CM(M)--1457/2019. Case: HEMANT KUMAR SINGHAL Vs. INDIAN OVERSEAS BANK & ANR. High Court of Delhi (India)
| Case Number | CM(M)--1457/2019 |
| Citation | NA |
| Judgement Date | December 10, 2019 |
| Court | High Court of Delhi (India) |
$~36 * IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th December, 2019
+ CM(M) 1457/2019 and CM APPL. 44339/2019, 44340/2019 HEMANT KUMAR SINGHAL ..... Petitioner
Through: Mr. H.S. Gautam, Advocate (M: 9818203060).
versus
INDIAN OVERSEAS BANK & ANR ..... Respondent Through: Mr. Prem Chhetri, Mr.
Kumar and Ms. Sebika Advocates (M: 7908547433).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J(Oral)
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The Petitioner/Defendant No. 2 - Mr. Hemant Kumar (hereinafter „Defendant No.2) is aggrieved by the impugned order dated 17 August, 2019 passed by the ld. ADJ allowing the application under XVIII Rule 3 CPC for leading evidence in rebuttal and evidence witness.
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The Respondent No. 1/Plaintiff - Indian Overseas Bank ( „Bank‟) filed a suit for recovery of Rs.5,71,920/- along with interest Respondent No.2/Defendant No.1 - Mr. Praveen Kumar Jain who allegedly taken a loan vide application dated 2nd March, 2006 for a Rs.6 lakhs. The same was for the purpose of purchase of a car –
It is the case of the Bank that the Defendant No.2 had stood guarantor the said loan and that both the Defendants are therefore jointly and seve liable.
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In the written statement, the case of Defendant No.2 was that taken a loan for purchase of a Honda City car in February, 2006 and
fully repaid the loan by 2009. When he had sought a No Dues Certificat respect of the said loan, the same was not issued by the Bank.
No.2 thereafter served notice dated 21st January, 2011 upon the Bank. reply to the said notice dated 21st February, 2011, it was alleged by the that Defendant No.2 had stood guarantor for the loan of Defendant which was denied by the Defendant No.2. The stand of Defendant No.2 was that Defendant No.1 may have produced forged signatures of No.2 and that he had never stood guarantor for any loan of Defendant N 4. The following issues were framed in the suit:
“1. Whether the plaint is liable to be rejected under order 7 rule 11 of CPC? OPD.
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Whether the plaintiff is entitled for decree of recovery of the suit amount? OPP.
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Whether the plaintiff is entitled for pendentelite and future interest on decreetal amount? if so, at what rate? OPP.
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Relief.”
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Defendant No.1 – the principal borrower, was proceeded ex the suit. The Bank led the evidence of its Senior Manager – Mr. Kumar Mehra, PW-1. Defendant No.2 thereafter led evidence. He appeared as DW-1 and he also led the evidence of handwriting expert DW-3. DW-2 was a witness who appeared from the Police Station who investigating the complaint of forgery. DW-3 – Deepak Jain, evidence, stated that he is a handwriting expert since 1990. He submitted report after comparing the signatures of Defendant No.2. DW-3 was cross-examined initially by the Bank. At that stage an application moved by the Bank seeking permission to cross-examine the said witness. In the said application, the Bank also sought permission to lead evidence
rebuttal. The said application was rejected by the Trial Court vide dated 28th March, 2018. The said order reads as under:
“Arguments heard on the applications of the plaintiff pending on record.
In its application u/o 18 rule 17 CPC, the plaintiff is seeking opportunity to cross-examine DW2 Deepak Jain, the handwriting expert as the opportunity was closed on
25.01.2017. Keeping in view the totality of the circumstances, one last opportunity is granted to the plaintiff to cross-examine DW2 Deepak Jain subject to costs of Rs.4,000/- payable to defendant No. 2 and the diet money shall also be paid by the plaintiff.
In the remaining application u/o 18 Rule 3 CPC, the plaintiff is seeking to produce its own handwriting expert in rebuttal to the examination of DW2 Deepak Jain, handwriting expert by the defendant No. 2. The way plaintiff is trying to examine its own handwriting expert is not rebuttal evidence but is an endeavor to fill the lacunae of the case. The defendant No. 2 had always been defending the case on the ground that his signatures on the alleged loan documents were forged by defendant No. 1. Meaning thereby, it was always within the knowledge of the plaintiff that the defendant No. 2 is disputing his signatures whereby the plaintiff ought to have examine its own handwriting expert at the very first instance instead of waiting for an opportunity to fill the lacunae of the case once the defendant No. 2 has examined his own handwriting expert favouring his contentions. This sort of liberty cannot be granted whereby the application is dismissed.
Issue fresh summons to the DW2 Deepak Jain as per the particulars on record on filing PF returnable for
25.07.2018.”
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Thereafter, the Bank again moved an application for leading evidence which was permitted by the Trial Court by the impugned order.
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Ld. counsel for Defendant No.2 has submitted that the
evidence by the Bank could not have been permitted as this very prayer the Bank was rejected vide order dated 28th March, 2018. The Ld. could not have taken a different...
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