Appellate court modifies decree, allows direct recovery against defendant. Defendant's appeal dismissed, plaintiff's appeal allowed.

The appellate court modified the trial court's decree by setting aside a conditional clause, allowing the plaintiff to proceed directly against the defendant for the recovery of the suit amount. The defendant's appeal was dismissed, and the plaintiff's appeal was allowed, with no order as to costs.

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Issues Involved:
1. Entitlement of the plaintiff to the suit claim.
2. Maintainability of the suit as framed.
3. Reliefs to which the parties are entitled.

Issue-wise Detailed Analysis:

1. Entitlement of the Plaintiff to the Suit Claim:
The plaintiff, a nationalized bank, filed a suit for a decree against the defendant for Rs. 39,030.90 with interest at 17.5% per annum. The claim was based on a cash credit facility granted to M/s. Ramesh Textiles, for which the defendant allegedly stood as a guarantor. The defendant denied knowledge of the cash credit facility and the guarantee, asserting that the signature on the guarantee document (Ex.A-2) was not his. The trial court found the defendant liable to pay the claimed amount plus interest, but the execution of the decree was conditional upon first proceeding against the principal debtor and his properties.

2. Maintainability of the Suit as Framed:
The defendant argued that the suit was not maintainable, claiming no acquaintance with the principal debtor and denying the execution of the guarantee. The trial court, however, found the suit maintainable and decreed in favor of the plaintiff, subject to certain conditions regarding the execution of the decree.

3. Reliefs to Which the Parties are Entitled:
The trial court decreed that the defendant was liable for the suit amount but stipulated that the decree could only be executed against the defendant after proceeding against the principal debtor and his properties. Both parties appealed: the defendant contested the entire decree, while the plaintiff challenged the conditional execution clause (Clause-IV).

Detailed Analysis:

Comparison of Signatures:
The trial court compared the disputed signature on Ex.A-2 with the admitted signature on Ex.A-5 and the defendant's signatures on the vakalath and written statement. The court found the signatures to be similar, concluding that the defendant had executed the guarantee. The appellate court, however, noted that the trial court erred in comparing signatures obtained after the dispute arose. It emphasized that the comparison should be with contemporaneous signatures to ensure accuracy.

Burden of Proof:
The appellate court criticized the trial court for shifting the burden of proof to the defendant. It reiterated that it was the plaintiff's duty to prove the authenticity of the disputed signature. The appellate court also highlighted that the plaintiff should have sought an expert opinion on the disputed signature, as suggested by precedent.

Admissibility of Evidence:
The appellate court acknowledged that while courts have the power to compare disputed signatures with admitted ones under Section 73 of the Indian Evidence Act, prudence demands caution. The court referred to several judgments emphasizing that expert opinion is not the sole method of proving handwriting and that courts can independently compare signatures if necessary.

Admission by Defendant:
The appellate court noted that the defendant admitted his signature on Ex.A-5, which detailed his assets and properties. This admission was considered significant evidence against the defendant, despite his later retraction. The court held that the admission, unless satisfactorily explained, furnished the best evidence.

Conditional Decree:
The appellate court found Clause-IV of the trial court's decree, which required the plaintiff to first proceed against the principal debtor, to be against the law. Citing Section 128 of the Indian Contract Act and relevant Supreme Court judgments, the appellate court held that the liability of the guarantor is co-extensive with that of the principal debtor. Therefore, the plaintiff could proceed directly against the guarantor without first exhausting remedies against the principal debtor.

Conclusion:
The appellate court modified the trial court's decree by setting aside Clause-IV, allowing the plaintiff to proceed directly against the defendant for the recovery of the suit amount. The appeal filed by the defendant was dismissed, and the appeal filed by the plaintiff was allowed, with no order as to costs. The decree of the trial court was modified accordingly.

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