Allowed

Bank Of Baroda v. Waheda Sultana

DRAT13 Jan 2025REGULAR APPEAL/285/2018

Case brief

AI extract

What is this about?

The appellate Tribunal allowed the appeal, setting aside the DRT's judgment. The Tribunal held that the DRT erred in deciding on the validity of loan signatures based solely on its own observation without obtaining an expert opinion from the Bank, despite a specific challenge to the signatures and photographs.

What did the court decide?

Impugned judgment of DRT dated 19.06.2018 is set aside. DRT to decide application afresh after affording Bank opportunity to file expert opinion and parties opportunity for rebuttal.

Bank Of Baroda versus Waheda Sultana — Banking and Recovery | DRAT (2025)

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Reportable/Non-Reportable

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Appeal No. 285 of 2018-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Appeal No. 285 of 2018

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(Arising out of O.A. 45 of 2007 in DRT-I, Hyderabad)

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Bank of Baroda, Asset Recovery Management Branch, No. 103 & 104, 1^st Floor, Babukhan Estates, Basheerbagh, Hyderabad – 500 001, Telangana.

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… Appellant

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-Versus-

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Waheeda Sultana, Wife of Late Mir Sadiq Hussain, R/o. 12-12-446, Plot No. 1, Street No. 1, Tarnaka, Secundereabad;

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Mr. Wajid Hussain, son of Late Mir Sadiq Hussain, R/o. 12-13-446, Plot No. 1, Street No. 1, Tarnaka, Secundereabad;

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Mr. Syed Raheem, S/o Syed Suban, 6-3-663/20, 1^st Floor, Punjagutta, Hyderabad.

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… Respondents

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Counsel for Appellants … Mr. Avishek Guha Ms. Ritika Pal Counsel for Respondent s … None JUDGMENT : 13^th January, 2025

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THE APPELLATE TRIBUNAL :

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1. Instant appeal has arisen against judgment and order dated 19^th June, 2018, passed by Learned DRT-I, Hyderabad, in O.A. 45 of 2007 (Vijaya Bank -vs- Waheeda Sultana & Others). Learned DRT has dismissed the O.A. against Defendant No. 1, i.e. Waheeda Sultana and allowed the same against Defendants No. 2 and 3 ex parte.

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2. Feeling aggrieved, Appellant Bank preferred the appeal. 3. I have heard the Learned Counsel for Appellant. Despite service and granting sufficient time, none appears

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Appeal No. 285 of 2018-DRAT-Kolkata for the Respondents although opposition is filed by Respondents No. 1 and 2.

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4. An O.A. was filed by the Appellant Bank for recovery of a sum of Rs.15,11,720.00 against Defendants No. 1, 2 and 3 before the DRT with the assertion that an amount of Rs.15.00 lac was sanctioned by the Bank in favour of Defendants No. 1 and 2 on 23.04.2004. Articles of Agreement were executed. All the relevant documents were also executed. Defendant No. 3 stood Guarantor for loan. Letter of Guarantee was executed, Promissory Note was also executed. Defaults were committed in payment of loan amount and the account was classified as N.P.A. SARFAESI Proceedings were initiated for recovery of outstanding dues. S.A. 13 of 2007 was filed challenging the same. 5. Defendant No. 1, Waheeda Sultana, filed written statement before the Learned DRT challenging signatures on the loan documents. It is further stated that she was impersonated before the Bank Officers. She filed a criminal complaint before the Magistrate having jurisdiction. Specific plea challenging the signatures was taken along with a plea that photograph on the loan documents are also not of Defendant No. 1.

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6. Defendants No. 2 and 3, despite service, did not appear before the Learned DRT. Learned DRT recorded statement of Mr. Divakar Shetty, Chief Manager of the Bank as AW-1 and Defendant No.1 as DW-1. Learned DRT framed following issues:

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Appeal No. 285 of 2018-DRAT-Kolkata

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(1) Whether the Appellant is entitled to the claim as made in the O.A. against Defendants No. 1 to 3?

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(2) To what relief?

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7. Learned DRT recorded a finding on the basis of his own observation to the effect that signatures on the loan documents did not tally with the signatures of the Defendant No. 1 and the photograph is also mismatching. Accordingly, Learned DRT dismissed the O.A. against Defendant No. 1 but allowed the same against Defendants No. 2 and 3 ex parte.

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8. Learned Counsel for Appellant would submit that Learned DRT has erred in recording the finding on the basis of its own observation. If the Learned DRT was of the opinion that signatures on the loan documents did not tally with the signatures of Defendant No. 1 then the expert’s opinion should have been summoned from the Bank. Further it is submitted that Learned DRT has not considered the judgments of the Learned Magistrate as well as of the Learned Civil Court wherein there was a finding that plea of impersonation or forgery could not be established by Defendant No. 1.

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9. As far as findings of the Learned DRT are concerned they are basically based upon the observations made by the Learned DRT. No doubt, it is settled legal proposition that Court is expert of experts but at the same time while recording finding about the handwriting or signatures for comparison it is incumbent upon the Courts to record specific finding on what grounds they are recording their

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Appeal No. 285 of 2018-DRAT-Kolkata findings. In the present case, specific challenge to the signatures was made by Defendant No. 1 that the loan documents were not signed by her. In that case burden lies upon the Appellant Bank to prove that the signatures on the loan documents are of Defendant No. 1. Here the signatures of Defendant No. 1 should have been proved by filing an Official Expert Opinion. As far as photograph is concerned, expert opinion can also be obtained in this regard.

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10. In the circumstances, I am of the considered opinion that Learned DRT has erred in recording its finding on the basis of its own observation without affording an opportunity to the Bank to file the expert opinion to prove its case. Accordingly, matter is liable to be remanded to DRT for deciding afresh.

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O R D E R E D

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Appeal is allowed. The impugned judgment and order dated 19^th June, 2018, passed by Learned DRT-I, Hyderabad, in O.A. 45 of 2007 (Vijaya Bank -vs- Waheeda Sultana & Others), is set aside. Learned DRT should decide the O.A. afresh after affording opportunity to the Appellant Bank to file expert opinion. Thereafter, Learned DRT should also give opportunity of rebuttal to the Defendants and decide the O.A. after affording opportunity of hearing to the parties. This order is passed as far as Defendant No. 1 is concerned. As far as Defendants No. 2 and 3 are concerned, they have not challenged the impugned judgment; accordingly, judgment of the DRT attained finality in respect of Defendants No. 2 and 3.

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Appeal No. 285 of 2018-DRAT-Kolkata

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No order as to costs.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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File be consigned to Record room.

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Order pronounced in open Court.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 13^th January, 2025 13/ac

Bank Of Baroda v. Waheda Sultana

Case brief

What is this about?

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Bank Of Baroda v. Waheda Sultana

Case brief

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