The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.70 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) State Bank of India Kumari Mamata Das Appeared in this case:- For Appellant For Respondent : : -versus- …. …. Appellant Respondent Mr. P.V. Balakrishna, Advocate Mr. D.P. Dhal, Sr. Advocate Assisted by Mr. M.K. Agarwal, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 28.08.2024 / date of judgment :04.09.2024 A.C. Behera, J.
Legal Reasoning
This 2nd appeal has been preferred against the confirming judgment. 2. The appellant-Bank in this 2nd appeal was the sole plaintiff before the trial court in the suit vide M.S. No.08 of 1996 and appellant before the 1st appellate court in the 1st appeal vide M.A. No.09 of 1998. // 2 // The respondent in this 2nd appeal was the defendant before the trial court in the suit vide M.S. No.08 of 1996 and respondent before the 1st appellate court in the 1st appeal vide M.A. No.09 of 1998. 3. The suit of the plaintiff-Bank(appellant in this 2nd appeal) against the defendant(respondent in the 2nd appeal) before the trial court vide M.S. No.08 of 1996 was a suit for realization of money. 4. As per the case of the plaintiff-Bank, the defendant had applied before it for the sanction of a loan for Rs.20,000/- in her favour through DIC, Mayurbhanj in order to run a grocery shop and accordingly, as per the recommendation of DIC, Mayurbhanj, loan of Rs.20,000/- was sanctioned by the plaintiff-Bank in favour of the defendant and the defendant availed such loan, i.e., Rs.20,000/- on dated 08.04.1985 by executing a composite term agreement before the plaintiff-Bank accepting the modes and manner of repayments of the said loan. Subsequent thereto, though, she (defendant) executed revival letters acknowledging the loan outstanding dues against her(defendant), but, she(defendant) did not repay the loan amount. For which, the plaintiff- Bank approached the civil court by filing a suit vide M.S. No.08 of 1996 against the defendant praying for realization of the loan amount with interest in total Rs.50,490/-. Page 2 of 11 // 3 // 5. Having been noticed from the trial court in the suit vide M.S. No.08 of 1996, the defendant contested the same by filing her written statement taking her stands therein that, she(defendant) has never availed any loan from the plaintiff-Bank by executing any document before the plaintiff-Bank and as such, she(defendant) totally denied any due of the plaintiff-Bank on her. For which, the question of repayment of any money to the plaintiff-Bank by her(defendant) does not arise, because, she(defendant) has not received any loan either on 08.04.1985 or at any point of time from the plaintiff-Bank. So, the suit of the plaintiff-Bank against her is liable to be dismissed with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed by the trial court in the suit vide M.S. No.08 of 1996 and the said issues are:- I S S U E S 1. Has the plaintiff any cause of action to bring the suit? 2. Is the suit maintainable in its present form? 3. Is the suit barred by law of limitation, estoppel, waiver and acquiescence? Page 3 of 11 // 4 // 4. Was the name of the defendant approved by the District Industries Center, Mayurbhanj, Baripada to the plaintiff Bank for sanction of composite term loan? 5. Was any composite term loan agreement executed by the defendant in favour of the plaintiff Bank and was any loan availed by the defendant? 6. Is the defendant liable to repay any amount to the plaintiff Bank? 7. To what other relief or reliefs the plaintiff is entitled to? 7. In order to substantiate the aforesaid relief sought for by the plaintiff-Bank against the defendant in the suit vide M.S. No.08 of 1996, the plaintiff-Bank examined three witnesses on its behalf including its Bank Officials as P.Ws.1 to 4 and relied upon the documents vide Exts.1 to 9. On the contrary, in order to defeat/nullify the suit of the plaintiff- Bank, the defendant examined one witness as D.W.1. 8 After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered the issue nos.3 to 7 against the plaintiff-Bank and in favour of the defendant and basing upon the findings in issue nos.3 to 7 against the plaintiff-Bank and in favour of the defendant, the trial court dismissed Page 4 of 11 // 5 // the suit of the plaintiff-Bank vide M.S. No.08 of 1996 against the defendant, without cost as per its judgment and decree dated 18.09.1998 and 15.10.1998 respectively assigning the reasons that, the plaintiff- Bank has not been able to establish through legally admissible evidence about the disbursement of any loan in favour of the defendant through execution of any document, for which, the plaintiff-Bank is not entitled for the recovery of any amount from the defendant. 9. On being dissatisfied with the aforesaid judgment and decree passed by the trial court in dismissing the suit of the plaintiff-Bank vide M.S. No.08 of 1996, the plaintiff-Bank challenged the same by preferring the 1st appeal vide M.A. No.09 of 1998 being the appellant against the defendant arraying her(defendant) as respondent. After hearing from both the sides, the 1st appellate court dismissed to that 1st appeal vide M.A. No.09 of 1998 of the plaintiff-Bank on contest against the defendant as per its judgment and decree dated 15.10.2001 and 07.11.2001 respectively concurring / accepting the findings and observations made by the trial court in M.S. No.08 of 1996 against the plaintiff-Bank. 10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide M.A. No.09 of 1998 of the plaintiff-Bank passed by the 1st appellate court, the plaintiff-Bank challenged the same Page 5 of 11 // 6 // by preferring this 2nd appeal being the appellant against the defendant arraying her (defendant) as respondent. 11. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:- “1. Whether the defendant can deny the loan taken by her in view of the clear finding that, the said defendant had availed the loan? 2. Whether the court has always power to examine the signatures on the documents without insisting upon examination by handwriting expert. Once the loan having been taken by the defendant, the loan amount has to be repaid?” 12. I have already heard from the learned counsel for the appellant(plaintiff-Bank) and the learned counsel for the respondent(defendant). 13. When, as per the findings and observations made by the trial court and 1st appellate court in their respective judgments and decrees basing upon the pleadings and evidence of the parties, the above both the substantial questions of law are interlinked having ample nexus with each other, for which, in order to have a just decision of this 2nd appeal, the above both the formulated substantial questions of law are taken up together for their discussions hereunder:- It is the specific pleadings of the plaintiff-Bank that, loan of Rs.20,000/- was disbursed by the plaintiff-Bank in favour of the Page 6 of 11 // 7 // defendant on dated 08.04.1985 through execution of a composite term loan agreement vide Ext.1 by the defendant in favour of the plaintiff- Bank hypothecating the grocery items to the plaintiff-Bank, to which, the defendant has denied in her written statement by stating specifically that, she (defendant) has not executed any agreement in favour of the plaintiff-Bank for the sanction of any loan in her favour and she(defendant) has not received any loan at any time from the plaintiff- Bank. 14. The above pleadings of the defendant is clearly and unambiguously going to show that, the so-called signatures, if any, in the so-called composite term loan agreement relied by the plaintiff-Bank vide Ext.1 are not the signatures of the defendant, because, she(defendant) has not executed any agreement before the plaintiff-Bank for the sanction of any loan in her favour at any point of time. As such, the defendant had taken the plea that, the signatures, if any, in the Ext.1 relied by the plaintiff-Bank as the signatures of the defendant are the forged signatures, but, not the real signatures of the defendant. 15. When the pleadings of the defendant are very clear and specific that, she(defendant) has not at all executed the so-called loan agreement vide Ext.1, on which, the plaintiff-Bank is relying to fasten the liability Page 7 of 11 // 8 // on the defendant, then, the burden lies upon the plaintiff-Bank to prove due/proper execution of the so-called Ext.1 by the defendant. 16. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) AIR 1995(Orissa)-270 : Nirakar Das vrs. Gourhari Das and others—Burden of proof—Civil suit—Plaintiff must establish his own case—Mere failure of the defendant to establish his case, plaintiff case would not succeed automatically.(Para-7)
Legal Reasoning
2011(I) OLR-1035, 112(2011) CLT-259 and 2011(I) (ii) OJR-848 : Smt. Pakini @ Dalimaba Naik and others vrs. Gajendra Patel (dead), Akshya Kumar Patel and others— Document under challenge—Burden lies on a party to prove execution of a document, on which he relies.(Para-10) (iii) 2000(I) OLR-92 : Nanda Kishore Mohapatra and others vrs. Binayak Mishra and another—Document— Signature of the executant—Pleadings is clear that, the signature is forged, it should be sent for examination by handwriting expert.(Paras-7 and 8) 17. Here, in this suit/appeal at hand, when from the very beginning, i.e., in the pleadings of the defendant, she (defendant) has specifically denied the execution of any document in favour of the plaintiff-Bank for the disbursement of any amount by the plaintiff-Bank in her favour as loan, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, it was incumbent upon the plaintiff- Bank to prove due/proper execution of the so-called agreement vide Ext.1 through examination of the disputed signatures in that so-called Ext.1 with the admitted signatures by the handwriting expert. But, Page 8 of 11 // 9 // neither the plaintiff-Bank, nor the trial court has done so. For which, it is the concurrent findings of the trial court and 1st appellate court that, the plaintiff-Bank has not been able to prove the execution of the so-called composite term loan agreement vide Ext.1 by the defendant in favour of the plaintiff-Bank for the disbursement of any money in her favour as loan. 18. That apart, though the disputed agreement was marked as Ext.1 on behalf of the plaintiff-Bank during trial before the trial court through its witness, but, any disputed signatures therein was neither marked nor proved. So, the plaintiff-Bank has also not been proved any signature of the defendant on the Ext.1 in order to establish the execution of the same by the defendant. 19. During trial of the suit, through, the plaintiff-Bank has adduced evidence through its witnesses stating that, the loan was disbursed in favour of the defendant through different suppliers in the form of grocery articles/items, but, neither any supplier of grocery items was examined nor any voucher or bill of any supplier of grocery items in the name of the defendant was filed or proved. As such, the plaintiff-Bank has not been able to establish the disbursement of any loan in favour of the defendant. For which, the plaintiff-Bank has become failure to establish Page 9 of 11 // 10 // the relationship between plaintiff-Bank and defendant as creditor and debtor through legally admissible evidence. 20. On this aspect, the propositions of law has already been clarified in the ratio of the following decision:- 2017(II) CLR-111 (i) : UCO Bank, Bolangir represented by its Branch Manager, Bolangir Branch, Bolangir vrs. Bipin Bihari Pansari—Bank Loan—To fasten liability, relationship is to be proved by the Bank first laying foundations in creating the relations between the parties. 21. As per the discussions and observations made above, when the plaintiff-Bank had tried to fasten liability on the defendant on the ground of relationship between plaintiff-Bank and defendant as creditor and debtor by relying upon the sole document, i.e., so-called composite term loan agreement vide Ext.1 and when the plaintiff-Bank has not been able to prove the execution of so-called document vide Ext.1 by the defendant in favour of the plaintiff-Bank, then, at this juncture by applying the principles of law enunciated in the ratio of the decision referred to (supra), the plaintiff-Bank is not entitled for the decree for realization of any money from from the defendant. For which, the concurrent findings of the trial court and 1st appellate court in dismissing the suit of the plaintiff-Bank against the defendant cannot be held as erroneous. Page 10 of 11 // 11 // 22. Therefore, there is no justification under law for making interference with the concurrent findings of the trial court and 1st appellate court through this 2nd appeal filed by the appellant(plaintiff- Bank). For which, there is no merit in the appeal of the appellant. The same must fail. 23. In result, this 2nd appeal filed by the appellant (plaintiff-Bank) is dismissed on contest against the respondent(defendant), but, without cost. The judgments and decrees passed by the trial court and 1st appellate court in M.S. No.08 of 1996 and M.A. No.09 of 1998 respectively are confirmed. Judge Orissa High Court, Cuttack The 4th of September, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 05-Sep-2024 17:53:21 Page 11 of 11