of fact returned by the learned Single Judge that during cross-examination, PW-5 deposed that he never met Dina Nath before the said date or thereafter are obviously incorrect which is evident from the following statement of PW-5:- “It is incorrect to suggest that personally I do not know Kartar Singh as well as Dina Nath. In fact I met them once. Both of them along with Loanee used to come to my office during the processing of the case for the purchase of truck”. The original of the guarantee deed Ext.PW-5/A and Ext.PW-5/B were taken by the police during investigation of the FIR. Plaintiff’s witness Shri Yog Raj (PW-2) has proved that after investigation of the said FIR, the challan alongwith the original documents was submitted in the Court of Addl. CJM(1), Shimla. The record of the court of Addl. CJM(1), Shimla was summoned by the plaintiff which was produced by Shri Gur Singh (PW-4) on 14.4.1992, 19.10.1992 & 13.12.1991. Based on the record produced by this witness, the guarantee deed Ext.PW-5/A was exhibited. It is evident from the statement of PW-5 that the photocopies were exhibited after the original of the same were 12 seen from the summoned record. In fact on 19.10.1992 the Court passed the following order:- “Statement of Shri S. P. Srivastave recorded. Record of Criminal Case No. 191/2 of 1989 (State Versus Balwant Singh and others) produced by Shri Gur Singh, Criminal Ahlmad in the Court of Judicial Magistrate Ist Class (I), Shimla. The record is returned after the copies of the original documents are exhibited. Defendant No. 3 may summon this record, if he so desires, at the time he leads his evidence. Sh. A. K. Goel, learned counsel for the plaintiff-bank, states that he closes plaintiff’s evidence in affirmative. Let the case be listed for evidence of defendants by Registrar (Vigilance)”. (Emphasis supplied) PW-6 the Manager who signed the deed of guarantee Ext.PW-5/A on behalf of the bank categorically deposed that the same bears his signatures. While being posted as the Sub Manager in the Shimla Branch of the plaintiff Bank, he was dealing with the loan cases. According to him, the Principal Borrower moved an application Ext.PW-6/A, signed letter of hypothecation Ext.PW-6/C and demand promissory note Ext.PW-6/B. The contesting defendant Shri Dina Nath signed the original of Ext.PW-5/A after its contents were readover, explained and understood by him. The documents were executed in the Shimla Branch. In cross- examination he clarified that Shri Dina Nath was identified by 13 the Principal Borrower, defendant No. 2 and also one Shri Ranjit Singh in whose case also Sh. Dina Nath was a guarantor. He clarified that there is nothing on record to show that Sh. Dina Nath was identified by these persons as he was deposing from his personal knowledge. He could remember that the loan application of defendant No.1 was received in the bank through the Himachal Pradesh Ex-servicemen Corporation, a Govt. Organization and the loanee and the guarantors used to visit the bank to pursue the loan cases prior to the execution of the loan documents. Therefore, in our view document Ext. PW5/A stood proved in accordance with Law. The veracity of the statements of PW-5 & PW-6 is unimpeachable and beyond doubt. Assuming hypothetically that PW-6 was an interested witness being an employee of the plaintiff. PW-5 was an independent witness having no interest whatsoever in the plaintiff. He had no reason to depose falsely. Both PW-5 & PW-6 have been sufficiently able to prove that it was the contesting defendant who not only used to visit their offices to pursue the loan case but had also signed the documents in their presence. Their statements are convincing, consistent and reliable. Therefore, the findings of the learned Single Judge that the plaintiff had not been able to identify the contesting defendant or prove that it is he who had 14 signed the Guarantee Deed Ext.PW-5/A is on wrong appreciation of facts, contrary to record and thus incorrect. From the statements of the aforesaid witnesses, in our considered view, it is quite apparent that infact the plaintiff has been able to not only prove the execution of the agreement Ext.PW-5/A but also identify the contesting defendant as the person who signed the document Ext.PW-5/A. Sections 101 & 103 of the Indian Evidence Act reads as under:- “101. Burden of proof—Whoever desires any court to given judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 102. On whom burden of proof lies—The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Order 13 Rule 4 CPC provides for every documents admitted in evidence in the suit being endorsed by or on behalf 15 of the Court, which endorsement signed or initialled by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. The objections as to admissibility of documents in evidence may be classified into two classes: ( i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and ( ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the later case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the 16 evidence to cure the defect and resort to such mode of proof as would be regular. Whether it is a Civil or a Criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. (R.V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple {2003(8) SCC 752}, Addagada Raghavamma v. Addagada Chenchamma {AIR 1964 SC 136} & Dayamathi Bai (Smt) v. K.M. Shaffi {2004(7) SCC.107}). Further, the Apex Court in Anil Rishi (supra) has held as under:- “A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.” No doubt, the burden and the onus to prove the fact that the guarantee deed Ext.PW-5/A was executed by the contesting defendant was heavy on the plaintiff, but in our 17 considered view, keeping in view the testimonies of PW-5 & PW-6, it stood discharged by the plaintiff. The contesting defendant did not lead any evidence except for examining himself. In his examination-in-chief he has simply deposed as under:- “I am an illiterate. I cannot even sign. I never stood guarantee for Roshan Lal defendant No.1. Even I do not know Roshan Lal.” However, while being cross-examined, though he denied that he knew the principal borrower but, however, admitted that he knew defendant No.2 and also Ranjit Singh of Dunghi. He further deposed that it was only when the court matter pertaining to the said Ranjit Singh was being examined that he learnt about the instant suit. He denied having visited the Shimla branch of the bank or having executed any document in relation to the loan advanced to the principal borrower. While recording the statement of this witness, the Court observed as under:- “Learned counsel for the plaintiff wants to confront the witness with document Ex.PW.5/B, which is a Photostat copy of the agreement of guarantee. Though the learned counsel for the plaintiff cannot be permitted to put the Photostat copy of the document to the witness, yet the witness has been shown the last page of the document, particularly, the signatures appearing 18 above the word ‘Guarantors’. The witness has denied that these are his signatures.” However, while so recording, obviously there is typographical error as the document referred to is not Ext.PW- 5/B but Ext.PW-5/A. Ext.PW-5/A alone bears the signatures of Dina Nath whereas Ext.PW-5/B bears signatures of Kartar Singh,