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1. This is an appeal filed by the appellants against the Decree & Judgment dated 30.08.2008, passed by Ld. Civil Judge, in suit number 126/02/99, titled as Bank of India v/s M/s Shiva Constructions & Anr., whereby the Ld. Civil Judge partly decreed the suit for a sum of Rs. 70,000/- along with interest @ 15 % p.a. w.e.f. 11.06.1996, till the date of Decree and future interest @ 12 % p.a. In favour of the respondent Bank and against the appellants.

2. Briefly stated, the relevant facts for disposal of the appeal are that the respondent Bank had filed a suit for recovery for a sum of Rs. 1,38,327.44/- on the basis of temporary overdraft facility and India card facility which as per the respondent Bank were availed by the appellants. The appellant number 1 is a sole proprietorship concern of appellant number 2 whereas the respondent is a Bank. It was averred before Trial Court that the appellants were having a separate A/c in the respondent Bank and the appellant number 2 in his capacity as proprietor of appellant number 1 had approached the respondent Bank on 11.07.1996, for grant of temporary overdraft facility for a sum of Rs. 70,000/- on usual terms of interest for a period of three weeks. The appellant number 2 withdrew the amount of Rs. 70,000/- through a loose leaf cheque on 11.06.1996, issued by the respondent to the appellant on his request. It was further the averrment that appellant number 2 had also applied for the credit card which was issued to the appellant in the name of 'India Card' which was used by the appellants as alleged by the respondent Bank and on the basis of these two transactions, the respondent Bank had filed the suit for recovery. Leave to defend filed by the appellants was allowed and the matter was contested on merits after filing of the written statement.

4. The Judgment of Ld. Civil Judge, was sought to be assailed on the ground that the respondent Bank had not examined any hand writing expert nor any person who was acquainted with the signatures of appellant number 2 and that the appellant number 2 in his capacity as proprietor of appellant number 1 had never applied for loan with respect to the alleged amount of Rs. 70,000/- and that despite many requests to produce the original specimen signature card of appellant number 2 was not produced before the Court. In terms of case of respondent Bank, the appellants had applied for overdraft facility for a sum of Rs. 70,000/- which was sanctioned and then the appellants withdrew the said amount of Rs. 70,000/- which was never repaid. Hence, the suit was filed along with another liability of the appellants for the payment of amount towards the user of India Card. However, since the appellants have been challenging only to the extent of passing the Decree in favour of respondent Bank against the liability of overdraft facility, hence, I also confine my findings to this aspect. To support their case, the respondent Bank had placed on record the application filed by the appellants seeking overdraft facility, the cheque by which the said amount of Rs. 70,000/- was withdrawn by the appellants and the statement of A/c which was being maintained by the respondent Bank. Ld. Civil Judge while agreeing with the factum of proof of the documents i.e. the letter written by the appellant number 2 seeking the grant of temporary overdraft facility as Ex. PW 1 /2, cheque dated 11.06.1996, signed by appellant number 2 as Ex. PW 1/3 and the statement of A/c Exs. PW 1/16 to 1/18 held the case of the respondent Bank to be proved and discarded the contention of the Counsel for appellants that the documents as placed reliance upon were not at all signed by the appellant number 2. In fact, Ld. Civil Judge, proceeded ahead to compare the signatures of appellant number 2 on the letter dated 11.06.1996, Ex. PW 1/ 2and also on cheque with the signatures on the written statement and Power of Attorney filed on record which according to observation of Ld. Civil Judge, was found to be similar.

5. The perusal of the record reveals that the Ex. PW 1 /2 allegedly written by appellant number 2 is on the letter head of appellant number 2 seeking grant of temporary overdraft facility for a sum of Rs. 70,000/-. It was admitted by PW 1 that whenever a person applies for a loan, a form is filled up for the grant of loan which he applies and accordingly, the loan application is signed and documents are obtained from the customer. According to him, in the instant matter, no form was filled up and no agreement was got signed as it was only a temporary overdraft facility for which no form was required to be signed. PW 1 stated that it was not necessary to call for collateral security for the sanction of overdraft amount facility as it was discretion of sanctioning authority. He admitted that no other document except for Ex. PW 1 /2 was got signed by the appellant number 2 at the time of sanctioning of loan which Ex. PW 1 /2 was not also signed by appellant number 2 in presence of any of the PW/s. He did not know as to who had written regarding the sanction and signed the sanction order. He further stated that he could verify from the Bank records but subsequently, failed to prove on record any such sanction order with respect to grant of overdraft facility to the appellants. Perusal of the statement of A/c Ex. PW 1/16(1) reveals the credit outstanding in the A/c of appellants only at Rs. 147/-, yet, the respondent Bank proceeded ahead to sanction the overdraft facility for a sum of Rs. 70,000/- in favour of appellants without obtaining any security or atleast the documentation in this respect. Not only this, the amount of Rs. 70,000/- was allegedly withdrawn by the appellants by presenting a cheque which in terms of deposition of PW/s was issued as a loose leaf cheque. It was admitted by PW 1 as well as PW 2 that whenever a current A/c is opened, a cheque book is issued on demand but PW 1 was not able to answer if a cheque book had been issued to the appellants. According to him, the Bank maintains the record for the issuance of cheque book but he was unable to produce the same on record. Similarly, PW 1 also deposed that they issue a loose leaf cheque on particular request of the A/c holder but he was not aware whether any signatures were obtained at the time of issuance of loose leaf cheque to the appellant. He was not able to answer whether any request letter was given by the appellant for issuance of any loose leaf cheque as well as was not in a position to admit or deny that the appellant had not signed any register at the time of alleged issuance of loose leaf cheque and stated that he will have to verify it from the record of the Bank but again subsequently, was not able to prove any record pertaining to the issuance of loose leaf cheque to the appellant and rather according to him, he had checked up regarding the application for issuance of loose leaf cheque but the same was not available. Similar was the statement of PW 2 that whenever a loose leaf cheque is issued to a customer, at that time, entry is made in the Pass Book maintained by the Bank on which the signatures of A/c holder are taken and the same are counter signed by the Deputy Manager, yet failed to produce any such document on record. None of the PW/s preferred to place on record the specimen signature card of appellant number 2 to match with the signatures on Ex. PW 1 /2, PW 1/3 and PW 1/5 despite the specific request in this respect. Once the respondent Bank failed to prove on record any documentary evidence with respect to the sanction order for sanctioning the overdraft facility to the appellants, the issuance of cheque book or loose leaf cheque or even to prove on record the specimen signature card, it can not be safely concluded that the overdraft facility was actually sanctioned to and availed by the appellants. The observation of Ld. Civil Judge with respect to the power to compare the signatures in terms of Section 73 of the Indian Evidence Act, can not be disputed. However, the reliance is placed on AIR 1999 Guj. 108 Ashok Kumar Uttamchand Shah v/s P.M.A. Chanchad ; AIR 1999 Guj. 113 Bhim Vakanki v/s Union of India & Ors. & AIR 1988 Delhi 39 Shanta Trivedi v/s LIC of India wherein it was observed that :