INDIAN BANK Vs. SATISH CHAND BABBAR

JUDGEMENT

(1.) THE plaintiff/Bank filed a suit on 15.12.79 for recovery of Rs. 86054.88 on the allegations that on the request of the defendant the over draft facility was provided to the plaintiff with the specific stipulation of payment of interest at the rate of 16 1/2%. According to the Bank, the plaintiff was under dues of Rs. 5,1751.30 on 29.11.75, as the defendant was unahle to repay at his request on hypothecation security a limit of Rs. 50,000/ - was granted to him. The defendant executed the documents. On 28.1.77, the defendant deposited Rs. 41.40 and (hereafter deposited nothing. According to the Bank on 31.12.77, he was under the dues of Rs. 61600.57 and on the date of the suit he was liable to pay Rs. 86054.88.

(2.) THE defendant in the written -statement contended that the plaintiff unnecessarily provided the over draft facility and was not entitled to any interest. He also contended that the defendant did not enter into any agreement for payment of the interest. According to him on 12.7.76, he obtained a sum of Rs. 50000/ - only but did not make any request for grant of hypothecation limit. Denying the material facts and his liability to pay the amount, he submitted that there was no cause of action and the suit was barred by limitation.

(3.) SHRI R.P. Agrawal, learned counsel for the appellant contended that the Court below was wrong is dismissing the suit as barred by limitation because the suit was filed on 17.12.79 which by no stretch of imagination could beheld to be barred by limitation. According to him the last transaction took place on 28.1.77, therefore, the suit would not be barred by limitation. He also submitted that as the document of hypothecation was executed on 29.12.76, the suit filed on 17.12.79 could not be held to be barred by limitation. From the evidence on record, it appears that Es. P/1 was executed on 29.12.76. Ex. P. 1 is a promissory note for a sum of Rs. 50.000/ -. Ex. P/2 is an agreement for demand/cash credit on the hypothecation of movable property. A perusal of Ex. P/2 would show that it is incomplete document. Page No. 1 of Ex. P/2, merely says that Satishchand, the defendant, a partnership firm registered under the Indian Partnership Act and carrying on business at Bhopal and Messrs (...........) accompany registered under the Companies Act, 1956 is executing the document. From this document, it does not appear that Satish Chand has affixed his signature on this document as a partner of the firm or as some authorised agent of the company registered under the Companies Act. The document Ex. P/2 on its second page shows that there are no terms mentioned on the document and where the documents typographical material "it is agreed as follows : - "there is a gap of about 5 inches but nothing is written and thereafter the signatures of the defendant are appended. The perusal of the document would clearly show that it cannot be termed as a hypothecation agreement. Then we have a printed form annexed to Ex. P.2 which proves for certain conditions, the document is said to have been executed on 29.12.76. The document clearly provides that the borrower's good produce and merchandise described in general terms in the Schedule to the document would be deemed to be hypothecated property. On the last page of this annexed document, the word 'Schedule' is printed but there is nothing written under the heading of Schedule. Ex. P.3 is the stock statement lying at Nishatpura Timber Market. The value of the timber is shown to be Rs. 83600/ - under the signature of Satishchand. The date 29.12.76 has been written by some body. The writing detailing the stock and the date are different. The Schedule of the goods hypothecated with Indian Bank is page No. 5 of Ex. P/2. This document is absolutely blank and at its foot the signature of the defendant is to be found. I am unable to understand as to how on strength of these documents an agreement for demand/cash credit on the hypothecation of Movable property is made out. Ex. P/2 in the first part contains the blanks even in relation to the name of the partnership or the company. The document is incomplete and the annexed agreement also does not provide the details of the property. The document which is marked as 'Schedule' is blank. In absence of the positive evidence on the part of the plaintiff it cannot be presumed that there was a legal agreement. Ex. P/4 is said to have been executed by the defendant on 29.12.76. According to which the defendant had agreed that clean cash credit has been sanctioned to the defendant by the Bank on 29.12.76, therefore, he confirm the said arrangement that it has been entered into by the parties on particular terms and conditions. This document refers to the promissory note in the agreement Ex. P.2. According to PW1, G.K. Gupta, Ex. P.4 was prepared in his presence, dated and the defendant has affixed his signature. In his statement, G.K. Gupta has stated that on 29.12.76 the documents were executed. In the cross -examination, he stated that Ex. P.2 and Ex. P.4 were filled in his presence and the then Manager had written the date on the document. He admitted that Ex. P.4 was executed on a stamp which was purchased by the defendant on 7.2.78. In further cross -examination he was unable to give the reason on which a document in 1976 was written on a stamp purchased in the year 1978. He denied the suggestion that the document was forged. From a perusal of Ex. P.4, it is clear that the stamp was purchased on 7.2.78 by Indian Bank, Hamidia Road. Bhopal. The stamp was not purchased by the defendant. Now if the stamp was purchased on 7.2.78, it is inconceivable that the document was in fact executed on 29.12.7 ft, I tail to understand as to how a document could be executed on 29.12.7 ft on a stamp which was yet not purchased by the party. It is clear from the document and the statement of PW/1 that the stamp was purchased on 7.2.78 and (he bank to substantiate its claim has forged it. The document was presented in the course of the evidence as if the document was executed on 29.12.7 ft with other documents. The conduct of the bank on relying upon the document Ex. P.4 is absolutely irresponsible. The forgery commuted in the document Ex. P.4 clearly shows that the bank had stooped down to such a low level to bring the suit within limitation which is not expected from a bank on which the general public relies upon. It is unfortunate that the bank has relied upon a forged document to obtain a favourable order in its favour. If document Ex. P.4 is unreliable then other document alleged to have been executed on 29.12.76 also cannot be relied upon. Ex. P/3, which is the stock statement is having a carbon copy executed. Under the signature of the defendant the date 29.12.76 has been written by some body but in the carbon copy the date has not been shown. Page No. 5 which is the schedule of the goods, as observed above is blank. This document clearly shows that the bank had obtained the signatures of the defendant on blank papers and has been preparing the documents to suit its purpose. It is not expected of the bank that only to bring its suit within limitation, it would forge document and would rely upon the same. If the bank could forge one document it could certainly forge other documents. The manner in which the signatures of the defendant have been obtained on the documents clearly show that neither the documents were prepared when the signatures of the defendant were obtained, nor the defendant was ever explained that the bank was obtaining his signatures on the documents so that the document can be used in future. If the bank had forged one document showing to have been executed on 29.12.76 then all other documents which are either incomplete or show that signatures of the defendant have been obtained on blank documents would clearly shows that the documents have been later on concocted and forged.