JUDGMENT A.L Vaidya, J.- The present suit for recovery of Rs 2,56,486 35 (Rupees two lacs fifty six thousand four hundred eighty six and paisa 35 only) has been filed by the plaintiff-bank against the present defendants. The case put up by the plaintiff has been that defendant No.1 applied to the plaintiff bank at its Dhundhan Branch for the grant of a truck loan in order to augment his business of transporter. Defendant No.2, at the behest and instance of defendant No.1, voluntarily came forward and joined defendant No. 1 and agreed to stand guarantee in favour of the bank qua the loan to be sanctioned in favour of defendant No. 1. It was further pleaded that on the strength of the guarantee executed by defendant No. 2 and also on representation of defendant No. 1 the plaintiff-Bank sanctioned a truck loan facility of Rs. 1,40,000 in favour of defendant No. 1 and, as such, defendants No.1 and 2 executed a duly stamped memorandum of agreement dated 5th January, 1981 in favour of the plaintiff bank evidencing the aforesaid loan sanctioned in favour of defendant No. 1 which was duly availed of by defendant No.1. According to the plaintiff, in the said memorandum of agreement, the defendants agreed to repay the truck loan of Rs. 1,40,000 to the plaintiff-bank in equal monthly instalments, that is, in thirty equal monthly instalments alongwith interest at the rate of 12-1/2 per cent per annum with quarterly rests for value received. The first such instalment was to commence from the month of February 1981 and each subsequent instalment was to be paid by the defendants on or before 1st of each and every succeeding calendar month. At that very time defendant No. 1 also executed agreement relating to term loan dated 5th January, 1982. 2. The plaintiffs further case has been that the above referred truck loan was utilized by defendant No 1 for the purchase of truck bearing Engine No. 692 Dol 031618, chassis No. 34407 30 29840 Make and Model TDV 1978, which was given registration No. HPA 875 It was further pleaded that the defendants failed to adhere to the repayment schedule and continued to violate the financial discipline of the Bank and in this behalf the defendants were several times called upon by the plaintiff-bank to liquidate their liability but to no avail. The plaintiff-bank finally se? The plaintiff-bank finally se? t a legal demand notice to the defendants on 18th September, 1984 but to no avail It was also averred that as per the statement of accounts filed with the plaint, duly certified under the Bankers Book Evidence Act, a sum of Rs. 1,88,806 was due from the defendants to the plaintiff-bank inclusive of interest upto 31-12-1984 The plaintiff further alleged that the defendants were liable to pay interest from 1-1-1985 to 20-6 1987 which amount of interest comes to Rs 67,680 35 and hence the present suit for recovery of Rs. 2,56,486.35, 3. The plaintiff-bank also pleaded that defendant No. 1 called on it on 23-10-1982 and executed a duly stamped balance confirmation and admitted and acknowledged that a sum of Rs 1,38,424.83 was due which amount was inclusive of interest upto 27-6-1982. According to the plaintiff-bank, similarly the first defendant again called on the plaintiff-bank on 23-6-1984 and admitted and acknowledged that a sum of Rs. 1,65,120.34 was due to the plaintiff-bank inclusive of interest upto December 1983. The said balance confirmation letters have been filed with the plaint. 4. It has also been averred in the plaint that the plaintiff has been a body corporate duly constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and one Mr M.C. Chhajeria was the Manager of the Dhundhun Branch of the Bank who was the principal officer of that branch and Mr. D.R. Thakur was an officer of the United Commercial Bank. It was also pleaded that Mr. M.C. Chhajer was duly competent to institute and file the present suit, engage the services of counsel etc., being duly constituted attorneys of the plaintiff-bank. 5. On the basis of the aforesaid allegations the plaintiff prayed that a decree in favour of the plaintiff and against the defendants for a sum of Rs. 2,56,486 35, with future interest at the rate of 12-1/2 per cent per annum, with quarterly rests, till realization of the entire decretal amount, be passed with costs. 6. Defendant No.1, Shri Durga Ram, has been proceeded ex-parte while defendant No.2 contested the suit and put in his written statement taking various preliminary objections. It was pleaded that the suit was barred by limitation and that the memorandum of agreement was vague and a tampered document. As such, the said defendant was not bound by the terms of the same. It was pleaded that the suit was barred by limitation and that the memorandum of agreement was vague and a tampered document. As such, the said defendant was not bound by the terms of the same. Regarding interest, it was pleaded that the interest claimed was a penal one which could not be claimed. It was also averred that the plaintiff-bank was estopped by its acts and conduct to file the present suit. 7. On merits, defendant No.2 submitted that defendant No.1 applied to the bank for a truck loan and it was incorrect to state that defendant No.2 joined the defendant No.1 in demanding the loan. In fact, defendant No.1 as also the plaintiff-bank had told the replying defendant that he was being asked to sign only a formal agreement and that the liability would be of deft. No.1 alone. Defendant No. 2 denied having any knowledge of defendant No.1 purchasing some truck from the money advanced by the plaintiff bank. It was pleaded that it was the duty of the plaintiff-bank to have seized the truck in question and after selling it, liquidate the loan amount but the plaintiff-bank having failed to do it, in collusion with defendant No.1 and has filed the present suit. It has been very specifically pleaded that defendant No.2 was not bound by acknowledgement or part payments made by defendant No.1, as those payments have been made behind the back of the replying defendant. The suit has been alleged to be not filed within the period of limitation. 8. Parties were put to trial on the following Issues : 1. Whether the plaintiff advanced loan to defendant No.1 against the execution of the memorandum of agreement, as alleged ? OPP 2. Whether the suit is barred by limitation ? OPD 2 3. Whether the liability of defendant No.2 stood discharged by novation of contract ? OPD 2 4. Whether memorandum of agreement is hit by the provisions of Indian Contract Act ? OPD 2 5. Whether signatures of defendant No.2 were obtained on blank printed forms without explaining their terms to him ? If so, to what effect ? OPD 2 6. Whether the plaintiff is estopped from filing the instant suit by its acts and conduct ? OPD 2 7. To what rate and amount of interest and from whom is the plaintiff-bank entitled to recover ? OPP 8. If so, to what effect ? OPD 2 6. Whether the plaintiff is estopped from filing the instant suit by its acts and conduct ? OPD 2 7. To what rate and amount of interest and from whom is the plaintiff-bank entitled to recover ? OPP 8. Whether the plaintiff is entitled to recover the suit amount or any other amount ? OPP 9. Relief. Issue No. 2 9. This is the most vital Issue, to be disposed of between the parties. It has been contended on behalf of the plaintiff-bank that, no doubt, the memorandum of agreement was executed by the defendants on 5th January, 1981 and the default in payment of loan was made by not paying the first instalment due but in view of the confirmation of the amount due and acknowledging the same through Ex. PW 2/C dated 22-10-1982 and Ex. PW 2/B dated 23-6-1984 the suit filed on 20th June, 1987 comes within the period of limitation. It is not so simple a matter, as has been submitted on behalf of the plaintiff. 10. On the other hand it has been contended on behalf of the contesting defendant that both these documents Ex. PW 2/B and Ex. PW 2/0 in case stood legally proved, the suit definitely comes within the prescribed period of limitation but in the present case as these documents have not been proved in accordance with law and they cannot, as such, be read in evidence in support of the claim of the plaintiff-bank and in that view of the matter if these documents are excluded from the evidence of the plaintiff, the suit does not come within the period of limitation. 11. In so far as the aforesaid proposition is concerned, which pertains to the legal proof of these documents, the learned Counsel for the parties have got no dispute and they have submitted that in case these documents can be read as legal evidence the suit from the date of acknowledgement, as such, would be within limitation Admittedly, both these documents Ex. PW 2/C and Ex. PW 2/B are private documents. Private documents are to be proved by primary evidence which means the documents itself produced for the inspection of the court and proved in accordance with law of evidence. PW 2/C and Ex. PW 2/B are private documents. Private documents are to be proved by primary evidence which means the documents itself produced for the inspection of the court and proved in accordance with law of evidence. These documents can be proved by the persons who scribed the same or who executed the same Under section 67 of the Indian Evidence Act if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. This provision clearly indicates that these two documents can be legally proved by the person who scribed the same and the person who signed these documents. Unless and until this provision of law is complied with in proving these private documents, they cannot be said to have been legally proved It is a separate matter if the execution and the contents of the documents are stated to have been admitted by the opposite party. In the present case the contesting defendant did not admit the execution of the document and denied the same by writing the word "denied" on both these documents. The plaintiff in order to prove these documents examined some oral evidence. PW 2 is Shri P.C. Mittal who was examined in this behalf by the plaintiff-bank. Regarding these documents this witness stated that the balance confirmation letters of 23rd June, 1984 and 23rd October, 1982 were executed by defendant No.1 He also added that the blank columns of balance confirmation letter had already been filled before they were signed by defendant No.1. He stated that the suit was not filed as on default defendant No.1 had been promising to repay the loan and, accordingly, executed the balance confirmation letters. The said balance confirmation letter are Ex. PW 2/B and Ex. PW 2/C, When cross-examined in this behalf the witness deposed that in case of balance confirmation letter Ex. PW 2/B the columns were filled by the then Manager Shri H.R. Mahajan. He further added that he did not know about the person who had filled in the blanks of Ex. PW 2/B and Ex. PW 2/C, When cross-examined in this behalf the witness deposed that in case of balance confirmation letter Ex. PW 2/B the columns were filled by the then Manager Shri H.R. Mahajan. He further added that he did not know about the person who had filled in the blanks of Ex. PW 2/C. He has been very specific in deposing that the blanks of both these documents were not filled in, in his presence and Shri H.R. Mahajan is presently posted in the Zonal Office of the plaintiff-bank at Shimla. Admittedly, this witness has not scribed these documents He nowhere stated that defendant No.1 signed these documents in his presence His statement that blank columns of balance confirmation letters, which had already been filled in before they were signed by defendant No.1, will not mean that defendant No.1 signed these documents in his presence. If it was so, he could have stated in that manner. It may be referred here that this very witness, while proving Ex, PW 2/A, the agreement, stated on oath that this document was duly signed by the defendants in token of its correctness in his presence. That means, the main agreement Ex PW 2/A, according to this witness, was signed in his presence but he has not stated so in so far as Ex. PW 2/B and Ex. PW 2/C are concerned. 12. Learned Counsel for the plaintiff has submitted that since both the documents have been exhibited, in accordance with law, without there being any objection raised in this behalf on behalf of the contesting defendant, in this view of the matter, both these documents stood legally proved and such an objection in regard to its legal proof cannot be raised at this stage. The legal proposition being raised has to be appreciated on the basis of the law laid down by various courts in this regard. 13. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865, it has been held that mere marking of a document as an exhibit does not dispense with its proof. In this case also the documents were private documents which had been exhibited when tendered in evidence. The apex Court made the following observations, in paragraph 15 : "The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. In this case also the documents were private documents which had been exhibited when tendered in evidence. The apex Court made the following observations, in paragraph 15 : "The plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents It is common place to say that the negative cannot be proved. The proof of the plaintiffs books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs books would not have supported the plaintiffs." 14. In P.C. Purushothama Reddiar v. S, Perumal, AIR 1972 SC 608, it has been held that it was not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. The earlier case, that is, Sait Tarajee Khimchand and others (supra) ATR 1971 SC 1865, has not been discussed or referred to in this ruling. In this case, that is, P.C. Purushothama Reddiar, AIR 1972 SC 608, the documents, which had been exhibited without any objection from the opposite party, were some police reports and those were assailed to be inadmissible in evidence as the Head-constable who covered those meetings and made those reports, having not been examined in the case. The apex Court observed that the rep orts in question were made by Government officials in the discharge of their official duties and those officials have been deputed by their superiors to cover the meetings in question. Obviously they were deputed in connection with the maintenance of law and order which was the special responsibility of the police and hence the question whether those reports were made in compliance with any particular provision of law was irrelevant as the first part of section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence and quite clearly the reports in question were made by public servants in discharge of their official duty. It was further held that the issue before the court was whether the respondent had arranged certain election meetings on certain dates and the police reports in question were extremely relevant to establish that fact. Hence those reports come within the ambit of the first part of section 35 of the Evidence Act. 15. Thus, on the basis of the aforesaid circumstances existing in that case, the apex Court came to the conclusion that those police reports which had been marked without any objection, now it was not open to the respondent to object to their admissibility. 16. The two cases of the apex Court, referred to above, clearly give guidelines in order to appreciate the proposition of law, being argued in this case. It only means that the documents, which have been exhibited, their nature, relevancy and other legal aspect have to be taken note of before the same are accepted as a legal evidence. 17. In Sir Mohammed Yusuf and another v. D and another, AIR 1968 Bom 112, it has been held that ‘the evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the court and an attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at naught the well recognized rule that hearsay evidence cannot be admitted. It was further held that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document, and the only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. 18. Thus, on the basis of the law of Evidence Act and the guidelines, which can be taken note of from the cases decided by the apex Court and referred to above, it can safely be said that merely exhibiting a document will not absolve the party, relying on the document, from proving its execution and the contents thereof in accordance with law especially when the document is a private document, the scribe and the person who executed it, are the witnesses who alone could successfully and legally prove such a document. 19. 19. In the present case the evidence has been referred to above, These two documents were neither scribed nor signed by PW 2, Shri P C. Mittal. These were also not scribed or signed by the defendant in his presence. The person who scribed one of the documents has been stated by the witness to be Shri H.R. Mahajan who was presently posted at the Zonal office of the plaintiff-bank at Shimla who was not examined by the plaintiff for the reasons best known to the plaintiff-bank This PW 2 stated that Ex. PW 2/B was filled by Shri H.R. Mahajan Regarding Ex. PW 2/C the witness stated that he did not know about the person who had filled in the same. These documents, needless to say, are the documents which the defendant was alleged to have executed in favour of the plaintiff-bank and are in possession of the plaintiff-bank but sorry to note that the plaintiff-bank miserably failed to prove these documents in accordance with law. Without there being any legal proof of these documents, they cannot be referred and taken advantage of by the plaintiff-bank, in any manner. 20. As referred to earlier, if these documents are removed from the legal evidence examined by the plaintiff, admittedly, as per learned Counsel for the parties, there does not remain any legal evidence on record to bring the suit of the plaintiff within limitation especially when these two balance confirmation letters dated 22-10-1982 and 23-6-1984 were made the basis of the suit and on the basis whereof the suit was alleged to be within the period of limitation. 21. The original agreement Ex. PW 2/A was executed in January 1981. The defendants agreed to pay back the amount through this agreement by monthly instalments of Rs. 4,500 each and the first instalment was due on or before 5th February, 1981. As per Ex. PW 1/A, the statement of accounts, the first instalment was paid by the defendants on 6th May, 1981. That means that there was a default in making payment of the very first instalment. Ex. PW 2/C was the first acknowledgement, alleged to have been executed by defendant No.1 on 22-10-1982 and in case this document was proved, the period of limitation, as per law, could ba extended till October 1985. The second acknowledgement, alleged to have been executed by defendant No.1, was Ex. Ex. PW 2/C was the first acknowledgement, alleged to have been executed by defendant No.1 on 22-10-1982 and in case this document was proved, the period of limitation, as per law, could ba extended till October 1985. The second acknowledgement, alleged to have been executed by defendant No.1, was Ex. PW 2/C dated 23-6-1984 which, if legally proved, could have extended the period of limitation upto 23-6-1987. The suit was filed on 20-6-1987. As both these documents nave not been legally proved, accordingly, they have to be ignored and in the absence of those documents the suit filed on 20th June, 1987, is clearly barred by limitation. This issue is accordingly disposed of in favour of the defendants. Issue No. 1 22. On account of Ex. PW 2/A dated 5th January, 1981, which document stood proved on the basis of the statement made by PW 2, and there being no rebuttal to the same, the scope of this issue stood legally established and it is accordingly disposed of in favour of the plaintiff. Issue No. 3 23. This Issue for want of evidence is decided against the defendant. Issue Nos. 4 and 5 24. Issue No. 4 has not been pressed while Issue No. 5, for want of evidence, is decided against the defendant. Issue No. 6 25. This Issue is also decided against the defendant for want of evidence. Issue No. 7 26. The terms referred in Ex. PW 2/A will govern the rate of interest and this Issue stands accordingly disposed of. Issue No. 8 27. In view of the findings on Issue No.2 the plaintiff is not entitled to recover the suit amount. Issue No.9 28. In view of the findings on Issues, as aforesaid, the present suit is dismissed, being barred by period of limitation. Parties are left to bear their own costs. Suit dismissed.