JUDGMENT 1. - M/s Corporation Bank instituted a civil suit for recovery of Rs. 72.058.62 P. against the defendants. It had been pleaded in the plaint that upon request by the defendants Industry, the plaintiff-Bank accorded facility of over-draft in their favour; and that, after May 3, 1985. the defendants did not redeem and amount allowed to be drawn under the said facility, of over-draft, and thereby till 31.12.1985, in all a sum of Rs. 67,918.62p. on the date of filing of the suit. The interest @ 180% p.a. has also been claimed over the due amount in the suit. 2. Admittedly, no written statement to the plaint has been filed on behalf of the defendants on one reason or the others till 20.11.1987. Pertinently to mention here that the trial Court ordered on 17.9.87 directing the defendants to submit their written statement by 17.10.1987 (next date fixed by it) failing which it would proceed under Order 8 Rule10. C.P.C. However, on 17.10.87, on behalf of the defendants their counsel appeared and prayed for adjournment to file written statement which was opposed on behalf of the plaintiff but the trial Court allowed time to do so awarding costs at Rs. 200/- and the case was adjourned to 20.11.1987. 3. On November 20, 1987, the trial Court proceeded under Order 8, Rule 10, CPC against defendant No 1 Industry and then heard the plaintiff and under its judgment under challenge in this appeal, decreed the plaintiff's suit. Hence this appeal. 4. learned Counsel for the defendant No. 1 appellant contended that merely by passing an order under Order 8 Rule 10, CPC the contents of the plaint, itself, cannot be deemed to have been proved, that too, without examining any witness or producing any documents to support the averments of the plaint. In this regard, it has been pointed out that only a copy of statement of accounts has been produced but, according to the defendant No. 1, it has also not been proved or exhibited. So, Shri Garg urged that the trial court has passed the impugned decree in the absence of the evidence on record. 5. Shri Garg also added that merely by submitting a copy of the statement of accounts maintained by the plaintiff Bank it cannot be taken that the entries shown in those statements are sufficient to fasten with liability upon the defendant. 6. 5. Shri Garg also added that merely by submitting a copy of the statement of accounts maintained by the plaintiff Bank it cannot be taken that the entries shown in those statements are sufficient to fasten with liability upon the defendant. 6. Nextly, the learned Counsel for the defendant No. 1 urged that the learned trial court failed to take into consideration the provisions of Section 4 of the Banker's Books Evidence Act, and further that it misconstrued the provisions of Order 8 Rule 10, CPC and thereby it erred in holding that presumption could be drawn against the defendant of admitting the claim of the plaintiff in the absence of any written statement on their behalf. Reliance has been placed upon the decision in Chandradhar Goswami v. Gauhati Bank Ltd., 1967 SC 1058 and Ganpatlal v. Jethmal, 1983 RLR 143 . 7. Learned Counsel for the respondent on the other hand contended that the trial court has rightly proceeded against the defendant No. 1 under Order 8, Rule 10, CPC in as much as the decision of the Supreme Court referred to by Shri Garg is not applicable nor is any held to the appellant being distinguishable to the facts of the case at hand. In the decision of the Supreme Court, the defendant had filed written statement denying the liability and that being so, it had been held therein that the suit could not be decreed solely on the basis of the Bank accounts unless the same are proved. Whereas, according to the plaintiff respondent, in the case at hand, the defendant appeared before the trial court and sought adjournments to file the written statement, and despite opportunities having been afforded to the defendant, they failed to file their written statement and in these circumstances, the trial court had no option but to proceed further under Order 8, Rule 10, CPC and then to pass decree in favour of the plaintiff drawing adverse inference for admitting the liability in question, against the defendant appellant Industry. 8. I have heard the learned Counsel for the parties and perused the citations referred to by the parties. 9. I may say that the facts and circumstances of the case at hand and that of the case cited by the learned Counsel for the appellant are totally different. 8. I have heard the learned Counsel for the parties and perused the citations referred to by the parties. 9. I may say that the facts and circumstances of the case at hand and that of the case cited by the learned Counsel for the appellant are totally different. In Chandradhar v. Gauhati Bank, 1967 SC 1058 , the written statement was filed and on the basis of the pleading of the parties, seven issue were framed because several defence were raised and the suit was tried with full-fledged procedure of law. In fact, it was a case of admissibility of the Entry in Bank's Books of account in evidence. The main question urged before the Supreme Court was whether there was no evidence besides the certified copy of the account to prove that a sum of Rs. 10,000/- was advanced to the appellants therein and, in view of Section 34 of the Evidence Act, whether the appellants could not be saddled with liability for that amount. In that case, the appellants did not accept the correctness of the books of account. Their Lordships of the Supreme Court after dealing with the question posted before them in the light of the facts and circumstance of the case, held as under: No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. The original entries alone under Section 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 Banker's Books Evidence Act obviously can not charge any person with liability. 10. In view of the above observations, mere entries from bank's books of account or mere copies thereof are not sufficient to charge person with liability except where person concerned accepts correctness of entries. 10. In view of the above observations, mere entries from bank's books of account or mere copies thereof are not sufficient to charge person with liability except where person concerned accepts correctness of entries. In Ganpat Chand v. Jethmal 1983 RLR 143 , though the defendants therein failed to produce their written statement & the trial Court had proceeded under Order 1 Rule 10, CPC but in that case, instead decreeing the suit then and their, it recorded the plaintiffs evicence ex-parte & then decreedd the suit exparte. That apart, in that case, the defendants has also filed an application under Order 9 Rule 7 CPC requesting the Court to set aside its order for taking exparte proceedings, but that application was dismissed & only thereafter, as pointed out above, proceeded exparte by recording plaintiffs evidence & decreeing the suit, Against the order decreeing the suit exparte, the defendants therein preferred an appeal & in that appeal, the District Judge had set aside the order & decree of the Munsif & then remanded the case to the Munsif directing him to allow the defendants to take part in the proceedings in the suit so as to cross-examine the plaintiff's witnesses therein, but it was further directed that the defendants would not be entitled to lead evidence in rebuttal. And in misc. appeal before the High Court, the defendants came with their grievance that the District Judge had not assigned any reason for issuing direction that the defendants would have no right to examine their evidence in rebuttal. Thus, after examining the facts and circumstance of the case therein, this Court held that the defendants would be entitled to lead their evidence in rebuttal so as to demolish the case set up by the plaintiff but he would not be entitled to lead evidence on questions of fact which have been pleaded by him on account of his failure to file a written statement. 11. Having benefited by the enlightens derived from the cases cited by the learned Counsel for the appellant, I am of the opinion that the facts of the case at hand are different than those in the cases cited above. 11. Having benefited by the enlightens derived from the cases cited by the learned Counsel for the appellant, I am of the opinion that the facts of the case at hand are different than those in the cases cited above. However, in the case at hand the situation is different rather worst, if examined in the light of what has been provided under Order 8, Rule 10, CPC But, from the principles of law laid down in the cases cited above, it can very well be said that the inferences of admissions of the claim cannot be drawn against the defendant who failed to file written statement, and that in view of Section 34 of the Evidence Act which itself says that such entry alone shall not be sufficient evidence, some independent evidence had to be given by the Bank to show that any sum was advanced, and that being so, the defendants appellants cannot be saddled with liability for the sums said to have been advanced on the basis of mere entry in the account a copy thereof in the form of statement is said to have been produced alongwith plaint by the plaintiff. 12. Even according to Section 4 of the Banker's Books Evidence Act (which has been relied upon by the trial Court in the case at hand), at that the Bank did was to produce a certified copy of account, and not a mere copy thereof as has been done in the case at hand. However, though Section 4 of the Banker's Books Evidence Act gives a special privilege to Banks and allows certified copies of their accounts to be produced by them and those certified copies become prima facie evidence of the existence of the original entries in the account and are admitted as evidence of matters, transactions and accounts therein, but such admission is only where, and to some extent as, the original entry itself would be admissible by law and not further or otherwise. That apart, original entries alone with Section 34 of the Evidence Act would not be sufficient to charge any person with liability and that being so, as has been rightly held in Chandradhar v. Gauhati Bank (supra), copies produced under Section 4 of the Banker's Banker's Books Evidence Act even obviously cannot charge any person with liability. That apart, original entries alone with Section 34 of the Evidence Act would not be sufficient to charge any person with liability and that being so, as has been rightly held in Chandradhar v. Gauhati Bank (supra), copies produced under Section 4 of the Banker's Banker's Books Evidence Act even obviously cannot charge any person with liability. Thus, lending support from the view taken in Chandradhar v. Gauhati Bank (supra) and apply that view in the case at hand, the impugned decree having been passed merely on the basis of the entries that too shown in a copy and not in a certified copy of the statements of the Bank's accounts, is not sustainable because, 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 Books Evidence Act. Admittedly no other evidence has been adduced by the plaintiff nor the trial court proceeded further after passing under order 8 Rule 10 CPC. There was only a plaint of the plaintiff and an uncertified copy of the statement of accounts. And, as already observed, mere non-filing of the written statement will not amount to admission of all the facts pleaded in plant. 13. Keeping in view the observations in Modulo India v. Kamakshya Singh Deo, AIR 1989 SC 162 (see para at p.186) . Rule 10 of Order 8, CPC is only permissive in nature and it enables the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint & the averments contained therein. But, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed. However, merely because the defendants are absent, it does not mean that the plaintiff is entitled to a decree and though under Order 8, Rules 5 (1) & 5 (2), CPC if the defendant does not file the written statement it may be lawful for the Court to pronounce the judgment on the basis of facts contained in the plaint, but merely because it is lawful, it does not mean that the Court should abdicate its function of finding as to whether the plaintiff has already made out a case or not. Thus, the Court will have to scan the material available on record in order to find out whether the plaintiff has really made out a case or not. And, if the judgment within Rule 10 of CPC does not contain the points for determination then the decision thereon as required under. Order 20 Rule 4(!) of CPC is liable to be set aside. 14. A look at the impugned judgment which has been delivered within Order 8 Rule 10, CPC would show that it does not either contain the points for determination, or any discussion scanning the material on record in order to find out whether the plaintiff has really made out a case or not. In my considered view even under Order 8, Rule 5(2) CPC, it is obligatory on the part of the Court to examine the plea and the facts set out in the plaint to find out whether the plaintiff has made out a case for a decree. In other words, even in exparte cases, the Court should apply its mind tote allegations made in the plaint and should convince its conscience to find out as to whether the allegations made by the plaintiff are really sufficient and provide to the extent as to enable him to get a decree in the matter. In the facts and circumstances of the case at hand, as discussed above, the impugned judgment being not in consonance with law and rules at all, cannot be allowed to stand. 15. In the case at hand, after filing the suit, the plaintiff could succeed in getting the notices served by way of publication in the news papers. The plaintiff had taken more than one year. On behalf of the defendant No. 1, a vakalatnama had been filed on 22.4.87. Only on 10.7.87, a copy of the plaint was given to the defendant No. 1. Thereafter till 17.8.1987, none be taken on account of presiding officer's leave and transfer. On 17.9.87, none appeared on behalf of the defendants but, on 17.10.1987, as point out above, time was granted to the defendant to file written statement at the costs till 20.11.1987. On which date, the decree was issued by pronouncing the judgment under Order 8, Rule 10, CPC. On 17.9.87, none appeared on behalf of the defendants but, on 17.10.1987, as point out above, time was granted to the defendant to file written statement at the costs till 20.11.1987. On which date, the decree was issued by pronouncing the judgment under Order 8, Rule 10, CPC. Having considered the facts and circumstances of the case at hand, in my considered view, it is not a case where the defendants had adopted dilatory tactics and tried to unduly prolong the proceeding. inasmuch as it is also not the plaintiff's case that the defendant was determined to prolong the proceedings. However, in the facts and circumstances of the case, the trial court was not justified in proceeding exparte without affording proper opportunity to the defendants to represent their defence. Since the plaintiff also did not lead any evidence is support of its claim, so, in the interest of justice, I deem proper that both the parties should be allowed proper opportunity to put their respective cases before the trial Court. 16. In the result, the judgment & decree of the trial Court challenge in this appeal are set aside. The appeal is allowed. The suit is restored to file. The trial Court should take it back to file and proceed with the suit. The court below should, however, give one more chance to the defendants to file their written statement, on or before 13.4.1992, but before it, both the parties are directed to appear before the trial Court on 5.3.1992 in order to receive further instructions in the matter. 17. It has been given out that in pursuance of the conditional stay order of this Court granted on 23.5.1988, a sum of Rs. 72,0007- had been deposited by the appellants (defendants) in the treasury which was allowed to be withdrawn by the Bank under the order dated 4.9.89 upon its furnishing an undertaking. If the said amount has been withdrawn by the plaintiff (Bank) then it need not be repaid but it will be adjusted towards the amount awarded under a decree if any at the time of final ad-justification of the suit subject to the condition that the Bank (plaintiff) will furnish a fresh undertaking to the effect that will repay the amount of Rs. 72,000/- with interest @ 191/2% p.a from the date when it withdrew from the treasury till the realisation in case the plaintiff Bank does not succeed finally in suit. The said undertaking shall be furnished within shortest period not beyond 31.3.1992. 18. With the above observations, this appeal stands allowed. The parties will bear their own costs.Appeal Allowed. *******