M.A. Mohammed Ashraf and A.K. Mohammed v. Union Bank of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938 AS.No. 271 of 1992 (B) ----------------------AGAINST THE JUDGMENT AND DECREE DATED 8.8.1991 IN OS NO.325/1987 OF PRINCIPAL SUB COURT, PARAVUR. APPELLANTS IN A.S./PLAINTIFFS IN SUIT: ------------ 1. M.A.MOHAMMED ASHRAF, SON OF ABOOBACKER, NOW RESIDING AT VALIYAVEETTIL HOUSE, S.R.M.ROAD, COCHIN-18. 2. A.K.MOHAMMED, SON OF A.A. KHADERKUNJU, KOLLAMPARAMBIL HOUSE, THANNIPADAM, N.PARAVUR. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR (SENIOR ADVOCATE) SRI.P.B.KRISHNAN RESPONDENTS IN A.S./DEFENDANTS IN SUIT -------------- 1. THE UNION BANK OF INDIA, REPRESENTED BY THE MANAGER, PERUMBAVOOR BRANCH, PERUMBAVOOR. 2. M.A.ABDUL RAHIM, SON OF ABOOBACKER, PROFESSOR, ST.PAUL'S COLLEGE, KALAMASSERY. 3. R.CHANDRASEKHAR, AVOOD HOUSE, NANTHYATTUKUNNAM, PARAVUR. R1 BY ADV. SRI.V.SANKARA RAJA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14.10.2016, ALONG WITH AS. NO. 289/1992 AND AS. NO. 295/1992, THE COURT ON 01-11-2016 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------A.S. Nos.271, 289 and 295 of 1992 -------------------------------------Dated this the 1[st] day of November, 2016** ## **COMMON JUDGMENT** Three suits were jointly tried as in in all the suits, there were commonality in the contentions and identity of the parties. All the three suits were dismissed with costs by the trial court. Hence these three appeals by the plaintiffs. 2. In all the suits, the defendants 1 and 2 are common. In two suits, two different persons are arrayed as the 3[rd] defendant. These appeals are also heard and disposed by this common judgment for the sake of convenience. For clarity of expression, the parties are hereinafter referred to as the plaintiffs and defendants. 3. Heard Shri K.Jayakumar, learned Senior Counsel for the appellants and Shri V.Sankara Raja, learned counsel for the 1[st] respondent, viz., the Union Bank of India. 4. Facts succinctly stated are as follows: 1[st] defendant is a nationalized bank having branches at many places including Perumbavoor. On the initiative of the 2[nd] defendant, a company was incorporated by name “Bees Industrial Complex Limited” (in short, “the Company”). 2[nd] defendant was the managing director. Shareholders of the 2 AS Nos.271, 289 & 295 of 1992 company were the employees in one or the other unit of different industrial units brought under the control of the said company. Plaintiffs in the suits were the employees of the company. As managing director of the company, the 2[nd] defendant had a dominant position over the plaintiffs and the 3[rd] defendants in the suits. Accordingly, they were compelled to subscribe themselves as persons ostensibly in control and charge of several ventures started by the 2[nd] defendant. But, in reality, it was the 2[nd] defendant, who had exercised exclusive control and management of several sub units. Plaintiffs and 3[rd] defendants in the suits were compelled by the 2[nd] defendant to execute hypothecation bonds and promissory notes in favour of the 1[st] defendant bank for availing financial assistance. As the plaintiffs and 3[rd] defendants were not in a position to resist the demand of the 2[nd] defendant, they executed some documents. Fact that the plaintiffs and 3[rd] defendants were only puppets in the hands of the 2[nd] defendant was known to the 1[st] defendant bank. Defendants 1 and 2 in collusion with each other, compelled the plaintiffs and 3[rd] defendants in all the suits to execute various documents. Thereafter the 1[st] defendant bank filed three suits, viz., O.S.Nos.205 of 1978, 206 of 1978 and 207 of 1978 against the plaintiffs and 3[rd] defendants in the suits claiming recovery of certain amounts with future interest and costs. According to the plaintiffs, they were not aware of the suits. They did not receive any summons from the AS Nos.271, 289 & 295 of 1992 3 court. It is seen from the suit records that the defendants in the suits filed by the 1[st] defendant bank had entered appearance and prayed for time to file their written statements. It could also be seen that time was granted on various occasions. The records revealed that finally on 25.05.1979, a written statement admitting the plaint claim had been purportedly filed. According to the plaintiffs, they were not even aware of filing of the suits. The entire proceedings relating to filing of the suits, passing of the decrees and execution proceedings are vitiated by fraud. The proceedings are null and void, non est and not binding on the plaintiffs. Hence the plaintiffs in the suits sought for a declaration that the decrees passed in the suits mentioned above, filed by the 1[st] defendant bank, and all subsequent proceedings thereon, including the execution proceedings, are null and void and not binding on them. 5. 1[st] defendant bank alone contested the suit. In the written statement, it is contended that the suits are malafide actions. It is specifically contended that the suits are barred by law of limitation. According to the averments in the written statement, some of the defendants in the suits filed by the bank were the proprietors of the establishments, which availed bank loans and the plaintiffs in the present suits (other defendants in the earlier suits) were sureties for the loans. They have signed all the necessary papers for availing loans and the 4 AS Nos.271, 289 & 295 of 1992 amounts were disbursed to them. As they violated the terms of contract and defaulted repayment, the bank filed three suits for recovery of amounts. The defendants in the suits had accepted summons and appeared through an advocate of their choice. They prayed for time to file written statement and finally filed a statement confessing judgment. Trial court decreed the suits as prayed for on the basis of admission of the claim. The decrees obtained by the bank were put to execution. The present suits have been filed by the plaintiffs in collusion with the principal borrowers, who were the defendants in the earlier suits. The plaintiffs in the suits had signed various documents knowing that they were standing guarantors for the borrowers. The plaintiffs are not entitled to get any of the reliefs claimed. 6. Learned trial Judge framed relevant issues in all the three suits. On the side of the plaintiffs, four witnesses were examined and one witness testified for the 1[st] defendant. Exts.A1 to A8, B1 to B12, C1 to C4 and X1 to X3 are the documents produced and marked. 7. The trial Judge dismissed the suits mainly for two reasons. Firstly, he found that the plaintiffs (who were defendants in O.S.Nos.205 of 1978, 206 of 1978 and 207 of 1978) had entered appearance in the suits filed by the 1[st] defendant bank and confessed judgment by filing a written statement. Therefore, the declaration sought for cannot be allowed in 5 AS Nos.271, 289 & 295 of 1992 favour of the plaintiffs. Another reason for dismissing the suits is that they are hopelessly barred by limitation. I shall examine these contentions carefully. 8. Learned Senior Counsel appearing for the plaintiffs contended that the trial court erred in finding that the plaintiffs had appeared in O.S.Nos.205 of 1978, 206 of 1978 and 207 of 1978, the suits filed by the 1[st] defendant bank and admitted the claim. It is the contention of the learned Senior Counsel that the trial court failed to see that the plaintiffs were not served with summons in the earlier suits and they never instructed any lawyer to appear on their behalf. It is also the contention of the plaintiffs that they were completely unaware of the proceedings in the earlier suits till the execution proceedings were initiated. For these reasons, the plaintiffs would contend that the judgments and decrees passed by the trial court are legally unsustainable. 9. As I am dealing with first appeals, it is essential to reappreciate the evidence adduced. 10. PW1 is the 1[st] plaintiff in O.S.No.327 of 1987 and 2[nd] plaintiff in O.S.No.329 of 1987. In the chief examination, he deposed in accordance with the plaint averments. According to him, he was only a worker under the 2[nd] defendant. 2[nd] defendant was the managing director of Bees Industrial Complex, a limited company. PW1 was a shareholder and an 6 AS Nos.271, 289 & 295 of 1992 employee in the company. He was a building supervisor. According to him, his works were controlled and salary was paid by the 2[nd] defendant. As subsidiary units of the above company, Bees Printers, Bees Wood Works, Bees Power Looms, Bees Textile Processing Centre, Bees Textiles, etc. were functioned. All these units were managed by the 2[nd] defendant. Loans from the 1[st] defendant bank were availed for the subsidiary units. He stood guarantor for the 2[nd] defendant as the latter insisted. According to him, he never went to the bank after signing the guarantee agreement and he never received any notice from the bank thereafter. Likewise, he did not get any summons or notice in the previous suits filed against him. He never engaged a lawyer to contest the case. So also he did not file any written statement in the suits admitting the plaint claim. PW1 got information from the 2[nd] defendant about decreeing of the suits. Then he went to the court and with the help of a lawyer examined the records. He found a written statement in the case records purportedly signed by him. The signatures seen on the vakalath and the written statement are not that of PW1. He has not given any vakalath to PW3, who is said to have appeared for the plaintiffs in the earlier round of litigation. He has no acquaintance with PW3. According to him, the decrees in the earlier suits were obtained fraudulently. 11. PW2 is the 1[st] plaintiff in O.S.No.325 of 1987 and the 3[rd] AS Nos.271, 289 & 295 of 1992 7 plaintiff in O.S.No.329 of 1987. He is the brother of the 2[nd] defendant. He also testified that the 2[nd] defendant availed loans and he was caused to execute some documents. In the earlier cases, he has not filed any vakalath or written statement. At that time he was out of India. He never engaged PW3, a lawyer, who is said to have appeared in the earlier suits. 12. PWs 1 and 2 were subjected to cross-examination. Even though vakalaths and written statements in the earlier suits were confronted to these witnesses, they denied their signatures. It is pertinent to note that none of these witnesses have disputed the factum of signing agreements in favour of the 1[st] defendant bank for availing loans involved in the three suits filed by the bank. Their contention is only that they were unaware of the legal proceedings pursuant to the availment of the loans. 13. PW3, Advocate Sri.Abdul Azeez had been examined at length. Even in the chief examination, he stated that the 2[nd] defendant in the suits was a person familiar to him. In fact PW3 had conducted some of his cases earlier. It is the definite version in the chief examination itself that the defendants in the suits filed by the 1[st] defendant bank (plaintiffs and 3[rd] defendants in these cases) approached him and he was informed that PW2 was about to go abroad and they were willing to confess judgments in the cases filed by the bank. PW3 deposed that he prepared separate written statements for each case and got them signed. Thereafter they AS Nos.271, 289 & 295 of 1992 8 were filed in court. It is his version that PWs 1 and 2 have engaged him by signing vakalaths. It is the emphatic testimony of PW3 that the plaintiffs were fully aware of the filing of three suits by the 1[st] defendant bank and they with full knowledge admitted the plaint claim. It is interesting to note that all these aspects have been elicited from PW3 in his chief examination itself. Notwithstanding that he was cross-examined with the permission of the court by invoking Section 154 of the Evidence Act, nothing worthwhile could be elicited to discredit his testimony. The lower court rightly placed reliance on the testimony of PW3 to find that he was engaged by the plaintiffs in the previous suits filed by the bank and as instructed by them, he had filed written statements admitting the plaint claims. 14. It is seen from the records that PW3 had entered appearance for the present plaintiffs and other defendants in the earlier suits and sought time for filing written statements. After two-three adjournments, they filed written statements in the respective suits confessing judgments. 15. PW3 produced and proved Exts.X1 to X3. Ext.X1 is the notice issued by the lawyer of the 1[st] defendant bank against the plaintiffs in O.S.No.325 of 1987 on 20.08.1978. Ext.X2 is the copy of the summons served on the defendants in O.S.No.206 of 1978. Along with the summons, copy of the plaint is also produced. Ext.X2 file contains a copy of the written statement filed by the defendants admitting the plaint claim. 9 AS Nos.271, 289 & 295 of 1992 They had also requested for refund of half the court fee and costs at concessional rate. Ext.X3 is the copy of the summons issued to the defendants in O.S.No.207 of 1978. It contains a copy of the plaint and written statement and also notices issued by the bank. All these documents were produced by PW3 to fortify his contention that he had appeared for the defendants in the suits filed by the bank as per their instructions. There is no reason to discard these documents. Further, how these papers reached in the hands of PW3, without being entrusted by the defendants, has also not been explained by the plaintiffs. 16. PW4 was working as director in one of the subsidiary units of Bees Industrial Complex Limited. He was cited to prove that the plaintiffs signed all the papers for availing the loans as instructed by the 2[nd] defendant. As mentioned earlier, there is no dispute regarding the fact that the plaintiffs stood guarantors for the loans availed from the 1[st] defendant bank. Their grievance is only against passing of the decrees allegedly behind their back. On an over all assessment of the evidence adduced on the side of the plaintiffs, I am of the view that the trial Judge is perfectly justified in finding that the plaintiffs not only availed the loans, but also were aware of the fact that the bank had filed suits for recovery of the amounts advanced. Notices were also issued in execution proceedings. All these facts were properly appreciated by the trial Judge to arrive at a conclusion 10 AS Nos.271, 289 & 295 of 1992 that the plaintiffs were aware of the proceedings at the appropriate time. 17. Another important point raised by the learned counsel for the plaintiffs is that the trial court ignored Exts.C1 to C4. Ext.C1 is the written statement filed in O.S.No.206 of 1978 with disputed signatures thereon. Ext.C2 is the copy of the written statement filed in O.S.No.205 of 1978. The signatures therein are also disputed. Likewise, Ext.C3 is the copy of the written statement in O.S.No.207 of 1978. These documents were forwarded to an expert. It is seen that Prof. B.B.Kashyap examined these documents and compared the disputed signatures with the admitted signature of the plaintiffs and the supporting defendants. The expert in his report observed that the questioned signatures had been written slowly, carefully, hesitatingly and in a laboured manner. Questioned signatures contained a lot of unnatural tremor, thick and blunt terminal strokes. There is marked difference in the movement of writing quite different from the admitted signatures. Pen pressure was heavy in the questioned signatures, but it was medium in the admitted signatures. For these reasons among others, it was opined that the four disputed signatures marked were not written by the persons who provided the admitted signatures. In otherwords, the questioned signatures were forged ones. 18. Learned Senior Counsel contended that the court below did not mention any reason for discarding the contents of the report submitted AS Nos.271, 289 & 295 of 1992 11 by the expert. Learned counsel appearing for the 1[st] defendant contended that the trial court and this Court are not bound to accept the opinion of the hand writing expert as direct evidence in these cases would convincingly show that the plaintiffs themselves have subscribed their signatures to the written statements confessing the claims in the previous suits. 19. The lower court considered the issue regarding the acceptability of Exts.C1 to C4 in paragraphs 20 and 21 of its judgment. Relying on the evidence of PW3 and the improbabilities in the case of PWs 1 and 2, the court below repelled the expert's report, viz., Ext.C4. Legality of this act of the trial court is seriously challenged by the learned Senior Counsel. 20. Section 45 of the Evidence Act, 1872 (in short, “the Act”) deals with opinions of experts. It reads as follows: _“_ _**Opinions of experts** .- When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”_ The plain meaning of Section 45 of the Act is that the court, in order to form an opinion upon a point of foreign law or of science or art or as to identity of 12 AS Nos.271, 289 & 295 of 1992 handwriting or finger impressions, the opinions upon that point of persons specially skilled in any of the matters mentioned above are relevant facts. Supreme Court in **State v. S.J.Choudhry (AIR 1996 SC 1491)** has held that opinion of such experts is admissible in evidence as relevant facts by virtue of Section 45 of the Act. 21. Section 47 of the Act deals with opinion as to handwriting. It reads as follows: _“_ _**Opinion as to handwriting, when relevant** .- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact._ _Explanation.- A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by the person in answer to documents written by himself or under his authority and addressed to the person, or when, in the ordinary course of business, documents purporting to be written by the person have been habitually submitted to him.”_ Section 45 of the Act makes relevant the opinion of experts or persons 13 AS Nos.271, 289 & 295 of 1992 skilled in some special branch of learning or trade or profession. But the opinion of ordinary witnesses become relevant by virtue of Section 47 of the Act. 22. Section 73 of the Act authorises comparison of signature, etc. with others admitted or proved. It reads as follows: ## _“_ _**Comparison of signature, writing or seal**_ _**with others admitted or proved** .- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose._ _The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person._ _This section applies also, with any necessary modification to finger impressions.”_ 23. Learned counsel appearing for the 1[st] defendant contended that opinion of the handwriting expert requires corroboration. Supreme 14 AS Nos.271, 289 & 295 of 1992 ## Court in **Murarilal v. State of M.P. (AIR 1980 SC 531** ) has held as follows: _“There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence through a doubt, the uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.”_ 24. Another provision relevant in this context is Order XXVI Rule 10A of the Code of Civil Procedure, 1908 (in short, “the Code”). It reads as follows: ## _“_ _**R.10A. Commission for scientific**_ _**investigation** .-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it_ 15 AS Nos.271, 289 & 295 of 1992 _thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court._ _(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.”_ 25. Rule 9 of Order XXVI of the Code deals with commissions to make local investigations. Rule 10 of the said Order deals with the procedure of the commissioner. Order XXVI Rule 10(2) of the Code says that the report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record. It is provided therein that the court or, with the permission of the court, any of the parties to the suit may examine the commissioner personally in open court touching any of the matters referred to him in his report. It is clear therefore that both the court and the parties, with the permission of the court, have a right to insist on examination of the expert commissioner. A learned single Judge of this Court has considered this question in **Kannan v. Nanu (1989 (2) KLT 288)** . The law laid down is as follows: _“In view of the newly introduced R.10A to_ 16 AS Nos.271, 289 & 295 of 1992 _O.26 C.P.C. read along with R.10, the report shall be evidence in the suit and shall form part of the records even without examination of the experts. Examination of the experts is not a condition precedent to admissibility of the report even though the court or with its permission any of the parties may examine the experts. That does not mean that with or without the examination of the expert the court is bound to accept the opinion as substantive evidence and act on it.”_ From the above discussion, it is evident that the opinion of an expert can be accepted even without examining the expert. However, when there is direct evidence on a point, which is contrary to the opinion of the expert, it is always safe to insist on the examination of the expert so that the party affected adversely will get an opportunity to challenge the contents of his report and the reasons mentioned by him for arriving at a conclusion. Examination of a handwriting expert is all the more important for the reason that the Supreme Court in **Murarilal'** s case (supra) and later decisions has held that handwriting examination is not a well developed science. Therefore, without examining the handwriting expert to prove Ext.C4, especially in the light of convincing direct evidence on the point, the trial court was justified in discarding Ext.C4 report. 26. Discussions made above lead me to an unstoppable AS Nos.271, 289 & 295 of 1992 17 conclusion that the plaintiffs were fully aware of the filing and proceedings in the earlier suits instituted by the 1[st] defendant bank. They have conceded the claims and suffered decrees. The decrees were put to execution. The court below is therefore right in relying on Article 59 of the Limitation Act, 1963 to find that the suits are hopelessly barred by limitation. I find no reason to interfere with the findings of the court below on the above mentioned points. In the result, these appeals are found to be devoid of any merit. Hence, they are dismissed with costs to the 1[st] defendant bank. ## **A. HARIPRASAD, JUDGE.** ## **cks** AS Nos.271, 289 & 295 of 1992 18 ## **A.HARIPRASAD, J.** **A.S.Nos.271, 289 & 295 of 1992** ## **JUDGMENT** **1[st] November, 2016.**