Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 952 (GAU)

Achyut Barthakur v. State Bank of India

2014-10-30

N.CHAUDHURY

body2014
ORDER 1. This first appeal is directed against Judgment and Decree dated 11.10.2002 passed by the learned Civil Judge (Senior Division) at Jorhat in Money Suit No. 92 of 1992 decreeing the suit for Rs. 6,67,530/- against the defendants with cost and interest at the rate of 12% per annum till the date of decree and 6% per annum on decreetal amount till realisation. 2. The defendant No. 2 of the Money Suit No. 92 of 1992 was the owner of defendant No. 1, a business concern known as Vaskar Oil and Flour Mills. Defendant No. 2 prayed for loan from the plaintiff/bank and the bank sanctioned a loan of Rs. 3,80,000/- on 05.11.1984 laying down stipulated terms and conditions in the sanction letter itself. The loan was sanctioned in three different categories, namely, Rs. 1,41,000/- by way of Medium Term loan, Rs. 2,00,000/- towards Cash Credit loan and a sum of Rs. 39,000/- towards Equity Fund Assistance. It was the case of the plaintiff that defendant was irregular in making repayment since beginning and so interest at compound rate continued accruing to the amount as per the term of sanction. As on 07.12.1992, the amount became as high as Rs. 7,13,916/- but the defendant No. 2 or his guarantors who are defendant Nos. 3 and 4 did not make any payment. Situated thus, bank was compelled to institute a suit for realisation of Rs. 7,13,916/- along with interest thereon, both pendente lite and future. 3. On being summoned, defendant appeared and submitted written statement. The defendant did not deny receipt of Rs. 3,80,000/- from the bank but alleged that bank committed breach of the terms and conditions of the loan and in the result, defendant No. 2 was put to huge loss. To tide over the crisis, he prayed for enhancement of Cash Credit loan which was also not considered by the bank and in the result the business of the defendants No. 1 and 2 was ruined. Since the bank contributed to the loss of the defendants No. 1 and 2, they prayed that the suit be dismissed. 4. On the basis of the rival contentions of the parties, the learned Court framed as many as 6 (six) issues as follows:- 1. Whether the suit is barred? 2. Whether the plaintiff fulfilled the terms and conditions of the loan? 3. 4. On the basis of the rival contentions of the parties, the learned Court framed as many as 6 (six) issues as follows:- 1. Whether the suit is barred? 2. Whether the plaintiff fulfilled the terms and conditions of the loan? 3. Whether valid documents have been executed by the defendants? 4. Whether the defendants executed any balance confirmation? 5. Whether the plaintiffs are entitled to adjust any money of the defendants without prior consent of the defendants? 6. To what relief, parties are entitled? 5. Plaintiff examined one witness and proved a number of documents. Defendant also examined one witness but did not adduce any document. The learned Court after hearing the parties and on consideration of the materials available on record passed the impugned judgment and decree holding that bank was not justified in making claim of Rs. 39,000/- which was given to the defendants No. 1 and 2 by way of Equity Fund Assistance but plaintiff bank was successful in proving its claim for sum of Rs. 6,67,530/- by adducing the statements of accounts which is admissible under Bankers’ Books Evidence Act. The suit was thus partly decreed by judgment and decree referred to above which has been put under challenge in the present first appeal. 6. I have heard Mr. PK Kalita, learned counsel for the appellants and Mr. L Talukdar, learned Standing Counsel, State Bank of India, for the sole respondent. 7. Mr. PK Kalita, learned counsel for the appellants would argue at the threshold that claim of the plaintiff/bank as against Cash Credit Account of Rs. 2,00,000/- is barred by limitation. To buttress his argument, the learned counsel called attention of the Court to Ext. 21 and argued that the deposit shown to have been made by the defendants No. 1 and 2 on 30.03.1991 by way of cash to the tune of Rs. 3,676.14 (Rupees three thousand six hundred seventy six and fourteen paise) was not in the knowledge of the defendant No. 2 and might have been deposited by bank official to save the case from limitation. 8. Per contra, Mr. Talukdar, learned counsel for the respondent/ bank would argue that bank is entitled under the provision of Bankers’ Book Evidence Act to produce certified copy of books of accounts to prove his claim. This has been done in the present case. Ext. 8. Per contra, Mr. Talukdar, learned counsel for the respondent/ bank would argue that bank is entitled under the provision of Bankers’ Book Evidence Act to produce certified copy of books of accounts to prove his claim. This has been done in the present case. Ext. 21 is the certified copy of the statement of account in regard to Cash Credit loan of Rs. 2,00,000/- granted to the defendants No. 1 and 2 and the entries mentioned therein only come to show that it was maintained in regular course of business. Whenever any deposit or withdrawal has been made in the account, the same has been projected in the account sheet and so it is admissible in evidence. 9. Defendant claimed in paragraph 16 of the written statement that the deposit shown to have been made on 30.3.1991 was not in his knowledge and that the same must have been made by the bank officials themselves to get over the bar of limitation, but having made such allegation the defendant No. 2 did not walk into the witness box to prove the same. It is established law that if a party does not step into the witness box to establish the pleadings made by him then presumption under Section 114 of the Evidence Act has to go against him. The defendant wanted the Court to believe that the deposit of Rs. 3,676.14/- was never made by him and so whole claim of the bank must fail for bar of limitation, but did not discharge his burden to establish his case. So he cannot be heard at this stage as to the genuineness or otherwise of the cash deposit made on that day. Such argument was raised before the learned Trial court and the learned Trial court considered the same in issue No. 5 vide paragraph 30 and 31 of the impugned judgment. The learned Trial court has specifically noted that burden of proof of such pleadings is upon the defendants but they failed to discharge such burden. Admittedly, defendants No. 1 and 2 did not lead any evidence in regard to deposit of money vide Ext. 16 or 17 which are the deposit slips establishing deposit of money on behalf of the defendants No. 1 and 2. Ext. 16 relates to deposit of Rs. Admittedly, defendants No. 1 and 2 did not lead any evidence in regard to deposit of money vide Ext. 16 or 17 which are the deposit slips establishing deposit of money on behalf of the defendants No. 1 and 2. Ext. 16 relates to deposit of Rs. 1397.64 (Rupees one thousand three hundred ninety seven and sixty four paise) and deposit slips contain signature of the defendant No. 2. There is no specific allegation anywhere that this deposit was not really made by the defendant Nos. 1 and 2 and/or their agents. Mr. PK Kalita, learned counsel for the appellants, submits that signature appearing on Ext. 17 does not belong to the defendant No. 2 and so there is no reason to hold that the deposit was made on behalf of the defendants No. 1 and 2. Deposit slip for making deposit in a bank account need not be filled in or signed by the account holder and it can be signed by anybody on behalf of the depositor. The deposit having been made in the account of the defendants No. 1 and 2 and the said defendants not having led any evidence to show that it was made by the bank officials to save the claim from limitation, it cannot be presumed that the deposit was not made on 31.10.1991 by or on behalf of the depositor but by someone else. If this contention of the learned counsel for the appellants is not accepted, the necessary corollary is that objection in regard to limitation also is bound to fail. The learned counsel for the appellants has argued only on the bar of limitation. The fact that defendants No. 1 and 2 availed financial assistance from the bank to the amount mentioned in the Books of Accounts and reflected in Ext. 21 or 20 has not been disputed or challenged in any way. Endeavour to avoid repayment of loan actually availed by taking recourse to objection on the point of limitation is actually a technical objection and the same is undoubtedly against equity. So unless party raising such objection duly pleads and proves the same, he cannot get a benefit by way of equitable relief. After all, objection against limitation is a one against equity. 10. So unless party raising such objection duly pleads and proves the same, he cannot get a benefit by way of equitable relief. After all, objection against limitation is a one against equity. 10. In the case in hand, appellants defendants not having led any evidence to establish that deposit was not made by or on behalf of them on 31.10.1991 in the concerned Cash Credit Account, it is not possible to hold that the claim of the plaintiff/bank in so far as it relates to Cash Credit Account is time barred. Consequently, there is no merit in the appeal. It is accordingly dismissed. 11. No order as to costs.