TMI Blog2003 (6) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were impleaded as the respondents before the Tribunal in the capacity of the guarantors for the respondent no.4. It appears from the proceedings that except the appellant no other respondent contested the claim of the respondent no.3/bank. The appellant appeared before the Tribunal and filed his written statement on 26.3.2002 contesting the claim of the bank inter-alia on the ground that he had not signed the alleged guarantee papers and he was not a guarantor for the loan given by the bank to the respondent no.4. At the outset, in paragraph no.1 of his reply, he seriously contested the claim of the bank that he was a guarantor for the respondent no.4. He, therefore, filed two separate applications on 20.5.2002, one to delete his name from the O.A. and the other to request the Tribunal to send the alleged signature on the bank guarantee papers for the opinion of any hand writing expert who would compare the specimen signatures of the appellant which he had given with his written statement. The Bank filed its reply to the said applications to oppose the prayers of the appellant. 4. It appears from the pleadings that the appellant who was impleaded as defendant no.2 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the respondent no.3 Bank that the notice was served on the petitioner prior to filing of the Original application before the Tribunal. Be that as it may, no case is made out for interference. The petition is dismissed. From the order which we have reproduced hereinabove, it is clear that the learned Single Judge was given to understand that though the appellant was served with the summons of the original application in the year 2000, he filed an application for appointment of hand writing expert in the year 2002 when the matter was kept for final arguments. The learned counsel appearing for the appellant submitted that the said observation in the order of the learned Single Judge is factually incorrect and contrary to the record, as the appellant was served with the summons sometimes between 25.1.2002 and 11.2.2002 and he filed his appearance in the Tribunal on 11.2.2002 when the bank was directed to furnish the copy of the original application and the documents. The learned counsel further pointed out that on 14.3.2002 he was furnished with the copy of the Original Application and the documents by the bank and thereafter he filed his written statement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd prayed for permission to file his written statement. The Roznama further indicates that on 15.1.2002 the learned Advocate for the bank filed pursis stating that summons was served on defendant no.2 but acknowledgement was not received. It further appears that the matter was posted for awaiting acknowledgement of the receipt of summons on the appellant and for written statement of defendant no.5. The matter was further adjourned on the same ground on 25.1.2002 and thereafter it was adjourned to 11.2.2002. On 11.2.2002 Ms.Manjarkhede, the learned advocate, filed Vakalatnama on behalf of the appellant. On that date she was furnished with the copies of the proceedings. On that date itself, the matter proceeded ex parte against defendant no.5 who did not file his written statement. On 01.03.2002 the learned advocate for defendant no.5 filed an application praying for setting aside the order to proceed ex parte against her client. The hearing of the application was adjourned to 14.3.2002. On 26.4.2002 the appellant filed his written statement. On 7.5.2002 the learned Tribunal curiously enough rejected the application seeking permission by the defendant no.5 to file a written statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Apart from that, there is no necessity for the bank officers to forge signatures of 2nd defendant on the guarantee deed in order to fasten the liability on defendant no.2. By fabricating such documents, the bank officers are not getting any personal gain. This is only a frivolous application filed by defendant no.2 to protract the proceedings. If this sort of applications are entertained, it is not possible to dispose of the original applications within six months as per the provisions of Debts Recovery Tribunal Act. With respect to the learned Presiding Officer of the Tribunal, we must observe that the above quoted opinion of the learned Tribunal suffers from basic misgivings and misunderstanding of law. It is no doubt true that the Tribunal does not pass a Decree but issues a Certificate which has to be executed through the Recovery Officer as a decree. Such a certificate issued by the Tribunal at the end of the hearing of the application by the creditor-bank partakes a character of a decree, though it is called a Certificate under this Act. We must also observe that the technicalities of the Code of Civil Procedure are not made applicable to the proceedings before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h notice by the addressee. Reply or no reply to a notice would be only one of the factors to be considered at the time of decision of the matter. Merely because the appellant did not send reply to the notice served by the bank, we cannot rush to a conclusion that the appellant was liable to pay to the bank on behalf of the principal borrower such a huge amount of the debt. The Tribunal has not at all considered the pleadings of the appellant in the written statement. He has categorically denied the allegation that he had signed any guarantee on behalf of the principal borrower. The only factor which has gone against the appellant is the allegation made by the bank that the appellant did not give reply to the notice sent through its advocate. Unfortunately, the Appellate Tribunal has not applied its mind to the pleadings of the appellant and has factually committed a mistake to assume that the appellant was served in the year 2000 with the summons from the Tribunal. There has been a confusion in respect of the service of a notice by the bank in the year 2000 and service of summons from the Tribunal in February 2002. The learned Member of the Tribunal as well as the learned Chairpers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal as also by the learned Chairperson of the Appellate Tribunal. According to us, both have committed grave error of facts and also law and have caused through their orders grave injustice and miscarriage of justice to the appellant. Finally, it would perhaps be proved beyond any reasonable doubt that the signature on the bank guarantee was not that of the appellant and that he would perhaps be discharged honorably from the debt as a guarantor, as alleged by the bank. The appellant has every right to plead and prove that he was not a party to the transaction in which he was being implicated. We must also bear in mind that the principal borrower and others are deliberately remaining away from the Tribunal for the reasons best known to them and the whole liability is being foisted on the Appellant. Unfortunately, even the learned Single Judge of our Court has also lost sight of the crucial facts on record and erroneously concluded that the Appellant was served with summons of the Tribunal in the year 2000 and that he filed the applications under questions in the year 2002 when the matter was kept for final arguments. He also mistook the notice of the Banks Advocate sent in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the citizens or the borrowers are always false or liars. The Tribunals must change such presumptive approach in favour of the Banks and the Financial Institutions which are also manned by the frail human beings. There is nothing sacrosanct about them and their documents which are subject to the Law of Evidence. 7. Today when the Appeal was called out, the learned counsel for the respondent no.3/bank has fairly made a statement that the bank will not object to the reference being made to a hand writing expert by the Tribunal and that they will give consent to the alleged signature of the appellant on the guarantee to be referred to the hand writing expert. In view of this fair stand taken by the respondent/bank, nothing survives in the present matter, though however, we have decided the Appeal on its merits and not on the concessions made by the learned counsel for the Bank under instructions. 8. The Tribunal shall refer the alleged signature on the guarantee on which the respondent/bank is relying to be the signature of the appellant to any hand writing expert. The appellant shall also produce his original signatures on his passport, driving license and his bank opening f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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