Friday, 16 June 2017

How to prove execution of revival letter for extending limitation for filing of suit?

 On the contrary, Indra Mal (DW-1) has stated in
examination in chief that the signatures at “A to B” on
Ex.2 to Ex.7 are not of his. These signatures are forged.
Though at one place, he has stated that on Ex.6 and Ex.7
also “A to B” part contains his signatures but it appears
that due to typographical error, the word “not” has been
left out. If we read the examination in chief in whole, it
reveals that at other places, he has not only refused his
signatures on revival letters but also stated that the
signatures are fabricated and forged. In cross examination,
he has further stated that on the revival / acknowledgment
letters Ex.2 to Ex.7, “A to B” signatures are not of his,
rather they are forged one.
9. Documents themselves cannot be taken to be of
any value unless their execution is proved by the legal,
relevant and material evidence of the person who has seen
the person signing the documents or who may be conversant
with the signatures of the person executing the documents.
In absence of any such evidence, Ex.2 to Ex.7 cannot be
said to have been established as valid acknowledgment by
the defendant. In the instant matter, the Manager of the
Bank, examined to prove the acknowledgments has admitted
that he was not posted in that Bank branch at the time of
their execution. Moreover, he has specifically said that
he cannot identify the signatures of the defendant.
Therefore, acknowledgments cannot be taken to be validly
proved. The learned courts below have not noticed this
aspect of the matter. The case N.T. Vijayakumar & Ors. vs
The Allahabad Bank, reported in 1999(2) Civil Court Cases,
571 (Karnataka) cited by the appellant is squarely
applicable in the instant case. In absence of valid proof of
execution of debt acknowledgments, the benefit of
protection of section 18 or 19 of the Limitation Act is not
available to the plaintiff Bank and as such, the suit filed
in the year 2003 for recovery of loan disbursed in the
year 1985, stands time barred.
Reportable
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Civil Second Appeal No. 242 / 2013
Indra Mal 
v
State Bank of Bikaner & Jaipur,
MR. JUSTICE VIJAY KUMAR VYAS
Dated: 04/01/2017.
Citation: AIR 2017 Raj 66


1. The appeal has arisen out of judgment & decree
dated 31.5.2013 passed by learned Additional District
Judge, Tonk, in Regular Civil Appeal No.41/2013 (29/2010),
whereby the appellate court rejected the appeal and upheld
the judgment & decree dated 28.4.2010 passed by learned
Civil Judge (Sr. Div.), Tonk in Civil Suit No.15/2003 to
the effect that the plaintiff Bank is entitled to realise
Rs.38,723/- along with interest thereon from the date of
presentation of the suit against the defendant-appellant.
He is also entitled to interest @ 10% p.a. with effect from
1.4.2003 and @ 6% w.e.f. date of judgment i.e. 28.4.2010.
2. In brief, facts of the matter are that on
26.4.2003 respondent/plaintiff filed a suit before Civil
Judge (Sr. Div.), Tonk, against the appellant/defendant
under O.37 R.1 & 2 CPC averring inter alia that the
appellant requested the Bank to grant him a loan of
Rs.20,000/- to run a Kirana shop business. Whereupon, a
loan of Rs.20,000/- was granted. At the time of sanctioning
of loan, various documents such as term deposit delivery
letter, loan agreement letter, etc. were executed by the
appellant in favour of the respondent Bank. Thereafter,
the appellant deposited installments of the loan at
different intervals and on 31.3.2003, Rs.38,723/- along
with interest was outstanding against the appellant. Even
after written reminder, he was not depositing the same.
Prior to 31.3.2003, the appellant acknowledged the debt
from time to time. Therefore, prayed that a decree of
Rs.38,723/- along with interest be passed against the
appellant. After leave being granted to defend the matter,
written statement was submitted by the appellant to the
effect that against loan of Rs.20,000/-, defendant
deposited an amount of Rs.21,801/- and the Bank is wrongly
demanding Rs.30,723/-. The suit is time barred. Just to
bring the suit in limitation, acknowledgment letters have
been fabricated. Forged signatures have been made on the
letters. On the basis of pleadings, following issues were
framed :-
{Vernaculars omitted}
3. Plaintiff-respondent examined Mahendra Kumar Jain
(PW-1) and appellant defendant examined Indra Mal himself
(DW-1). After hearing both the parties, learned trial
court vide judgment dated 28.4.2010 passed the decree in
favour of respondent Bank and against the appellant, as
stated hereinabove.
4. Appellant/defendant preferred an appeal which was
decided on 31.5.2013 by learned Additional District &
Sessions Judge, Tonk. By this judgment, the appeal was
dismissed and the judgment & decree of learned trial court
was upheld.
5. Heard both learned counsels for the parties and
perused the material available on record.
6. The main contentious issue in this matter is the
execution of acknowledgment letters by the appellant.
Respondent has claimed in its plaint that after disbursement
of loan of Rs.20,000/-, the defendant deposited only
Rs.21,801.90 upto 7.2.1995. In response to demand of
repayment made from time to time and written notices given
to repay the remaining amount, the defendant
acknowledged the debt on 12.2.1985, 12.11.1987, 10.12.1989,
16.7.1992, 7.2.1995, 1.2.1998 and 20.1.2001, but did not
repay the outstanding amount. Defendant in its written
statement has denied the execution of any acknowledgment
letters and stated that such letters have been prepared
by way of forgery. The forged acknowledgment letters have
been prepared to bring the suit within the period of
limitation. For the recovery of debt disbursed in the year
1985, the suit has been filed in the year 2003, after the
prescribed period of limitation.
7. Mahendra Kumar Jain (PW-1) is the only oral
witness examined on behalf of Bank. He has stated in
examination in chief that revival letter dated 7.2.1995 is
Ex.2 - revival letter dated 16.7.1992 is Ex.3, revival
letter dated 12.11.1987 is Ex.4, revival letter dated
10.12.1989 is Ex.5, revival letter dated 20.1.2001 is Ex.6,
revival letter dated 1.2.1998 is Ex.7. All these letters
have been executed by the defendant Indra Mal and bears
Indra Mal's signatures at part “A to B”. But in cross
examination, he states that it is true that after his
posting in Tonk Branch, the defendant never signed any
document before him and therefore he cannot identify his
signatures. He further states that signatures of borrower
on revival letters are obtained by sending a messenger to
the borrower. It does not happen that the employee entrusted
to obtain signatures of the borrower on revival letters,
may put forged signatures of the borrower on the same and
submit.
8. On the contrary, Indra Mal (DW-1) has stated in
examination in chief that the signatures at “A to B” on
Ex.2 to Ex.7 are not of his. These signatures are forged.
Though at one place, he has stated that on Ex.6 and Ex.7
also “A to B” part contains his signatures but it appears
that due to typographical error, the word “not” has been
left out. If we read the examination in chief in whole, it
reveals that at other places, he has not only refused his
signatures on revival letters but also stated that the
signatures are fabricated and forged. In cross examination,
he has further stated that on the revival / acknowledgment
letters Ex.2 to Ex.7, “A to B” signatures are not of his,
rather they are forged one.
9. Documents themselves cannot be taken to be of
any value unless their execution is proved by the legal,
relevant and material evidence of the person who has seen
the person signing the documents or who may be conversant
with the signatures of the person executing the documents.
In absence of any such evidence, Ex.2 to Ex.7 cannot be
said to have been established as valid acknowledgment by
the defendant. In the instant matter, the Manager of the
Bank, examined to prove the acknowledgments has admitted
that he was not posted in that Bank branch at the time of
their execution. Moreover, he has specifically said that
he cannot identify the signatures of the defendant.
Therefore, acknowledgments cannot be taken to be validly
proved. The learned courts below have not noticed this
aspect of the matter. The case N.T. Vijayakumar & Ors. vs
The Allahabad Bank, reported in 1999(2) Civil Court Cases,
571 (Karnataka) cited by the appellant is squarely
applicable in the instant case. In absence of valid proof of
execution of debt acknowledgments, the benefit of
protection of section 18 or 19 of the Limitation Act is not
available to the plaintiff Bank and as such, the suit filed
in the year 2003 for recovery of loan disbursed in the
year 1985, stands time barred.
10. Therefore, the appeal is allowed. The judgment &
decree dated 28.4.2010 passed by learned trial court and
the judgment & decree dated 31.5.2013 passed by learned
appellate court are quashed and set aside. The suit of
the plaintiff against the defendant is rejected.

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