JUSTICE J. M. MALIK, PRESIDING MEMBER 1. The complainant’s case revolves around the question ‘whether he had stood guarantor/security for loanee, Shri C. K. Prabhakaran and had mortgaged his FDRs as security for the said loan’. 2. The case of the complainant, Shri R. S. Vasan is that he introduced one, Shri C. K. Prabhakaran to the Canara Bank, opposite party on 22.6.1996 and the bank extended an overdraft facility to Shri C. K. Prabhakaran in the sum of Rs.1,00,000/- against immovable property to the extent of 12 ½ cents in Kainoor Village owned by Shri Vilasini, the wife of Shri C. K. Prabhakaran. 3. The complainant had no intention to be a guarantor or a surety for the said overdraft facility. However, the term deposit receipt of the complainant was with the opposite party bank in safe custody. Here lies the catch. The complainant was made to sign some blank papers. Shri Prabhakaran expired on 7.6.2001. The opposite party, Bank informed the complainant vide letter dated 22.6.2003 that the overdraft facility had been given on complainant’s security and a sum of Rs.1,36,135.50 could be liquidated against his term deposit. The complainant immediately replied denying his liability. 4. In the meantime, the bank further issued another letter on 26.11.2003 mentioning the amount due as Rs.1,45,799.30 paise. Subsequently, the bank informed the complainant that the amount under overdraft had been adjusted against term deposit of the complainant. 5. Both the fora have decided the case in favour of the complainant. The bank was directed to pay the complainant a sum of Rs.1,48,698/-. The amount adjusted towards the dues with interest @12% p.a. from 2.1.2004 till its realisation and also to pay Rs.1,000/- as costs within two months from the date of receipt of a copy of that order. The State Commission dismissed the appeal with costs of Rs.5,000/-. 6. We have heard the learned counsel for the parties. 7. Learned counsel for the respondent/complainant vehemently argued that the bank has played a fraud with the complainant. The bank should have taken action against the borrower and his family. The non-realisation of the amount due to the bank by taking prompt action was due to laches on the part of the bank’s officials. The complainant is entitled to receive a sum of Rs.2,19,889/- from the bank. Even the Chief Manager who was examined RW-1 stated that before the District Forum as per judgment of State Commission. “7…….. On going through the evidence on record and the impugned order of the Forum we are of the view that complainant did not give the said fixed deposit receipt as security for the overdraft facility availed of by the deceased Prabhakaran. Ext. R1 is the pledge letter allegedly executed by the complainant dated, June 23, 1999. Ext. R7 is the application form for sanctioning overdraft submitted by Prabhakaran. In Ext. R7, it is written that the said No. KDR172/99 in the name of the complainant is taken as security. But Ext. R7 is dated, June 21, 1999. Therefore the case of the appellant/opposite party that on the security of Ext. R2 deposit receipt, the overdraft facility was granted appears to be not correct. Ext. B2 is the renewed deposit receipt. PW1 has not endorsed on the same pledging it as security for the overdraft facility availed of by the deceased Prabhakaran. PW1 has testified that at the time of signing Ext R1 it was blank form. That apart the bank has obtained security of immovable property of 7.5 cents owned by Smt. Vilasini, wife of Prabhakaran. Therefore, there was no necessity to obtain fixed deposit receipt of complainant as security for sanctioning overdraft facility. 8. Further, if complainants stood as guarantor to the overdraft facility sanctioned to deceased Prabhakaran the Bank should have obtained a bond from him……..” 9. Learned counsel for the complainant/respondent vehemently argued that both the fora have decided the case in favour of the complainant and there is no infirmity or illegality in the order passed by the courts below. 10. After mulling over the evidence, we are of the considered view that all the assertions of the lower court are wet. This is a case of mortgage by the deposit of title deed. The starting date of the FDR has no relevance in this case. FDRs which need not be executed on the same day can be given as security. 11. It is difficult to fathom why did the complainant deposited the said FDRs with the bank. He should have kept the FDR with him. The deposit of the FDR clearly goes to show that it was a case of mortgage by deposit of title deed. 12. There is no such thing to obtain a bond from the surety otherwise, the concept of mortgage by title deed shall stand defeated. 13. Moreover, the complainant signed the blank papers at his own peril. The complainant signed the blank papers, if any, with his open eyes and on his own volition. Even if he has signed the blank papers, he did it at his own peril. We have come across few authorities which go a long way to embolden the case of Bank. See, Mrs. Margret Lalita Samuel Vs. Indo Commercial Bank AIR 1979 SC 102, Syndicate Bank vs. Vijay Kumar AIR 1992 SC 1066, Kuldeep Singh Versus Nanak Singh 2008 IV PLR 276, and Grasim Industries Vs. Aggarwal Steel 2009 Part IV SCC 598. It must be borne in mind that it is the complainant who is to carry the ball in proving that the complainant was made to sign the blank papers fraudulently or under coercion. 14 It is well settled that it is the choice of the bank to recover the money either from the guarantor or the borrower. It is abhorrent from the principles of law to say that the Bank must first of all recover the money from the borrower and thereafter it can proceed against the guarantor. We say it repeatedly that it is the choice of the bank and not of the borrower or the surety. 14. For all these reasons, we hereby set aside the order passed by both the fora below and dismiss the complaint. There shall be no order as to costs. 15. The revision petition stands disposed of accordingly. | 
