JUDGMENT AND ORDER : Heard Mr. A.C. Sarma, the learned Senior Counsel assisted by Mr. B. Haldar and Mr. G. Bhardwaj, the learned Counsels appearing for the appellants in both the appeals, Mr. B.D. Das, the learned Senior Counsel assisted by Mr. D. Thaosen and Mr. D. Saikia, the learned Counsels appearing for the respondent No.1 in both the appeals. 2. These two regular first appeals are directed against the judgment and decree dated 19.09.2009, passed by the learned Civil Judge No.3, Kamrup, Guwahati, in Money Suit No. 300 of 2005, by which the suit filed by the respondent No.1 herein for recovery of a sum of Rs.1,77,00,000/-(Rupees One Crore Seventy seven lakh only) was decreed. 3. Against the said decree, while RFA No. 30/2010 has been filed by the by defendants No. 1, 2, 5 and 6, the defendants No.3 and 4 has filed RFA No.32/2010. Hence, for the sake of convenience, the parties are referred herein as their status of parties in the suit. 4. The case in brief is that AIDC Ltd. had sanctioned a loan to the defendant No.1 Company. Defendant No.2, 5 and 6 are the Directors of the Defendant No.1 Company. Defendant No.3 is the wife of a deceased Promoter-Director of the Defendant No.1 Company. The Defendant No.4 is the son in law of the deceased Promoter-Director of the Defendant No.1 Company. The defendant No.1 Company resolved to borrow a sum of Rs.73.30 Lakh only from the plaintiff under IDBI refinance Scheme. The said loan along with equity participation of Rs.5.50 Lakh was sanctioned and disbursed to the defendant No.1. A loan agreement dated 10.08.1992 was executed by the defendant No.1 and the plaintiff. Alleging non-repayment of loan and interest, the plaintiff had instituted a suit for recovery of money as indicated above. 5. The defendants took a defence that they were assured of financing the installation of 36 looms with accessories for manufacturing cloth. However, no money was given to the defendant No.1, and instead money was paid directly to the suppliers. However, the defendant No.1 only received 12 looms with accessories, which were installed, next 12 looms were sent without accessories, which could not be installed and the remaining 12 looms were never supplied or installed as no money was disbursed to the supplier. No steps were taken for supply of raw materials. However, the defendant No.1 only received 12 looms with accessories, which were installed, next 12 looms were sent without accessories, which could not be installed and the remaining 12 looms were never supplied or installed as no money was disbursed to the supplier. No steps were taken for supply of raw materials. At such a juncture, the loans were recalled and the factory was taken over. A part of the assets which were taken over was sold and, as such, the defendants prayed for dismissal of the suit. 6. The trial court framed as many as 9 issues, as follows:-1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable in law and facts? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for non-joinder of necessary party? 5. Whether the suit is bad for waiver, estoppels and acquisance? 6. Whether the defendant had taken loan from the plaintiff? 7. Whether there was equity participation in the defendant company by the plaintiff to the extent of Rs.5.50 lakhs? 8. Whether the defendant company failed to pay Rs.1,77,00,000/-to the plaintiff? 9. Whether the plaintiff is entitled to decree as prayed for? 7. The plaintiff examined one witness and the defendants examined 3 witnesses. The issues No.1 and 2 were decided in favour of the plaintiff by holding that there was cause of action for the suit and that the suit was not maintainable. In respect of issue No.3, the learned trial court after discussing some of the materials on record held that the suit was not barred by limitation. In respect of issue No.4, it was held that the suit was not bad for non-joinder of the State of Assam and IDBI. In respect of issue No.5, it was held there was no evidence to hold that the suit was bad for waiver, estoppel and acquiescence. In respect of issue No.6, it was held that it was an admitted position that the defendants had taken a loan of a sum of Rs.73.30 Lakh under IDBI Re-finance Scheme at the terms and conditions set forth in the agreement dated 10.08.1992. 8. In respect of issue No.6, it was held that it was an admitted position that the defendants had taken a loan of a sum of Rs.73.30 Lakh under IDBI Re-finance Scheme at the terms and conditions set forth in the agreement dated 10.08.1992. 8. In respect of issue No.7 and 8, the learned trial court has discussed the power of the plaintiff corporation to take over asset under Section 29 of the State Financial Corporation Act, 1951 and its right to sell and recover the loan and advance and it was held that the PW-1 had proved all the document regarding the acceptance of the term loan by the plaintiff from the plaintiff corporation and the said issues were decided in favour of the plaintiff. Hence, in view of the decision in issue No.7 and 8, in respect of issue No.9, it was held that the plaintiff corporation was entitled to get the decree as prayed for. The suit was thus, decreed for Rs.1,77,00,000/-together with interest @ 6% per annum from the date of institution till realization. 9. The learned Senior Counsel for the appellant has extensively submitted on the point that the defendants No.3 and 4 were unconnected with the loan or execution of the loan documents. He has relied on the order dated 04.01.2008, by which the learned trial court had held that the legal heirs/representatives of Late Dona Ram Das was not necessary parties in the suit as the said Late Dona Ram Das did not avail any loan himself. Hence, it is submitted that the issue No.4 was wrongly decided by the learned trial court. It is also submitted that the reason decision on issue No.4 was “… the plaintiff had taken over the possession of the industrial unit of the defendants, so the plaintiff is deemed to be the owner of the industry for the purpose of the suit …”. In view of the said finding, it is submitted that the decision on the said issue of non-joinder of necessary parties was also wrong. 10. Heavy reliance is placed on the cross examination of PW-1, who had categorically admitted that name of Defendant No.3 had not been incorporated in the Loan Agreement dated 10.08.1992 (Ext.3). 11. In view of the said finding, it is submitted that the decision on the said issue of non-joinder of necessary parties was also wrong. 10. Heavy reliance is placed on the cross examination of PW-1, who had categorically admitted that name of Defendant No.3 had not been incorporated in the Loan Agreement dated 10.08.1992 (Ext.3). 11. It is submitted that the statement of accounts from 24.12.1992 to 20.04.2002 (Ext.13) was only a photocopy and therefore, a photocopy cannot be admitted in evidence and, as such, the accounts having not been proved, no decree could have been passed in favour of the plaintiff. Moreover, it is submitted that the entire statement of accounts were neither produced nor proved. It is submitted that in the summary of account the head of account were (i) Term Loan, (ii) Interest, (iii) Penal interest, (iv) Additional Interest. 12. It was also submitted that as per the plaint, the prayer was for realization of a sum of Rs.1,77,00,000/-, but the statement made in the evidence-on-affidavit, the alleged outstanding dues were mentioned as Rs.1,78,34,714.36/- (Rs. One Crore seventy eight lakhs thirty four thousand seven hundred and fourteen and thirty six paise only). 13. The learned counsel for the appellant has submitted that this appellate court cannot take cognizance of any information provided in form of an affidavit as it is not in accordance with the procedure prescribed by the Civil Procedure Code (CPC for short). The respondent No.1 had filed an affidavit on 18.08.2017 to inform this court that by sale of some movable properties, the following money had been recovered by the plaintiff– (a) In January, 2003, by sale of TATA Mobile vehicle – Rs.81,555/- (b) In May, 2003 by sale of DG Set -Rs.1,45,000/- (c) In November, 2009 by sale of plant & machinery Rs.4,00,000/- (d) Total: Rs.6,26,555/- 14. It is further submitted that the TATA mobile vehicle and DG Set were sold prior to the institution of the suit. Therefore, as these sales were not shown in the statement of accounts (Ext.13), the said Ext.13 is wholly unreliable. 15. Per contra, the learned Senior Counsel appearing for the respondent No.1 Corporation (plaintiff) has argued in support of the impugned judgment and decree. Therefore, as these sales were not shown in the statement of accounts (Ext.13), the said Ext.13 is wholly unreliable. 15. Per contra, the learned Senior Counsel appearing for the respondent No.1 Corporation (plaintiff) has argued in support of the impugned judgment and decree. It is submitted that no objection was registered at the time when the documentary evidence in the case was introduced by the plaintiff and, as such, the decree passed against the defendants/appellants is not required to be interfered with, because the defendants are rank defaulters in paying back the principal and interest and other charges accrued thereon. It is submitted that there was no denial by the defendants that the defendant No.1 had taken the loan from the plaintiff and, as such, the defendants are all liable to suffer the decree. 16. It is submitted by the learned counsel for the respondent No.1 that the defendant No.3 was one of the heirs of Dona Ram Das, who while alive was one of the Promoter and Founder Director of the Defendant No.1 Company and, as such, she had succeeded to the estate left behind by Late Dona Ram Das and, as such, the defendant No.3 was a necessary and proper party in the suit. However, on a pointed question by the Court, the learned Senior Counsel for the respondent No.1 could not show any document by virtue of which the Defendant No.3, who is the son-in-law of Late Dona Ram Das had either succeeded to the estate of Late Dona Ram Das or stood as a guarantor to the loan granted to and availed by the defendant No.1. The learned Senior Counsel for the respondent No.1 had extensively referred to the evidence of the witnesses as well as to the exhibited documents. 17. On the basis of the submissions made by the learned counsel for the contesting parties, the following points of determination arise for the decision of this Court – a. Whether the statement of accounts (Ext.13) is admissible in evidence and whether the entries therein can be the basis of passing a money decree in the suit? (b) Whether the issue No.4 was correctly decided by holding that the plaintiff is deemed to be the owner of the industrial unit of the defendants? (b) Whether the issue No.4 was correctly decided by holding that the plaintiff is deemed to be the owner of the industrial unit of the defendants? And whether the State of Assam, IDBI (as it was then) and the defendants No.3 and 4 (appellants in RFA 32/2010) were proper or necessary parties in the suit? (c) Whether the impugned judgment and decree warrants interference in this appeal? 18. On point of determination No.1: (a) Ext.13 is the Statement of Accounts. It is neither the original ledger nor it is a copy of the ledger. The statement is an extract of balances as on various dates. (b) It is seen that the statement of accounts (Ext.13) shows an outstanding balance of Rs.1,78,34,714.36/- as on 20.04.2002. The said statement contains entries for a period from 15.05.1993 to 20.04.2002, but at the heading, it is mentioned that it was a statement from 24.12.1992 to 20.04.2002. It also contains a foot-note in respect of equity participation of Rs.5,50,000/-, without mentioning about the date of such entry. (c) In the said statement (Ext.13), Principal amount of Rs.4,30,000/-is shown to be due on 07.12.1994, 05.06.1995, 07.12.1995, 05.06.1996, 07.12.1996, 05.06.1997, 07.12.1997, 05.06.1998, 07.12.1998, 05.06.1999, 07.12.1999, 05.06.2000, 07.12.2000, 05.06.2001, and Rs.3,81,546.36 as on 07.12.2001. Interest is shown to be due on 15.05.1993, 15.11.1993, 15.05.1994, 15.11.1994, 15.05.1995, 15.11.1995, 15.05.1996, 15.11.1996, 15.05.1997, 15.11.1997, 15.05.1998, 15.11.1998, 15.05.1999, 15.11.1999, 15.05.2000, 15.11.2000, 15.05.2001, 15.11.2001, 20.04.2002. Thus, the interest has not been principalized. (d) In the evidence-on-Affidavit filed by the PW-1, there is no statement to the effect that the said statement is one of the books of accounts of the plaintiff and that it is maintained in regular course of ordinary business and, as such, in the opinion of this Court, in the absence of any oral or documentary evidence by the plaintiff’s witness, the said statement (Ext.13) is not one of the regular books of accounts kept in usual course of ordinary business. It is also not a ledger statement as maintained by banks and financial institutions. (e) The plaintiff is not a banking Company within the meaning of Banking Regulation Act, 1949. It is also not a ledger statement as maintained by banks and financial institutions. (e) The plaintiff is not a banking Company within the meaning of Banking Regulation Act, 1949. Nothing has been produced to show that the plaintiff is covered by the provisions of Bankers Books Evidence Act, 1891 or that the State Government has extended the provisions of the said Act in respect of the plaintiff by way of a notification under Section 3 of the said 1891 Act. Therefore, its books of accounts cannot be certified under the provisions of Section 2(8) or any other provisions of the said Bankers Books Evidence Act, 1891. (f) In the opinion of this court, in a standard accounting practice which is followed in a commercial bank, the outstanding sum is indicated and then there are entry of interest is debited in the account and/or credit, as the case may be. (g) Thus, viewed from all these angles, the statement of accounts (Ext.13) cannot be accepted as the primary proof of balance showing in the books of accounts of the plaintiff. (h) Without proving the document i.e. books of accounts and/or entries made therein, the statement, which is merely a secondary evidence cannot be admissible in evidence. (i) Omission on part of the defendants and their counsel to raise objection in respect of Ext.13 does not make the document admissible in evidence, not being a primary evidence. (j) The entry in Ext.13 is in respect of a sum of Rs.1,78,34,714.36/- as on 20.04.2002. However, the suit filed by the plaintiff/respondent No.1 herein for recovery of a sum of Rs.1,77,00,000/- (Rupees One Crore Seventy seven lakh only), which was decreed. Therefore, without pleading about the outstanding balance in Ext.13 is in respect of a sum of Rs.1,78,34,714.36/- as on 20.04.2002, the suit cannot be decreed for a sum of Rs.1,77,00,000/- (Rupees One Crore Seventy seven lakh only). Mere marking the statement of accounts as an exhibit does not prove the contents of a document. If one needs an authority on the same, the case of Nandkishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd., (2015) 9 SCC 755 : (2015) 0 Supreme (SC) 688 can be referred to. Mere marking the statement of accounts as an exhibit does not prove the contents of a document. If one needs an authority on the same, the case of Nandkishore Lalbhai Mehta Vs. New Era Fabrics Pvt. Ltd., (2015) 9 SCC 755 : (2015) 0 Supreme (SC) 688 can be referred to. (k) Hence, in view of the discussions above, the point of determination No.1 is decided in the negative and in favour of the appellants by holding that the statement of accounts (Ext.13) is admissible in evidence and the entries therein cannot be the basis of passing a money decree in the suit. 19. On point of determination No.2: (a) The learned trial court had held in respect of issue No.4 that plaintiff is deemed to be the owner of the industrial unit of the defendants. This finding is required to be tested in light of the provisions of Section 29 of the State Financial Corporations Act, 1951 which provides for the right of the Financial Corporation in case of default. A perusal of the said provision would be sufficient to show that, amongst others, the State Financial Corporation has the power to take over the industrial unit without or without management and the said provisions also give other powers to the State Financial Corporation to recover its debts, cost, charges, etc. Under Sub-Section (5) of Section 29 of the State Financial Corporations Act, 1951, in case the State Financial Corporation takes over the management of the industrial unit, it is deemed to become its owner for the purpose of suits by or against such concern and shall sue and be sued in the name of the said concern. The said power merely creates a legal fiction to put the State Financial Corporation into the shoes of the owner because the company cannot work without management after the management is taken over by the State Financial Corporation, but under no stretch of imagination, does anything contained in State Financial Corporations Act, 1951 makes the plaintiff the owner of the industrial unit when it comes to filing of suit for the purpose of recovering its own dues. There is another way of looking at this issue, which is answered by posing a question as to whether anyone can sue itself. The answer has to be in the emphatic negative. There is another way of looking at this issue, which is answered by posing a question as to whether anyone can sue itself. The answer has to be in the emphatic negative. Therefore, it is one thing to represent the Company in suits and proceedings for the purpose of suing or be sued, but it is totally a different thing for the owner to sue itself for recovery of debts on the principle that one cannot be in debt of his own. Debt necessarily has to be due from another party. Thus, this court is of the view that the issue No.4 was incorrectly decided by holding that the plaintiff is deemed to be the owner of the industrial unit of the defendants. However, as the plaintiff had given the loan under an agreement, neither the State of Assam nor the IDBI (as it was then) are either proper or necessary party in the suit. (b) Late Dona Ram Das, the father of the defendant No.3 and the father-in-law of the defendant No.4 (i.e. appellants in RFA 32/2010) did not sign the demand promissory note (Ext.4). However, Late Dona Ram Das did sign a Deed of Guarantee (Ext.6) and, as such, it prima facie appears that while the defendant No.3 may be one of the legal heirs of her deceased father, but nothing has been proved in the suit to show that the defendant No.4 also inherited the estate of Late Dona Ram Das by application of any law in force. Thus, as per the evidence tendered by the PW-1, this Court is of the opinion that the plaintiff has not been able to prove that the defendant No.4 was either a proper or necessary party in the suit. (c) Thus, the second point of determination is answered by holding that the learned trial court had erred on facts and in law in holding that the plaintiff is deemed to be the owner of the industrial unit of the defendants. However, it has been correctly decided by the learned trial court that the State of Assam and the IDBI (as it was then) were not proper or necessary party in the suit. However, in respect of the defendant No.3 (appellant No.1 in RFA 32/2010), this Court finds that she was rightly arrayed as one of the defendants in the suit. However, it has been correctly decided by the learned trial court that the State of Assam and the IDBI (as it was then) were not proper or necessary party in the suit. However, in respect of the defendant No.3 (appellant No.1 in RFA 32/2010), this Court finds that she was rightly arrayed as one of the defendants in the suit. However, in view of the discussions above, this Court is of the unhesitant view that the Defendant No.4 (appellant No.2 in RFA 32/2010) was neither a proper nor a necessary party in the suit. 20. On point of determination No.3: Coming to the third point of determination, notwithstanding the findings recorded in respect of points of determination No.1 and 2, in the present case in hand, the parties have contested the suit fully knowing the case of each other. Moreover, the plaintiff (Respondent No.1) Corporation is a public sector enterprise and the money amounting to Rs.1,77,00,000/- sought to be recovered from the defendants is public money. It is also a matter of record that no objection was raised when the Statement of Accounts (Ext.13) was tendered in evidence. Therefore, in the opinion of this court, none of the parties would suffer any serious prejudice, loss or injury, if the matter is remanded back for fresh trial by directing the learned trial court to allow the parties to adduce fresh evidence on the issues framed for trial. Hence, in view of the discussions on the three points of determination formulated herein above, this Court is of the considered opinion that the impugned judgment and decree does warrant interference in this appeal. The same is set aside. 21. The impugned judgment and decree dated 19.09.2009, passed by the learned Civil Judge No.3, Kamrup, Guwahati, in Money Suit No. 300 of 2005 is set aside and the matter is remanded back for fresh trial by directing the said learned Court to allow the parties to adduce fresh evidence on the issues framed for trial. It is further held that the Defendant No.4 (appellant No.2 in RFA 32/2010) is neither a proper nor a necessary party in the suit. Hence, the name of the Defendant No.4 (appellant No.2 in RFA 32/2010) is struck off. 22. The parties are left to bear their own cost. 23. It is further held that the Defendant No.4 (appellant No.2 in RFA 32/2010) is neither a proper nor a necessary party in the suit. Hence, the name of the Defendant No.4 (appellant No.2 in RFA 32/2010) is struck off. 22. The parties are left to bear their own cost. 23. The parties, who are duly represented by their respective learned Counsels, shall appear before the Court of the learned Judge No.3, Kamrup (Metropolitan), Guwahati on 27.11.2017 without any notice for appearance, and by producing a certified copy of this order, shall seek further instructions from the said learned Court. 24. Prepare the decree accordingly. 25. Let the LCR be returned forthwith.