Decided on March 03,2005



Pratibha Upasani, - (1.) THIS substantive appeal is filed by the appellants/Original defendant No. 5 being aggrieved by the judgment and Order dated 7.11.2003, passed by the learned PO of DRT, Bangalore, in O.A. No. 1248/1995 By the judgment and Order the learned PO allowed the OA with cost and ordered defendant Nos. 1 to 5 to pay to the applicant Bank jointly and severally sum of Rs. 17,84,2717- with subsequent interest at the rate of 21.5% p.a. with quarterly rests from the date of application till the date of realisation. He also gave certain consequential declarations and ordered issuance of Recovery Certificate in the above stated terms. Being aggrieved, only the original defendant No. 5 Mr. Shantilal Jain has preferred this appeal in this Appellate Tribunal. The original defendant Nos. 1 to 4 remained ex parte and it was only defendant No. 5 who had filed a written statement in the DRT.
(2.) I have heard Mr. S. Ravi, Advocate for the appellant and Mr. K. Ramasamy, Advocate for the respondent-Bank I have also gone through the proceedings which have been called from the DRT, Bangalore and, in my view, the learned PO was not correct in allowing the OA of the Bank as against defendant No. 5. . Defendant No. 5 has been arraigned in the OA by the Bank as a guarantor to the loan transaction. Case of the Bank is that defendant Nos. 2, 3,4 and 5, approached the Bank for sanction of Foreign Exchange Bills Purchase Advance/Credit facility. Defendant No. 1 is a proprietary concern, which deals mainly in export of silk fabrics. Defendant No. 2 Usha Jain, is the Proprietrix of this concern. Other defendants arc arraigned as guarantors including defendant No. 5. Defendant Nos. 1 to 4 remained ex parte despite due service upon them and did not choose to contest the matter in the DRT. Defendant No. 5 present appellant Shantilal Jain, however, appeared and filed his Written Statement. Right from the beginning it was the stand of defendant No. 5 that he never executed any guarantee deed and that his signature was forged on the said deed and he had nothing to do with the liability in question.
(3.) IN DRT, in support .of its case, the applicant Bank examined the Chief Manager of the applicant Bank Mr. Vinayak Kulkarni, as AW 1 through an Affidavit. He was extensively cross-examined by the defendant No. 5. Defendant No. 5 also examined himself as DW1 through an affidavit. Since it was the defence of defendant No. 5, that it was not his signature which appeared on the guarantee deed and that it was forged, the DRT sent the said disputed signature to the handwriting expert Mr. C. Ashwathappa, at Bangalore, who is an Assistant Director of Forensic Science Laboratory, Bangalore. The said disputed signature was sent along with the admitted signature on the income-tax returns of two years of defendant No. 5. IN the report submitted by the said handwriting expert, a categorical finding was given by him that the disputed signature and the admitted signature of Shantilal Jain, did not tally. He was also called as a witness to give his evidence and he was cross-examined by the Bank.;

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