Dismissed

Central Bank of India v. Suresh Kumar Sharma and Ors.

Chhattisgarh HC26 Nov 2012FA/304/1996

Case brief

AI extract

What is this about?

This is a first appeal by a bank against a dismissal of a recovery suit. The High Court held that the bank failed to prove the execution of loan documents and that bank account entries alone could not charge respondents with liability without corroborative evidence.

What did the court decide?

The appeal was dismissed with no order as to costs and a decree was directed to be drawn accordingly.

Central Bank of India Vs Suresh Kumar… — Contract and Commercial Disputes | Chhattisgarh HC (2012)

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IN_THEJ1ISH_COURT OF JUDIGATtJKE &T JAB ALPUR
PZRST APPEAL ITO.Spl-.^. ./96
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APPELL&NT '•--.
StS GENTPAL BAHK OF IN'DIA,
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rA-.—.-BEapONDBNTS Suresh Kumar Sharma & 2 others.
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FIRST ApfEAI, U/S 96 OE 03DE OF GIVXL FROCEDUEE

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HIGH COURT OF CHHATTISGARH AT BILASPUR + First Appeal No. 304 of 1996

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Cenral Bank of India

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Vs.

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Suresh Kumar Sharma and others.

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Post forpronouncement ofjudgment/order on ^,")/11/2012

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N. K. Agarwal

Sfc /11/2012'

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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F.A. N_o. 304 of 1996

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APPELLANT Central Bank of India, A Pliantiff Corporated body (Constituted under the Banking Company Acquisition and Transfer of undertaking Act, 1970), Through - its Branch Manager, Central Bank of India, Kamptee Line, at and post/District Rajnandgaon, M.P. Versus RESPONDENTS 1. Suresh Kumar Sharma, son of Defendants Manoharlal Sharma, aged about 35 years, Proprietor Laxmi Kirana Stores, Bharkapara, Rajnandgaon, M.P. 2. Shanti Bai wife of Mohginla Sharma, aged about 45 years, Through Laxmi Kirana Stores, Bharkapara, At/Post-District Rajnandgaon, M.P. 3. Prakash Kankaria son of _, aged about 50 years, Proprietor, Panchsheel Decorators and Tent House, Kamptee Line, Rajnandgaon, M.P.

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FIRST APPEAL UNDER SECTION 96 OF CIVIL PROCEDJJRE CODE

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SB:- HON. SHRI N.K. AGARWAL. J.

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PRESENT:-

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Shri B.D.Gura, counsel for the appellant. Shri Anand ShuMa, counsel for respondent No.2. Shri Hemant Gupta, counsel for respondent No.3 None for respondent No.l

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JUDGMENT

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(Delivered on^7.11.2012)

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This is plaintiffs first appeal filed under Section 96 of the Code of Civil Procedure (for brevity the C.P.C.') against the

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judgment and decree dated 13.03.1996 passed in Civil Suit No. 44B/1990 by the 2nd Additional District Judge, Rajnandgaon, whereby the plaintiffs suit has been dismissed.

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Facts necessary for disposal of this appeal are as under:-

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(i) The plaintiff-Bank filed a civil suit for recovery of Rs.67,739.40 against the respondents/defendants.

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ii) It is the plaintiffs case that on the application of defendant No. 1 - Suresh Kumar Sharma for grant of loan for Kirana Shop on 4.9.1982, the plaintiff-Bank granted a term loan of Rs.33,750/- on 5.10.1982, which was repayable in 25 inonthly installments. Defendant No.l executed a promissoiy note and letter of waiver. Defendant No.2 and 3 stood as guarantors and also executed guarantee deed.

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iii) Defendant No. 1 remained ex parte. The defendants No. 2 8s 3, by filing written statement, have denied the plaintiffs entire claim including execution of documents.

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(iv)

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The trial Court framed the following issues.

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(v) The plaintiff examined one Tapan Kumar Dey as its witaiess whereas Shand Devi was examined on behalf of defendants No.2 SE 3.

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(vi) The trial Court, on close scrutiny of the evidence led, havin^ found, the plaintiff failed to prove its case and the suit is also barred by limitation, dismissed the suit. Hence, this appeal.

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Shri B.D.Guru, learned counsel appearing for the appellant, by referring to the statement of account Eled by the plaintiff-Bank along with plaint, would submit: the same being certified copy of the account, is admissible under Section 4 of the Bankers Book Evidence Act, 1891 (for brevity 'Bankers Act') and the trial Court

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has fallen in error in dismissing the suit ignoring the above material piece of evidence.

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On the contraiy, Shri Anand Shukla and Shri Hemant Gupta, learned counsel appearing for respondents No.2 Ss 3 supported the judgraent and decree impugned and submitted: the plaintiff utterly failed to prove due execution of the documents alleged to be executed by the defendants by examining the person who got the documents executed and/or a person in whose presence^{thedocurnentswereexecutedbythedefendants.} It was incumbent on the Bank to produce some other evidence besides the statement of the accounts so as to show that the said accounts had been correctly maintained and reflected the true state of affairs. As the same has not been produced by the plaintiff-Bank, the trial Court has rightly dismissed the suit.

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I have heard leamed counsel for the parties and perused the record of trial Court including judgnient and decree impugned.

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Indisputably, Tapan Kuxnar Dey, a person examined by the plaintiff-Bank, was neither present at the time of alleged execution of documents by the defendants nor the defendants have put their signatures in his presence nor the defendants were personally known to him.

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The execution of the docuruents means that the executant raust have signed only after the contents of the documents have

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been fully stated and read by the executant before they put their signatures thereupon. Mere admission of the initial by the executant would not be tantamount to an admission of execution of the documents. Por the reasons best known to the plaintiff, it did not examine fhe Officer-in-Charge of the Bank, who got the documents executed from the defendants nor did examine a person in whose presence the documents were executed. The plaintiff-Bank further failed to establish the docuruents have been read over to the defendants and only thereafter they had put their signatures.

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The matter can be looked from another angle also. As per the plaintiffs case, the loan was repayable in 25 aionthly installments, but there is nothing in the document by which it can be inferred that the loan was repayable in 25 monthly installments.

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It is trite law, mere marking of a document as an exhibit does not dispense with its proof of documents (please see Sait Tara/ee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865).

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So far as the certified copy of Bank account is concerned, Secdon 4 of the Bankers Act gives a special privilege to Banks and allows cerdfied copy of their accounts to be produced by thera and those certified copies become prima facie evidence of the existence of the original entries in the accounts and are admitted as

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evidence of matters, transactions and accounts therein, but such adraission is only where, and to the same extent as, the original entry itself would be admissible by law and not further or otherwise. Original entries alone under Secdon 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under Section 4 of the Bankers Act obviously cannot charge any person with liability. Therefore, where the entries are not admitted it is the duty of the bank if it relies on such enta-ies to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence. But no person can be charged with liability on the basis of mere entries whether the entries produced are the original entries or copies under Section 4 of the Bankers' Act (please see Chandradhar Goshwcuni and others v. Gauhati Bank Ltd., AIR 1967 SC 1058 and Shcishi Addi-Chemi Indastries v. Punjdb National Bank, I (1996) BC 264)

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Therefore, as the plaintiff utteriy failed to prove execution of documents by the defendants and has also not adduced evidence to corroborate the certified copy of bank account filed in the case, therefore, in ray opinion, the trial Court has not committed any error in holding the suit as barred by limitation and also that the plaintiff failed to prove its case and thereby in dismissing the plaintiffs suit.

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