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Rajasthan High Court · body

2008 DIGILAW 2681 (RAJ)

Mohd. Azad v. Tahir Hasan

2008-12-11

SANGEET LODHA

body2008
JUDGMENT 1. - These writ petitions are directed against separate orders dated 15.7.2008, passed by the learned Civil Judge (S.D.), Chittorgarh in Civil Suits No. 7/2003, 8/2003 and 9/2003, whereby the applications preferred by the petitioner-defendant for summoning the copy of his specimen signature available with the Bank of Rajasthan Ltd. has been rejected. 2. Since the issues involved in these writ petitions are identical therefore, the same were heard together and are being decided by a common order. 3. The facts of the Writ Petition No. 6058/2008 arising from order dated 15.7.2008 in Civil Suit No. 8/2003 are being taken into consideration as a lead case. 4. The respondent-preferred a suit against the petitioner-defendant before the learned Civil Judge (S.D.), Chittorgarh under Order 37 of Civil Procedure Code, 1908 (in short "C.P.C." hereinafter) for recovery of an amount of Rs. 45,000/- on the basis of a promissory note dated 5.3.2000. The petitioner- defendant preferred an application seeking leave to defend on the ground that the promissory note and the receipt on the strength of which the suit has been preferred, are forged documents and as a matter of fact, the defendant has not taken any loan from the plaintiff, as alleged. It is contended that had the defendant taken the loan from the plaintiff then, there was no occasion to execute three separate promissory notes by the defendant in favour of the plaintiff. 5. The petitioner-defendant preferred an application in all the three suits separately before the learned trial Court praying that his alleged signature on the promissory notes and receipts may be got examined by an expert. The applications preferred were allowed by the learned trial Court by order dated 5.1.2007 passed in each case separately. Accordingly, it was ordered that the defendant shall produce list of the registered hand-writing experts so that an appropriate person may be appointed for the purpose. 6. On being approached by, the petitioner, one Dr. Dinesh Sethi, Documents Examiner and Forensic Consultant, consented for giving his opinion vide letter dated 4.12.2007 inter alia stating that he would require attested photostat copies of the promissory note and receipts and also signatures of the petitioner herein on six papers containing plain signatures with fast, medium and slow speed and would also require at least five old signatures. The fee as demanded by the expert was) deposited by the petitioner. 7. The fee as demanded by the expert was) deposited by the petitioner. 7. For the purpose of providing old signature, the petitioner submitted a registered sale deed dated 21.3.2008 which bears his signature. However, for old signature, the petitioner-defendant submitted an application before the learned trial Court stating therein that his old signatures are available with the Rajasthan Bank Limited, Chittorgarh Branch, Chittorgarh where he is maintaining an account bearing No. 1017114 since the year 1995. It was further submitted that the bank officers are not ready to provide the copy of his specimen signatures without an appropriate order by the Court, accordingly, it was prayed that the concerned bank may be directed to make available attested copy of the petitioner's signatures. 8. The aforesaid application has been rejected by the learned trial Court vide order impugned observing that the original specimen signature cannot be obtained from the bank. That apart, the learned Court opined that the specimen signatures cannot be said to be a document which can be summoned by the Court. 9. It is contended by the learned counsel for the petitioner that the learned trial Court has already allowed the application preferred by the petitioner for examination of his signature by a hand-writing expert and as opined by the hand-writing expert Dr. Dinesh Sethi for the purpose of comparison of the disputed signature, the copies of the document bearing his old signature are necessary. The learned counsel submitted that the learned trial Court has observed that the petitioner's signature on the sale deed dated 21.3.2003 are of the date after the date of filing of the suit and therefore, the same cannot be said to be undisputed signature, thus, it is absolutely necessary to obtain the copy of the petitioner's specimen signature given to the bank by the petitioner in the year 1995 when the account was opened. The learned counsel submitted that obviously his undisputed signature available with the bank fulfills the requirement of the hand-writing expert. It is submitted by the learned counsel that the specimen signatures are obtained by the bank on the specified form at the time of opening the account, therefore, it cannot be said that the attested copy of the specimen signature to be issued by the bank cannot be treated to be a document. It is submitted by the learned counsel that the specimen signatures are obtained by the bank on the specified form at the time of opening the account, therefore, it cannot be said that the attested copy of the specimen signature to be issued by the bank cannot be treated to be a document. The learned counsel submitted that on the facts and in the circumstances of the present case, to meet the ends of justice, it is absolutely necessary that the concerned bank is directed to provide an attested photostat copy of the petitioner's specimen signature available with them. Accordingly, it is submitted by the learned counsel that the order impugned passed by the learned trial Court, if allowed to stand; will result in failure of justice. 10. Per contra, the learned counsel appearing on behalf of the respondent- plaintiff submitted that the specimen signature cannot be said to be a document and no order can be passed by the Court to summon the same. The learned counsel submitted that as a matter of fact, the application preferred by the petitioner-defendant is only a delaying tactics therefore, the learned trial Court was justified in rejecting the same. 11. I have considered the rival submissions and perused the material available on record. 12. It is a matter of common knowledge that while carrying on the banking business, the banking companies are required to maintain the various record. The specimen signatures of the persons desiring to open the account of any description are obtained by the bank at the time of opening the account. It forms part of "bankers books" as defined by sub-section (2) of Section 2 of the Bankers' Books Evidence Act, 1891, which includes ledger, day books, cash books, account books and all other records used in ordinary business of the bank.Moreover, "the document" as defined by clause (18) of Section 3 of General Clauses Act, 1897 includes any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one means which is intended to be used or which may be used for the purpose or recording that matter.Therefore, in the considered opinion of this Court, the learned trial Court has erred in holding that the record of the specimen signature of the account holder maintained by the bank does not fall within the definition of the "document". 13. 13. As per the provisions of Section 5 of Bankers' Books Evidence Act, 1891, no officer of the bank can be compelled to produce any bankers book in any legal proceedings to which the bank is not a party, the contents of which can be proved under the provisions of the said Act unless specifically ordered by the Court for the special cause. That apart, as per the provisions of Section 4 of the Act of 1891, a certificate copy of any entry in the bankers books shall received as prima facie evidence of existence of such entry in all legal proceedings and shad be admitted as evidence of the matters, transactions and accounts therein recorded in every case where and to the same extent as original entry itself is now by law admissible. In this view of the matter, the stand taken by the defendant before the learned trial Court that the bank is not ready to supply the certified copy of his specimen signature available with it, unless, specifically ordered by the Court, cannot be disbelieved. 14. The learned trial Court having passed an order for examination of the signature of the petitioner-defendant on the promissory note by hand writing expert should not have declined to summon the certified copy of the petitioner- defendant's specimen signature available with the Bank of Rajasthan Ltd. which will obviously, meet the requirement of the handwriting expert. Having passed the order as aforesaid, the endeavour of the Court should have to give effect to the order rather than to defeat the same. Thus, on the facts and in the circumstances of the case, in considered opinion of this Court, the learned trial Court has erred in refusing to summon the certified copy of the specimen signature of the petitioner-defendant available with the Bank of Rajasthan Ltd., where the petitioner is holding a bank account since 1995. 15. For the aforementioned reasons, the writ petitions allowed. The orders impugned dated 15.7.2008 passed by the learned Civil Judge (S.D.), Chittorgarh in Civil Suits No. 7/2003, 8/2003 and 9/2003 are set aside. The applications preferred by the petitioner-defendant to summon the certified copy of his specimen signature from the Bank of Rajasthan, Chittorgarh Branch, are allowed. The learned trial Court is directed to summon the certified copy of the specimen signature of the petitioner-defendant available with the Bank of Rajasthan Ltd., Chittorgarh Branch. The applications preferred by the petitioner-defendant to summon the certified copy of his specimen signature from the Bank of Rajasthan, Chittorgarh Branch, are allowed. The learned trial Court is directed to summon the certified copy of the specimen signature of the petitioner-defendant available with the Bank of Rajasthan Ltd., Chittorgarh Branch. No order as to costs.Writ petition allowed. *******