R. D. Khare, Chairperson
1. The present appeal has been filed by the appellant-Bank under section 20 of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to “The RDB Act”) against the judgment dated 27.01.2021 passed by the DRT, Dehradun, whereby the O.A. No. 323/2018 filed by the appellant-Bank has been dismissed.
2. The brief facts of the matter are that the respondent No. 1 was granted some credit facilities by the appellant-Bank, to which the respondents No. 2 and 3 stood as guarantors in their personal capacity, who are being now represented through their legal heirs. In addition to it, the respondent No. 1-borrower hypothecated the entire crops and created collateral security by way of simple mortgage over the immovable property owned by her in favour of the appellant-bank. The respondents No. 1, 2 and 3 also executed and signed various loan and security documents on 05.11.2011 in favour of the appellant-Bank. The respondent-borrower after availing of the said facilities failed to maintain the financial discipline, therefore, the accounts were classified as NPA on 30.09.2018.
3. Thereafter, a demand notice was issued to the respondents-borrowers to repay the outstanding dues, but they did not make any payment against the said demand. Therefore, the appellant-Bank filed an Original Application No. 323/2018 under section 19(1) of the RDB Act before the Tribunal below for recovery of Rs. 13,60,528.62 along with pendentelite and future interest @ 9.10% per annum for union green card limit and @ 9.85% per annum for debt swap term loan with half early rest plus penal interest @ 2% per annum from the date of filing of the O.A. till the date of realization. The Tribunal below vide judgment impugned has dismissed the Original Application of the appellant-Bank and held that the thumb impression appended on disputed mortgage deed dated 05.11.2011 as well as on other loan documents with standard thumb impression and fingers impressions of both the hands with naked eyes filed by the respondent No. 1 are different and do not match with each other and also held that the original application is barred by time for the purpose of money decree as it has been filed beyond three years period of limitation even from the execution of alleged loan documents/guarantee agreement i.e. 05.11.2011. As such it was also held that the claim qua the personal liability of defendants No. 1 to 3 is also time barred. Being aggrieved the said judgment, the present appeal has been filed by the appellant-Bank.
4. Learned counsel for the appellant submitted that the original application has been rejected only on two grounds, first the thumb impression of the borrower does not match with the thumb impression on the loan documents and secondly, the O.A. was barred by time, whereas there was balance confirmation letter dated 03.03.2017, therefore, there was no delay. It was further submitted that the thumb impression and fingers’ impression of both the hands of the borrower were directed by the Tribunal below to be given before the public notary for attestation and thereafter to be filed before it along with affidavit of the Notary and accordingly the same were filed before the Tribunal below supported by the affidavit of the notary and the loan document was before the Presiding Officer itself and found that the same were not matching with each other, whereas the said impression was not sent to any finger print expert. As such the order impugned is liable to be quashed and the appeal deserves to be allowed.
5. The learned counsel for the respondents submitted that there was no application by the appellant before the Tribunal below for sending of document regarding thumb impression to the expert, therefore, it was not sent to any expert and it was prima facie found that the thumb impression taken at that time was different from the thumb impression taken on the loan document and there was no need to send the same to any expert. Hence, the Tribunal below has rightly held that the respondent No. 1 has neither executed any loan documents nor any mortgage deed for creating any charge over the immovable property in question in favour of the appellant-Bank to secure the alleged credit facilities in question.
6. It was also contended that the loan was taken in year 2011 and the application was filed in year of 2018, therefore, the O.A. filed by the Bank was clearly barred by time. Hence, the Tribunal below has rightly dismissed the O.A. being barred by time. As such the order impugned does not warrant any interference by this Tribunal. Accordingly, the appeal filed by the appellant may be dismissed.
7. Having heard the learned counsels for the parties and considering the material available on record, undisputedly, the appellant-Bank granted the union green card facility for Rs. 5.00 lacs and a term loan of Rs. 1.00 lac and the same were allegedly utilized by the respondent no.1.
8. The main question involved in the present case is, as to whether the respondent no. 1-borrower has availed the loan facility and executed the loan documents or not?
9. It is to be seen that an Original Application No. 323/2018 was filed by the appellant-Bank for recovery of its dues before the Tribunal below against the respondents. After issuance of summons, the respondent No. 1 filed the written statement stating therein that she has never availed any loan nor signed any loan documents or executed any mortgage deed in favour of the appellant-Bank. Considering the averment of the borrower, the Tribunal below directed the appellant to produce the original loan documents/mortgage deed and the respondent No. 1-borrower to file duly attested LTI and RTI as well as both hands’ fingers impression on oath attested by notary public. Accordingly, the same were filed by both the parties before the Tribunal below. The Tribunal below has dismissed the O.A. of the appellant-Bank holding that the thumb impression appended on disputed mortgage deed dated 05.11.2011 as well as on the other loan documents with standard thumb impression of both the hands and fingers impression with naked eye are all together different and do not match with each other. The said conclusion of the Tribunal below on the basis of attested thumb impression by notary is not sustainable because the DRT below has no expertization/instrument for matching the signatures and thumb impressions of the parties.
10. It is also to be seen that while the aforesaid loan was granted to the respondent No. 1-borrower, the loan application and mortgage deed dated 05.11.2011 as well as the other documents were allegedly signed by the respondent No. 1. If the respondent No. 1 has taken the plea that she has neither availed the loan nor signed any loan documents or created any mortgage over her immovable property, the Tribunal below ought to have sent all the loan documents, which were claimed by the Bank to be signed by the respondent No. 1 and the current thumb impression as well as the fingers impression of both the hands to the forensic laboratory, which is established and authorized for the said purpose, because in such situation, the general practice in the Tribunals or Courts is that the thumb impression is taken before the Court and the same is sealed and then it is sent along with the other documents to the Forensic Laboratory established by the concerned State for its matching, but in the present case, neither the thumb impression of the borrower has been taken before the Tribunal below nor sent to any agency, which is established for the said purpose. If the thumb impression and the fingers’ print of the borrower was taken before the Tribunal below, it might be, the result would have come otherwise, but the Tribunal below did not do so, instead it itself has exercised the jurisdiction of the Forensic Laboratory. As such the Tribunal below has exceeded its jurisdiction in matching the thumb impressions of the borrower, which were not taken before it.
11. Besides above, it is observed that the loan was granted in the year 2011 and O.A. was filed in the year 2018, during which the respondent No. 1 has never raised any objection with regard to the disbursement of the said loan. Prior to filing of the O.A., several reminders were given by the Bank to the respondent-borrower for regularizing the account, but it does not appear that the respondent No. 1 has ever raised any such objection, which is now being raised. If the respondent-borrower had never visited the Bank nor taken the aforesaid loan, the question arises, as to how the sale deed as well as other documents of the borrower with regard to her property has reached with the appellant-Bank, on which the thumb impression of the respondent No. 1 is there. In all the documents submitted before the Tribunal below from page No. 110 to page No.136, there are only thumb impressions of the respondent No. 1-borrower, of which she had tried to take advantage.
12. So far as the limitation aspect of the matter is concerned, the fate of same would depend upon the report of the forensic laboratory. Therefore, this point is left open for future.
13. In view of the discussions as held above, I am of the view that the Tribunal below has wrongly exercised the jurisdiction of the Forensic Laboratory for matching the thumb impressions of the borrower. Hence it is a fit case for remand back to the Tribunal below for doing the needful with regard to the genuineness of the documents, as to whether the same have been executed and signed by the borrower or not. Thus the order impugned is liable to be quashed.
14. Accordingly, the order impugned is set aside. Consequently, the appeal is allowed and the matter is remanded back to the Tribunal below for the deciding it afresh in accordance with law after getting the report from the authorized Forensic Laboratory on the documents available on record without there being influenced by the observations made herein above.
