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2019 Supreme(Del) 2348
IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Hemant Kumar Singhal - Petitioner
Versus
Indian Overseas Bank & Anr. - Respondents
CM(M) 1457 of 2019 and CM APPL. 44339 of 2019, 44340 of 2019
Decided On : 10-12-2019
For the Petitioner:Mr. H.S. Gautam, Advocate.
For the Respondents:Mr. Prem Chhetri, Mr. Promod Kumar and Ms. Sebika Lama, Advocates.
The bank's obligation to establish the genuineness of documents and the impermissibility of seeking rebuttal evidence to fill lacunae.
Headnote:
Recovery Suit - Indian Overseas Bank - Order XVIII Rule 3 CPC - [Order VII Rule 11, Order XVIII Rule 3 CPC] - The court discussed the permissibility of leading rebuttal evidence under Order XVIII Rule 3 CPC and the obligation of the bank to establish the genuineness of documents. The court held that the bank failed to discharge its onus and sought rebuttal evidence to fill lacunae, which was not permissible. The impugned order allowing rebuttal evidence was set aside.
Fact of the Case:
The Indian Overseas Bank filed a suit for recovery against two defendants, alleging that one defendant had taken a loan for a car and the other defendant had stood as a guarantor. The guarantor denied standing as a guarantor and alleged forgery.
Finding of the Court:
The court found that the bank failed to prove the genuineness of the documents and sought rebuttal evidence to fill lacunae, which was impermissible.
Issues: The issues included the permissibility of leading rebuttal evidence under Order XVIII Rule 3 CPC and the obligation of the bank to establish the genuineness of documents.
Ratio Decidendi: The court held that the bank's failure to discharge its onus and seeking rebuttal evidence to fill lacunae was impermissible under Order XVIII Rule 3 CPC.
Final Decision: The impugned order allowing rebuttal evidence was set aside, and the petition was allowed.
JUDGMENT :
Prathiba M. Singh, J.
1. The Petitioner/Defendant No. 2 - Mr. Hemant Kumar Singhal (hereinafter ‘Defendant No.2’) is aggrieved by the impugned order dated 17th August, 2019 passed by the ld. ADJ allowing the application under Order XVIII Rule 3 CPC for leading evidence in rebuttal and evidence of an expert witness.
2. The Respondent No. 1/Plaintiff - Indian Overseas Bank (hereinafter ‘Bank’) filed a suit for recovery of Rs.5,71,920/- along with interest against Respondent No.2/Defendant No.1 - Mr. Praveen Kumar Jain who had allegedly taken a loan vide application dated 2nd March, 2006 for a sum of Rs.6 lakhs. The same was for the purpose of purchase of a car – Ford Fiesta. It is the case of the Bank that the Defendant No.2 had stood guarantor for the said loan and that both the Defendants are therefore jointly and severally liable.
3. In the written statement, the case of Defendant No.2 was that he had taken a loan for purchase of a Honda City car in February, 2006 and had fully repaid the loan by 2009. When he had sought a No Dues Certificate in respect of the said loan, the same was not issued by the Bank. Defendant No.2 thereafter served notice dated 21st January, 2011 upon the Bank. In reply to the said notice dated 21st February, 2011, it was alleged by the Bank that Defendant No.2 had stood guarantor for the loan of Defendant No.1 which was denied by the Defendant No.2. The stand of Defendant No.2 was that Defendant No.1 may have produced forged signatures of Defendant No.2 and that he had never stood guarantor for any loan of Defendant No.1.
4. The following issues were framed in the suit:
“1. Whether the plaint is liable to be rejected under order 7 rule 11 of CPC? OPD.
2. Whether the plaintiff is entitled for decree of recovery of the suit amount? OPP.
3. Whether the plaintiff is entitled for pendentelite and future interest on decreetal amount? if so, at what rate? OPP.
4. Relief.”
5. Defendant No.1 – the principal borrower, was proceeded ex-parte in the suit. The Bank led the evidence of its Senior Manager – Mr. Vijay Kumar Mehra, PW-1. Defendant No.2 thereafter led evidence. He himself appeared as DW-1 and he also led the evidence of handwriting expert as DW-3. DW-2 was a witness who appeared from the Police Station who was investigating the complaint of forgery. DW-3 – Deepak Jain, in his evidence, stated that he is a handwriting expert since 1990. He submitted a report after comparing the signatures of Defendant No.2. DW-3 was not cross-examined initially by the Bank. At that stage an application was moved by the Bank seeking permission to cross-examine the said witness. In the said application, the Bank also sought permission to lead evidence in rebuttal. The said application was rejected by the Trial Court vide order dated 28th March, 2018. The said order reads as under:
“Arguments heard on the applications of the plaintiff pending on record.
In its application u/o 18 rule 17 CPC, the plaintiff is seeking opportunity to cross-examine DW2 Deepak Jain, the handwriting expert as the opportunity was closed on 25.01.2017. Keeping in view the totality of the circumstances, one last opportunity is granted to the plaintiff to cross-examine DW2 Deepak Jain subject to costs of Rs.4,000/- payable to defendant No. 2 and the diet money shall also be paid by the plaintiff.
In the remaining application u/o 18 Rule 3 CPC, the plaintiff is seeking to produce its own handwriting expert in rebuttal to the examination of DW2 Deepak Jain, handwriting expert by the defendant No. 2. The way plaintiff is trying to examine its own handwriting expert is not rebuttal evidence but is an endeavor to fill the lacunae of the case. The defendant No. 2 had always been defending the case on the ground that his signatures on the alleged loan documents were forged by defendant No. 1. Meaning thereby, it was always within the knowledge of the plaintiff that the defendant No. 2 is disputing his signatures whereby the plaintiff ought to have examine i
