Laxmi Chand Yadav vs Allahabad Bank

Gulab C. Gupta, J.

1 Appellant-defendant feels aggrieved by the judgment and decree dated 3.11,1988 passed by Shri P.V, Namjoshi, Third Addl. District Judge, Jablapur in Civil Suit No. 11-B/85 and challenges legality and validity thereof in this first appeal u/s 96 C.P.C.

Respondent-Bank filed the present suit for recovery of Rs. 39, 815. 31 P from the appellant on the allegation that the appellant had been granted over-draft facility to meet the requirements of civil works contracts by opening a mutual current and open account in his name. It is further alleged that the appellant withdrew the amount from the said account from time to time and also deposited various amounts in the said account. Later on, the respondent-plaintiff alleged that the appellant acknowledged the balance of Rs. 28,970.90 P on 30.6.83 by signing Ex. P -4. Even thereafter, it is alleged, that the appellant failed to make payment, as a result of which notice Ex. P-1 was sent to him recalling the advance. The said notice was received by him on 14.12.84 vide acknowledgement receipt Ex. P-3. Since the appellant did not pay the amount even thereafter, the present suit was filed for recovery of the balance due on the said account. The appellant in his written statement admitted that he was allowed overdraft facility and an account was opened in his name. He however denied that he signed acknowledgement on 30.6.83 and submitted that the acknowledgement was forged. He also submitted that the suit was barred by limitation. Specific defence of the appellant was that the Branch Manager personally met him and wanted him to sign a paper acknowledging the debt but he refused to do so. That is how he claimed the document Ex. P-4 to be forged. Learned trial Judge, on the basis of evidence adduced by the parties, held that acknowledgement dated 30.6.83 (Ex. P-H) was signed by the appellant and was sufficient to bring the suit within limitation. Even otherwise, the learned Judge held that since the claim was based on mutual open and current account, it was governed by Article 1 of the Limitation Act and was within limitation. That is how the claim has been decreed and the matter is in this Court in this appeal for its consideration.

The submission of the Learned Counsel for the appellant is that the Court has on its personal comparison, held that the document Ex. P-4 was signed by the appellant. Relying on Narayan Prasad v. Ambikaprasad, 1963 MPLJ 235 it is submitted that such a comparison, is hazardous as the Courts are not experts in the matter. It is therefore submitted that in the absence of examination of an expert in the matter, the acknowledgement Ex. P- 4 is not proved in accordance with law. It is further submitted that the trial court has wrongly held that the suit had not become barred in view of Article 1 of the Limitation Act. According to the Learned Counsel for the appellant, account Ex. P- 5 would indicate that the appellant made the last deposit therein on 5.6.80 and hence the period of limitation would start running from the end of the year 1980. If the period of limitation is accounted from 1.1.80, the suit which is filed on 22.4.85 would be barred by limitation. Unfortunately no one appeared for the respondent - Bank to defend the impugned judgment and decree and therefore the Court is left with its own expertise to appreciate the aforesaid submission.

The first question requiring consideration of this Court is whether acknowledgement dated 30.6.83 Ex. P-4 is proved to have been signed by the appellant as alleged by the respondent. The plaint is really based on this document as would be clear from paras 3 and 4 thereof. Its execution is specifically denied by the appellant. There is no dispute that if the document Ex. P-4 is found to have been executed by the appellant, the suit could be within limitation. The respondent also claims to have sent the notice Ex. P-1 to the appellant through its lawyer Ramesh Chand Jain on 1.12.83. Postal receipt of the dispatch is Ex. P-2 and acknowledgement bearing the alleged signature of the appellant is Ex. P-3. Appellant as DW 1 has denied his signature even on Ex. P- 3. Inspite of it, it is admitted by the appellant that an over- draft account was opened and operated by making deposits and withdrawals. Though the appellant has denied his signature on Exs. P-3 and Exs.P-4, he has stated nothing about accounts Ex. P-5. He has on the contrary admitted that the account was mutual inasmuch as, he not only deposited money but also withdrew money from the said account. He also admitted that there was no limit of the overdraft and he could deposit the money in a manner to suit his convenience. He has admitted his signatures on the written statement as also Ex. P-6, he signed the same in the Court during his cross-examination. The appellant as DW 1 in his evidence does not state that any one forced him to sign the document and he refused to do so, as stated in para 9 of the written statement. In the said para, the name of the Bank Manager who allegedly was forcing the appellant to sign the document was not even disclosed. As against it, R.S. Trivedi (PW 1), an Officer of the Bank, has claimed that the acknowledgement Ex. P-4 was signed by the appellant in his presence and after examination of accounts. Accounts Ex. P-5 matches the amount mentioned in Ex. P- 5. Shri Trivedi has in his cross-examination, further alleged that Ex. P-4 has been written by him in his own handwriting and the appellant had signed the same in the Bank, There is nothing in the cross-examination of Shri Trivedi to indicate that he bears any ill-will against the appellant. There is also no suggestion made to Shri Trivedi about the force used by some Bank Manager for signing the document like Ex. P-4, Indeed, the defence of the appellant as mentioned in para 9 of W.S. is not even suggested to this witness. Then, Shri Trivedi has also stated on oath that the Bank''s Advocate has sent notice Ex. P-1 recalling the roan and requiring the appellant to pay the same. Appellant Laxmi Chand Yadav (DW 1) has stated nothing about this notice. He has only denied his signatures on acknowledgement Ex. P-3 and yet admitted in his cross-examination that his address on the said document was correct. In view of this evidence, one may like to know why the postal authorities would forge the document Ex. P-3. That the Ex. P-1 had been sent, would be sufficiently proved by Receipt Ex, P-2 and silence of the appellant about it. this Court is therefore of the opinion that the appellant has not stated the truth in the witness box while denying his signatures on Ex. P-3, being a document obtained by the respondent-Bank in normal official business of the post office, should be presumed to be correct more particularly because it bears the correct address of the appellant and the appellant does not deny receipt of notice Ex. P-1. Once receipt of notice Ex. P-1 by the appellant is held to have been proved, it will require again an explanation as to why he kept silence about it. Indeed if the defence of the appellant has to be believed, the claim of the Bank had become barred by the time the notice was sent. The notice would further indicate that the Bank had the legal advice of an Advocate available with them and if there was any possibility of claim becoming barred by limitation, they would not have given this notice. In such a situation, they might have filed the suit earlier. Under the circumstances, this Court finds no justification for believing the bald statement of the appellant that Ex. P-4 is not signed by him. this Court is on the contrary of the opinion that evidence of R.S. Trivedi (PW 1) sufficiently establishes its execution by the appellant. this Court is therefore pleased to affirm the findings recorded by the learned trial Judge.

In spite of it, it may be mentioned that the denial of the execution of the acknowledgement of Ex. P-4 by the appellant would have been more meaningful if expert opinion on signatures at A to A was available. It is also true that the Courts are not experts in the sense that they do not have any formal training of comparing handwritings but this does not mean that the Courts have the obligation to accept expert opinion as conclusive of the disputed signature. Indeed the law is that the evidence of handwriting expert is only relevant and not conclusive and it is the obligation of the Court to either accept or reject it on application of established standards of appreciation of evidence. In Srichand K. Khetwani Vs. State of Maharashtra, it was clarified that examination of an expert is not always necessary. It is not necessary in those cases where the Court can reach a satisfactory conclusion about the authorship of a particular writing on the basis of material on record. Similarly in Fakruddin v. The State of Madhya Pradesh, AIR 1967 SC 1326 it was clarified that expert evidence is one of the modes of proving the authorship of a disputed handwriting but it is not the only mode. The other two modes acceptable to law are evidence of person acquainted with the handwriting and comparison by the Court. Even in Narayan Prasad v. Ambikaprasad, 1963 MPU 253, on which reliance has been placed by the Learned Counsel for the appellant, it has been clarified that the Court is not divested of its jurisdiction to reach conclusion on comparison of disputed signature with the admitted signature. Under the circumstances, though the Court will not treat itself as a handwriting expert, it is not divested of its authority or jurisdiction to reach its own conclusion and in that process, compare the disputed writing with the admitted writing. So many admitted signatures of the appellant are available on record. They are available in written statement and Ex. P-6 and in the Vakalatnama. Signatures on Ex. P-6 would show variations and would indicate that the appellant has in all probability signed Ex. P-4. This would reinforce the conclusion based on evidence of Shri R.S. Trivedi (PW 1) and justify the finding against the appellant.

Even if it was to be held otherwise, this Court would find the suit within limitation by application of Article 1 of the Limitation Act. The said Article applies to mutual open and current account and the accounts Ex. P-5 meets that description. A mutual account as clarified by Supreme Court in The Hindustan Forest Company Vs. Lal Chand and Others, is an account consisting of two sets of independent transactions between the parties, in one of which, one of the party should hold the position of debtor and other that of a creditor and in the other, the reverse position. The mutuality is also admitted by the appellant in his evidence. If any further authority to justify the conclusion was necessary, it is available in Kesharichand Jaisukhal Vs. The Shillong Banking Corporation, which dealt with an overdraft account of a customer with the Bank, Similarly the account is open and current is also apparent from Ex. P-7. The open current account means a running and unsettled account. In other wards an account which is not closed in settlement or otherwise. In Gordon Woodroffe and Co. Vs. Sheikh M.A. Majid and Co., it was clarified that the accounts are settled and stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered. Such a statement of account need not be in writing, not is it necessary that before the accounts are settled, they should be gone into by the parties and scrutinized and supported by vouchers. The evidence of the appellant Laxmichand Yadav clearly indicates that the account was open and mutual and he withdrew the amount from the said account whenever he needed it and deposited the amounts into it at his convenience. He does not say that he settled or closed the account any time. As long as the account is not closed, it will remain opened. Notice Ex, P-1 would become important as it requires the appellant to settle the account. In this view of the matter, the fact that the appellant has not deposited any amount during the last three years of the date of filing the suit would not make any difference, and the account will continue to remain open, mutual and current. Once the appellant admits having an account which is mutual open and current, its character will not change as long as the account is not settled which in the instant case is not even the allegation of the appellant. Under the circumstances, the period of limitation would not start running against the respondent-Bank. this Court is therefore of the opinion that the trial Court made no mistake in holding that the suit was not barred by limitation.

Appeal is held to be devoid of substance and dismissed. Since on one appeared to oppose the appeal on behalf of the respondent Bank, parties will bear their own costs of this appeal.