STATE BANK OF INDIA vs RAJESH SINGH

CM Appl. No. 43750/2016 (delay of 230 days) in RFA No. 914/2016

Respondent has not appeared in spite of service by publication.

There is therefore no opposition to this application and which is

allowed and delay of 230 days in filing the appeal is condoned. Respondent is proceeded ex-parte. It is noted that

respondent/defendant was also ex-parte before the trial court.

CM stands disposed of.

RFA No. 914/2016

This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff/bank

impugning the judgment of the trial court dated 7.12.2015 by which

the trial court has dismissed the suit filed by the appellant/plaintiff

bank for recovery of Rs.9,93,685/-. The suit has been dismissed

although respondent/defendant proceeded was ex-parte, and therefore,

respondent/defendant had not filed written statement or led evidence.

The suit has been dismissed on a single ground that statement of

account filed by the appellant/plaintiff/bank as Ex.PW1/7 was not

certified as per Section 65-B of the Indian Evidence Act, 1872.

The facts of the case are that the respondent/defendant

was granted by the appellant/plaintiff/bank a loan for purchasing a

vehicle namely "Mahindra Xylo" bearing registration no.

DL1YC8198. A loan of Rs.7,25,000/- was sanctioned in terms of the

loan agreement dated 24.1.2012 and which was to be repaid in 84 equated monthly installments of Rs.12,798/- each.

Respondent/defendant has however failed to pay the loan amount and

regularly monthly installments, and therefore the subject suit was filed

after serving a legal notice dated 26.11.2014.

Para 7 of the impugned judgment which refers to various

documents being proved by the appellant/plaintiff/bank reads as

under:-

"7. In order to prove its case, plaintiff has examined Sh. A.K. Chauhan, as PW-1, who tendered his evidence by way of affidavit and proved on record his affidavit Ex.PW-1/A. PW-1 reiterated the averment made in the plaint in his examination in chief. PW-1 further exhibited the documents, i.e. true copy of State Bank of India Notification dated 27-3- 1987 exhibited as exhibit PW1/1 in his affidavit (the same is de-exhibited and marked as mark A being the photocopy). Loan application form dated 11-2-2012 as Ex.PW 1/2, the appraisal of car loan dated 11-2-12 as Ex.PW1/3, Arrangement letter dated 11-2-2012 as Ex.PW1/4, Loan cum hypothecation agreement dated 11-2-2012 as Ex.PW1/5, invoice of the car and the registration certificate & other documents as Ex.PW1/6 (Colly), true copy of the statement of account as Ex.PW1/7, Legal notice dated 26- 11-2014 along with postal receipts as Ex.PW1/8 and postal envelope containing the legal notice dated 26-11-2014 as Ex.PW1/9."

As already stated above, the suit has been dismissed by

holding that the statement of account Ex.PW1/7 is not certified as

required under Section 65-B of the Indian Evidence Act.

In my opinion, trial court has erred in dismissing the suit

on the ground of non-certification of the statement of account under Section 65-B of the Indian Evidence Act inasmuch as an objection as

to mode of proof of a document, unless the same is taken, the same is

deemed to be waived in view of the judgment of the Supreme Court in

the case of R.V.E. Venkatachala Gounder Vs. Arulmigu

Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.

The respondent/defendant being ex-parte, the deposition of the

appellant/plaintiff''s witness was not challenged as regards the mode of

proof of the statement of account as Ex.PW1/7. Once that is so, trial

court could not have held that the statement of account could not be

looked into because of Section 65-B of the Indian Evidence Act as

mode of proof of statement of account was not as per law viz. Section

65-B of the Indian Evidence Act .

In view of the above discussion, this appeal is allowed.

The impugned judgment of the trial court dated 7.12.2015 is set aside.

Suit of the appellant/plaintiff/bank is decreed for a sum of

Rs.9,93,685/- along with the pendente lite and future interest at 9% per

annum simple. Appellant/plaintiff will also be entitled to costs of the

suit. Decree sheet be prepared.

RFA No. 915/2016 & CM No. 43761/2016 (delay of 230 days)

This appeal will stand allowed by adopting the reasoning

given for allowing RFA No. 914/2016 and which judgment will apply

mutatis mutandis with respect to facts of the present case where the

loan was a loan of Rs. 7 lacs in terms of the loan agreement dated

24.1.2012 for purchase of a vehicle namely "Tata Indigo Manza"

bearing registration no. DL4CAL3764 and 84 equated monthly

installments were of Rs.12,357/- each. Suit is therefore decreed for a

sum of Rs.9,94,007.97 along with pendente lite and future interest at

9% per annum simple. Appellant/plaintiff will also be entitled to costs

of the suit. Decree sheet be prepared.