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Judgment
Dr.A.K.RATH, J.
The defendants are the appellants against a reversing judgment.
The plaintiff-respondent instituted the suit for realization of Rs.5471.45 from the defendants. The case of the plaintiff-Bank was that on 10.1.1978
defendant no.1 borrowed a sum of Rs.3,500/- from the plaintiff-Bank. Defendant no.2 stood surety for the said loan. Accordingly, they had executed a
Demand Promissory Note (“D.P.Noteâ€). When the defendants failed to make any payment, the plaintiff-Bank instituted the suit for realization of
the loan amount.
The defendants filed a written statement denying the assertions made in the plaint. According to them, defendant no.1 had neither applied for loan,
nor received any amount from the plaintiff-Bank. They had not executed the D.P.Note. In the month of January, 1978, defendant no.2 had applied for
an agricultural loan of Rs.3,000/- to the plaintiff-Bank. The plaintiff-Bank sanctioned a sum of Rs.3,000/- which was paid to him on 10.1.1978.
Defendant no.1 stood as a guarantor. The then Branch Manager obtained the signatures of defendant no.1. Defendant no.1 signed the papers on the
assumption that he was signing as a surety for the loan taken by his son. He had not received any amount.
On the inter se pleadings of the parties, learned trial court framed four issues. Parties led evidence, oral and documentary, to substantiate their
cases. Learned trial court came to hold that the plaintiff-Bank had failed to prove execution of D.P.Note by defendant no.1 and advance of Rs.3,500/-
. Held so, it dismissed the suit. Felt aggrieved, the plaintiff-Bank filed Money Appeal No.12 of 1988 in the Court of the learned Additional District
Judge, Parlakhemundi. Learned appellate court allowed the appeal holding inter alia that the defendants had executed a D.P.Note and the plaintiff-
Bank had disbursed the loan amount to defendant no.1.
This appeal was admitted on the substantial questions of law enumerated in ground nos.2, 3 and 6 of the appeal memo. The same are:
“2. For that the finding of learned lower appellate court that execution of demand promissory note was proved as the defendant no.2 admitted his
signature on Ex-2 is contrary to law. It is submitted that mere signing is not executing a document. As such the decision passed by learned lower
appellate court allowing the appeal and thereby reversing the judgment and decree of trial court dismissing the suit is liable to be set aside.
For that learned lower appellate court acted contrary to law in drawing a presumption that the signatures were after understanding the contents of
Exts.1, 2 and 3. It is submitted that execution as a fact must be proved and no presumption is possible under law. As such the decision of lower
appellate court is contrary to law and is liable to be set aside.
For that the learned lower appellate court misread the judgment of learned trial court in observing that learned lower court also found that the
defendants failed to prove fraud in as much as the learned lower appellate court lost sight of the fact that the finding of learned trial court was on an
assumption of establishment of proof of valid execution of documents by respondent. As such the decision of learned lower appellate court is contrary
to law and is liable to be set aside.â€
Heard Mr.S.S.Rao, learned Advocate for the appellants. None appeared for the respondent.
Mr.Rao, learned Advocate for the appellants submitted that defendant no.2 had not executed the D.P.Note. Learned appellate court is not justified
in drawing a presumption with regard to Exts.1, 2 and 3. The finding of the learned appellate court is based on surmises and conjectures. The plaintiff-
Bank has failed to prove due execution of the documents.
On scanning of the evidence on record and pleadings, learned appellate court came to hold that defendant no.1 had admitted his signature appearing
in the loan application, Ext.1, D.P.Note dated 10.1.1978, Ext.2 and payment voucher, Ext.3. Defendant no.1 had put his signature after understanding
the contents of the documents. It concurred with the finding of the learned trial court that no fraud has been played. It further held that learned trial
court is not justified in observing that for nonproduction of loan register and payment register, adverse inference should be drawn against the plaintiff-
Bank. Under Sec. 4 of the Bankers’ Books Evidence Act, the certified copy of the statement of account is admissible. It further held that Exts.1,
2 and 3 had been marked without objection. Defendant no.1 had executed the D.P.Note, Ext.2. Defendant no.2 acted as guarantor. The plaintiffBank
had disbursed a loan of Rs.3,500/- to defendant no.1. There is no perversity or illegality in the finding of the learned appellate court. The substantial
questions of law are answered accordingly.
In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No Costs. Â