Decided on March 23,2007



R.S. Tripathi, J. (Chairperson) - (1.) THIS appeal has been filed by Mr. Kashi Nath Mishra, appellant -defendant against a judgment dated 28th April, 2005 passed by Presiding Officer, D.R.T., Lucknow directing issuance of recovery certificate against the present appellant for a sum of Rs. 14,40,324/ - together with interest @ 18.10 per annum with quarterly rest from the date of the filing of the case till full realization of the dues and the Presiding Officer, D.R.T., Lucknow also directed the appellant not to transfer, alienate or create any third party interest or dispose of the mortgaged property in any manner whatsoever.
(2.) ACCORDING to the application filed by Canara Bank before D.R.T., Lucknow defendant No. 1 is a company doing business of Menthol in the name and style of Shri Krishna Industries. Defendant Nos. 2 and 3 were its partners and they approached to the Canara Bank for sanction of credit facility with regard to working capital and term loan and the bank sanctioned O.C.C. limit of Rs. 7.5 lacs on 26th June. 1998 against the hypothecation of the raw materials. Book Debts of Rs. 2.50 lacs was also sanctioned on the interest @ 16.07% per annum. Defendant No. 4, present appellant stood as a guarantor executing the agreement of guarantee, showing his liability of Rs. 2.50 lacs. The total amount of Rs. 9,60,189/ - were payanle by the defendants along with interest in the form of cash credit liability. A sum of Rs. 4,80,135/ - along with interest from 1st January, 2000 was paid. Before the Tribunal appellant Mr. Kashi Nath Mishra denied to have stood guarantor for the amount in question. He challenged his signatures on the so -called mortgage deed. He denied to have signed any document in connection with this loan and blamed that the bank officers in collusion with defendant Nos. 2 and 3 played fraud and after considering the affidavit led by both the parties, the impugned judgment has been passed holding that the appellant is liable to pay the amount in question as guarantor and feeling aggrieved against this judgment this appeal has been filed. I have heard the Counsel for the appellant and the Counsel for the respondent bank and have also gone through the record. The main grievance from the side of the appellant is that his application for obtaining expert's opinion on the documents of the guarantee has been rejected, illegally. According to the Counsel for the appellant he has not been afforded proper opportunity to lead evidence. Therefore, the judgment should be set aside affording him opportunity to lead evidence of Hand Writing Expert. Another argument from the side of the appellant is that in view of ruling Ashok Mahajan v. State of U.P. IV (2006) B.C. 578 (S.C.) : 2006 A.I.R. S.C.W. 4 Note 4925, the guarantor cannot be proceeded with for recovery until property of the principal borrower is first sold. According to him the principles of natural justice have been violated in this case.
(3.) AGAINST this the submission from the side of the respondent bank is that after rejection of the application for expert's opinion the appellant himself did nothing and the learned Presiding Officer has taken pains to go through the affidavits with regard to proof of signature of appellant on the documents of guarantee. On the basis of evidence available on the record, no effort was made to cross -examine the bank official before whom the signatures of appellant were obtained, although that officer has stated in his affidavit that the appellant signed these papers in his presence.;

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