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

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B.Civil Second Appeal No. 242 / 2013

Indra Mal
vs
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}

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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.

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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.

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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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