High Court
Case Details
WP(C) 5924/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN
Legal Reasoning
Heard Mr. D Chakraborty, learned counsel for the petitioner. By way of this writ petition, petitioner has challenged legality and validity of order dated 01.10.2013, passed by the Presiding Officer, Debts Recovery Tribuna l, (DRT), Guwahati, whereby, petition filed by the petitioner for referring a do cument for opinion of forensic expert to determine genuineness of signature appe aring therein was rejected. Facts of the case briefly is that respondent Nos. 2 & 3 had availed a loan from the State Bank of India (SBI) for which respondent No. 4, who is the husband of the petitioner, stood as guarantor. Respondent Nos. 2 & 3 failed to repay the lo an. SBI instituted proceedings before DRT for recovery of loan with interest, wh ich was registered as OA No. 98/2009. Though, petitioner was not made a defendan t, she got herself impleaded as defendant No. 4. Petitioner, as the defendant No. 4, filed an application before DRT in OA No. 98 /2009, questioning genuineness of her signature in the affidavit dated 12.12.200 5 (Ext. A 10) and seeking a direction to refer the same to the Forensic Science Laboratory for forensic examination and opinion. As per the said affidavit (Ext. A 10), defendant No. 4 (writ petitioner), who is the joint owner with respondent No. 4 of the property pledged as surety with SB I for the loan availed by defendant Nos. 2 & 3, gave her no objection for mutati on of the said land in favour of her husband. According to the petitioner, she w as unaware of such affidavit and her signature appearing in the said affidavit w as forged. Hence, the above prayer was made. The said petition was registered as Petition No.141/2013 in OA No. 98/2009. Pres iding Officer of DRT, by the impugned order dated 01.10.2013 did not find any me rit in the contention of the petitioner and dismissed her petition. Learned counsel for the petitioner submits that when forgery has been alleged, D RT ought to have referred the said document, which is a crucial document in so f ar liability of petitioner and respondent No. 4 are concerned to the Forensic Sc ience Laboratory for forensic examination and opinion. The offending affidavit a nd the signature of the petitioner appearing therein were without the knowledge of the petitioner. Therefore, for a fair adjudication of the proceeding, DRT oug ht to have obtained the opinion of forensic experts. He, therefore, submits that this Court should interfere with the impugned order and direct the DRT to refer the document in question for forensic examination. Till forensic opinion is rec eived, further proceedings in OA No.98/2009 should be kept in abeyance, learned counsel contended. DRT while rejecting the petition of the petitioner vide order dated 01.10.2013 h eld as under: - (cid:28)This affidavit has been filed with the applicant bank by the defendant No. 3 wh ich appears to have been relied by the applicant bank and accordingly mortgage b y way of deposit of title deeds relating to the impugned property in issue was c reated. The facts remains that the Affidavit has been sworn in by deponent befor e the public authority after she was duly identified by an Advocate at Kamrup, G uwahati Court. The petitioner has challenged the genuineness of her signatures o nly appearing on the face of the Affidavit. As per rules/procedure for swearing of an affidavit, the deponent is required to be present in person before the Mag istrate/concerned authority and as such it is presumed that the signatory to the affidavit should have been present in person for verification by the Magistrate before she put her signature on affidavit. More so, the signature of the Advoca te who identified her and the Magistrate concerned has not been challenged. In view of the above facts and circumstances of the case, the contents and the s ignatures on the Affidavit cannot apparently be disbelieved unless proved otherw ise and as such, the petitioner may approach the competent Court of law to get t he affidavit cancelled if so desired. The Tribunal appears to have no jurisdicti on to decide the genuineness of this document, when forgery has been pleaded. It is also observed from the record that the defendant No. 3 who is the husband of defendant No. 4 has also filed an Affidavit dated 06.12.2005 which is also swor n before the Special Judicial Magistrate, Kamrup, Guwahati and duly identified b y Sri Abijit Roy, Advocate wherein the deponent has stated that :- (cid:28)That the deponent is the absolute legal owner of a land measuring 1 katha (2.68 (cid:28)Are (cid:29)) covered by Dag No.227 (part) (old)/481 (n), KP Patta No. 123 of vill. Ul ubari of Ulubari Mouza, Dist-Kamrup, Guwahati, Assam. That the possession, right title and interest of the said land is enjoyed by this deponent. The said land is situated within the urban areas of Guwahati, Assam. This is true to my knowle dge. (cid:29) It is also observed from the record that the petitioner has filed a FIR on 24.04 .2012 in the Paltan Bazar Police Station, Guwahati wherein she has made allegati on against the defendants No. 1 and 2 and the officials of the bank regarding th e fraud and forgery but neither she has specifically stated about the Affidavit dated 12.12.2005 which allegedly bears her forged signature nor she has made a c omplaint against the defendant No. 3 who has filed this document to the applican t bank. She has also not challenged this Affidavit in the FIR lodged by her in t he Police Station for the reasons best known to her. The Tribunal will however, examine the legality of creation of the mortgage relating to her share in the pr operty while delivering the final judgment/order on the basis of the record avai lable in the file including Ext. A-10. In view of the above, I do not find any force in the contention of the defendant No. 4 made in her petition No. 141/2013 and as such, the petition No.141/2013 d eserves to be dismissed. Thus, the petition No. 141/2013 filed by the defendant No. 4 being dated 08.03.2 013 is hereby disposed of as dismissed. (cid:29) As can be seen from the above, the case is at an interlocutory stage and at this stage, the writ court would not like to interfere with the proceedings of OA No . 98/2009. Moreover, from a perusal of the above order, it is evident that conte ntion of the petitioner regarding mortgage of the property to the extent of her share would be given due consideration by the DRT at the time of passing of fina l order. Having regard to the above, this Court is not inclined to entertain the writ pet ition at this stage. Writ petition is, accordingly, dismissed.