Central Bank of India vs Md. Anowarullah and Others

P.G. Agarwal, J.—This first appeal is directed against the judgment and decree passed by the Asstt. District Judge, No. 1, Guwahati in Title Suit No. 14/87 on 2.3.94, whereby the suit of the Plaintiff was dismissed.

The Appellant-Plaintiff, Central Bank of India, herein after referred as bank instituted T.S. No. 14/87 praying for a decree of Rs. 12,53,390.13p. being the amount of loan given by the bank to the Defendant-Respondent. The Plaintiff also sought preliminary decree against the Defendant No. 1 for the sale of the property described in schedule of the plaint. The case of the Petitioner is that Defendant obtained cash credit facility from the bank, initially, the limit was fixed at Rs. 50,000/-. The limit was subsequently raised and Defendant No. 1 executed Demand Promissory note and other documents in favour of the bank and the documents were mortgage. The Defendant Nos. 2, 3, 4 stood surety in respect of the said loan. According to the bank, amount due as on 15.1.87 was Rs. 12,53,390.13p. inclusive of interest as Defendant failed to make payment inspite of demands made, the bank instituted the suit.

All the 4(four) Respondents filed a joint written statement, wherein the Defendants admitted taking of loan to the extent of Rs. 3 lakhs on hypothecation of documents. The Defendant, however, denied the other statements made in the plaint.

It may be mentioned here that during the pendency of this appeal, Defendant No. 1 died and this Court vide order dated 13.8.2001 held that as the wife and sons of Defendant No. 1 are already on record, substantially represents the interest of the deceased-Defendant No. 1 and accordingly appeal/suit shall proceed against Defendant Nos. 2, 3 and 4 i.e. against them individually and also as legal heirs of the deceased-Defendant No. 1.

Upon pleadings of the parties, the learned Trial Judge framed following issues:

Is there any cause of action for the suit?

Whether the suit is time barred ?

Whether the suit is framed properly ?

Whether the Plaintiff is entitled to a decree as prayed for ?

To what relief or reliefs the parties are entitled?

Additional Issues:

3 (a) Whether newly substituted Plaintiff has acquired right, to realise the suit amount?

Whether the Defendant took the suit loan from the Plaintiff bank as alleged in the plaint?

Whether the suit is bad for non-joiner of necessary parties ?

During the trial, the Plaintiff examined one witness and produced exhibited 45 documents. The Defendant had examined himself. There was documentary evidence on behalf of the Defendant. The learned Trial Judge decided issues No. 3,3(a), 7 and issue No. 4 in favour of the Plaintiff. Issue No. 6 was decided partly in favour of the Plaintiff. However, Trial Court held that suit was barred by limitation and as such, issue Nos. 1 and 2 were decided against the Plaintiff and the Suit was dismissed. The Respondent - Defendant had not filed any appeal or cross-appeal in respect of the issues decide4 against them.

On perusal of the impugned judgment, it is seen that the learned Trial Judge decided the mater against the Plaintiff Bank mainly on the two grounds: (i) That the statement of account, Ext.45 produced by the bank was not properly certified under the Bankers Book Evidence Act, 1891. (ii) That the suit was barred by limitation.

The relevant observation of the Trial Court in respect of Ex.45 reads as follows:

Apart from this, Ext,45 stated to be the certified statement of account, but on careful consideration, I do not find it to be certified in terms of Banker''s Book Evidence Act. Certified copy has been defined u/s 2(8) of Banker''s Book Evidence Act, 1891. But Ext.45 does not appear to be certified in terms of that provision. Of course one stamp containing the necessary certificate has been affixed on each page of the statement of account, but the said rubber stamp has not been duly subscribed by the competent Officer of the bank. The Defendant has challenged the authenticity of the Ext.45 and the Plaintiff has totally failed to substantiate the authenticity of Ext.45 by producing relevant papers and books available in their custody and as such this Court finds difficulty in accepting Ext. 45 as a certified copy of statement of account on which the Plaintiffs claim can be entertained.

We have perused Ext. 45 which contains 47 pages and find that in each and every page is certified by way of seal impression and each and every page is signed by authorised Officer of the bank. Thus, we have no hesitation to hold that Ext.45 is certified copy as defined in clause 8 of Section 2 of the Bankers Book Evidence Act, 1891.

At this stage, we would like to record our approval of the following observation of the Hon''ble Bombay High Court in the case of Radheshyam G. Garg v. Smt. Safiabai Ibrahim Lightwalla reported in AIR 1988 Bombay 361:

Where the extract of account was duly signed by the Agent of the bank, implicit in it was a certificate that it was a true copy of an entry contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book was in the custody of the bank and it would be admissible in evidence. The detailed ingredients mentioned in the defining Clause 8 of Section 2 of Banker''s Books Evidence Act, 1891 for qualifying to be ''certified copy'' are not mandatory but merely directory. Sufficient compliance depending upon facts and circumstances of each case is enough to qualify a document to be ''certified copy''.

In this case, we find that taking of loan as such, is admitted by the Defendant in their joint written statement. It was stated that they had pledged their documents regarding their immovable property with the bank. There is oral evidence of the bank Officers supported by the relevant documents. In this case, we find that the documents, Ext.45 is made an entries and accepted as an evidence without any objection whatsoever from the Defendants. Hence, in view of the decision of the Apex Court in the case of State Bank of India Vs. Yumnam Gouramani Singh, it is held that the document Ext. 45 is duly certified document and the claim of the Plaintiff bank cannot be thrown out on the above count.

Regarding issue No. 2, limitation, the trial Court held that the transaction between the bank and the Defendant took place during the period from 1975-83 and thereafter, there was no transaction. The Plaintiff bank, however, produced and proved Exts. 41,42, 43 and 44 to show that the balance of the account was confirmed by the Defendant No. 1 till 3.-2.1986. The suit was filed on 16th of January, 1987.

The learned Trial Judge, however, held that the mere confirmation of balance by the loanee cannot save the Plaintiff from limitation. unless there is transaction and acknowledgment of the debt by the loanee. The Trial Court further observed as follows:

Ext.41 to 44 show that balance was communicated to the Defendant No. 1 who acknowledged receipt of information about outstanding balance cannot save the limitation. This is a suit pure and simple for recovery of an amount stated to be outstanding against the Defendant and the limitation for such claim is 3 years.

The learned Counsel for the bank has submitted that this is not a simple money suit. This is a suit for mortgage and even the Trial court had registered it as Title Suit No. 14/87. The relevant portion of the bank confirmation Memo, Ext.44, which contains the signature of the Defendant No. 1 (Since deceased) at Ext.44(1) reads as follows:

BALANCE CONFIRMATION MEMO

THE PURBANCHAL BANK LTD.

H.O. GAUHATI

No. Office Kumarpara

Date 8.1.1986

Md. Anwar Ullah, Kumarpara Guwahati-1.

Dear Sir(s)/Madam,

Please note that your a/c No. NGPS-3 was balanced at the close of business on 31.12.86 and it showed a balance of Rs. 10,08,404.08 (Rupees Ten lacs eight thousand four hundred four & paise eight only) to your credit/debit.

If you are satisfied as to the correctness of this balance kindly sign below and return this confirmation form entire. Should you confirmation be not received within one month from this date, the bank will conclude that you admit the balance stated herein as correct.

Yours faithfully, Sd/- Eligibie Acctt/Agent.

To

THE PURBANCHAL BANK LTD. OFFICE Kumarpara

Dear Sirs,

I/we hereby confirm the correctness of the above statement.

Sd/- Eligible Anwar Ullah 3.2.1986.

Besides Exts.41 to 44, we find that the bank produced other proved documents, namely, demand promissory note, Ext.25, letter of conformity, Ext.27 and hypothecation of Debts & Moveable Assets. Ext.28 and Ext 29. All the above documents exhibited by Defendant No. 1 are dated 18.1.1984, where the amount of loan is mentioned. Ext.32 is Anr. letter of borrowing where the Defendant No. 1 was undertaking to re-pay the loan, likewise, Ext.33 is the letter of guarantee signed by the Defendants-Respondents No. 2, 3 & 4 on 18.1.1984. As stated above, the Suit was filed on 16.1.87 i.e. within 3(three) years of the execution of the above documents, wherein the Defendants acknowledged the liability.

On perusal of the evidence on record, we find that the learned Trial Judge fell into patent error in holding that the suit was barred by limitation inspite of the documents/acknowledgments of the Defendants was accordingly decided in favour of the Appellant-Plaintiff.

While deciding issue No. 4, the Trial Court held that as the Plaintiffs claim was barred by limitation, and as such, it is not entitled to a decree. The above finding and the judgment and decree passed by the Trial Court is hereby set aside. In the result, suit stands decreed and Defendants are liable to make payment of Rs. 12,53,390.13p as prayed for. The Appellant-Plaintiff is also entitled for a preliminary decree in respect of the moveable property. The Plaintiff is also entitled for further interest at the rate of 6% in the above decretal amount from the date of institution of Suit till realisation of the amount. The appeal stands allowed with cost.