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Himachal Pradesh High Court · body

2016 DIGILAW 1276 (HP)

Kishori Lal v. Jammu and Kashmir Bank Limited

2016-07-05

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Respondent No. 2 is duly served, however, there is no appearance on his behalf. Hence, proceeded against exparte. 2. Heard. Order Annexure P-5 is under challenge in this petition. The petitioner is defendant No. 2. He stood guarantor on behalf of respondent No. 2 herein, (defendant No. 1 in the trial Court) to ensure the repayment of the loan, the said defendant had raised from respondent No. 1 (plaintiff in the trial Court). 3. Defendant No. 1 has raised loan from the plaintiff-bank. He executed the loan agreement Ext.PW2/D and also demand promissory notes Ext.PW2/E, Ext.PW2/F and Ext.PW2/G and thereby agreed to repay the outstanding loan amount to the plaintiff. Defendant No. 1, however, has defaulted in the payment of the loan amount. This has led in filing the suit against him and the guarantor, the petitioner-defendant No. 2. The principal borrower, defendant No. 1 was duly served in the suit, however, opted for not putting appearance. Even in this petition also, he allowed himself to be proceeded against exparte. 4. The perusal of the written statement reveals that petitioner-defendant No. 2 has taken a plea that defendant No. 1 is habitual defaulter. According to him, he is in the habit of obtaining loan but not to repay the same. There are many civil and criminal cases including complaints under Section 138 of the Negotiable Instrument Act are stated to be filed against defendant No. 1. Defendant No. 1 has approached him (defendant No. 2) with a request to furnish bank guarantee so that he can raise the loan. The petitioner-defendant No. 2 allegedly refused to do so. Defendant No.1, however has allegedly managed to forge his signature on the guarantee deed. This is the stand of defendant No. 2 taken in the written statement filed to the suit. It was no where his case that the loan agreement and demand promissory notes not bears the signature of defendant No. 1. Otherwise also, an application filed for comparison of the signature of defendant No. 1 is not maintainable at the instance of petitioner/defendant No. 2 because he cannot say that signature on the loan documents are not that of the said defendant. It was for defendant No. 1, the executant himself to have disputed the execution of these documents. Otherwise also, an application filed for comparison of the signature of defendant No. 1 is not maintainable at the instance of petitioner/defendant No. 2 because he cannot say that signature on the loan documents are not that of the said defendant. It was for defendant No. 1, the executant himself to have disputed the execution of these documents. Therefore, learned trial Court has not committed any illegality or irregularity while arriving at a conclusion that the petitioner-defendant No. 2 has no locus standi to ask for the comparison of the signature of defendant No. 1. 5. The ratio of the judgment of a Co-ordinate Bench of This Court in Balak Ram Negi versus State of H.P. & its connected matters, Latest HLJ 2013 (HP) 402, is distinguishable on facts, hence not applicable. The petition without any merit is accordingly dismissed. 6. Pending applications, if any, also sands dismissed. 7. Authenticated copy of this judgment be sent to learned trial Court for being taken on record.