JUDGMENT : 1. The appellant in this second appeal questions the judgment and decree passed by learned Subordinate Judge, Balangir (as then) in T.S. No. 5 of 1983 confirmed by learned Addl. District Judge, Balangir in the first appeal under section 96 of the Code of Civil Procedure which stood numbered as Title Appeal No. 71/57 of 1991-92. The appellant is the unsuccessful plaintiff as also the appellant in the first appeal. The suit has been filed by the appellant-Bank as the plaintiff for recovery of a sum of Rs. 85,435.32 by selling of the land described in the schedule of the plaint as mortgaged before it by the respondent-defendant, the guarantor for the cash credit facility granted in favour of Madhusudan Pansari, running the business in the name and style of M/s. Sarita Clothes Store. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff-Bank’s case is that cash credit facility has been granted to the extent and limit of Rs. 50,000/- to one Madhusudan Pansari with minimum interest of 16.5% per annum for the purpose of cloth business run in the name and style of M/s. Sarita Clothes Store. Said Madhusudan Pansari is thus said to be the debtor. This defendant for the purpose of said cash credit facility is said to have stood as guarantor. It is stated that the defendant had mortgaged the property described in the schedule of the plaint as collateral security for smooth recovery of the outstanding dues on account of said cash credit facility to Madhu Sudan, in case of default in due payment by the debtor which in the case has been done. It is further stated that the mortgage was an equitable one by deposit of the title deeds by the defendant with the plaintiff. The stocks of the cloth store also stood hypothecated. The allegation is also levelled that in violation of agreement of hypothecation, cash credit facility holder namely Madhu Sudan sold away the entire stock hypothecated without the knowledge of the plaintiff. Madhu Sudan died on 7.6.82 and the business came to total close. 4. The stocks of the cloth store also stood hypothecated. The allegation is also levelled that in violation of agreement of hypothecation, cash credit facility holder namely Madhu Sudan sold away the entire stock hypothecated without the knowledge of the plaintiff. Madhu Sudan died on 7.6.82 and the business came to total close. 4. The defendant in the written statement denied the grant of any cash credit facility by the plaintiff-Bank in favour of Madhusudan Pansari and that the same to have been so availed of by said Madhusudan. It is stated that the defendant had never made a request for the purpose. The execution of pro-note and agreement of hypothecation by Madhusudan in favour of the bank have also been denied. It is next stated in the alternative that even if there remains any promissory note, the same is invalid in the eye of law. It is stated that the defendant has never executed any such deed of guarantee in favour of the plaintiff-Bank and had simply lent his signatures on some blank forms when no such cash credit facility had been availed of by Madhusudan. Thus it is said that the question of defendant standing as guarantor does not arise. The deed of guarantee if at all is there is therefore said to be of no legal effect and consequence. The allegation against the credit facility holder, Madhusudan Pansari is also defended by this defendant stating that said Madhusudan had never sold the stocks of the cloth store and those were actually destroyed when the shop room got gutted with fire on 28.9.90 which was to the knowledge of the plaintiff-Bank. It is however again stated that the stocks of that cloth store have been insured by the plaintiff-Bank and they have received the compensation for destruction of the stocks. This defendant is the elder brother of Madhusudan Pansari and claims to have received no such assets of Madhusudan after his death in presence of his other successors. 5. The trial court on the above rival pleadings has framed in total 12 issues. The crucial finding has been rendered on issue no.4 which has ultimately led to the dismissal of the suit. Finding stands that the plaintiff-Bank has failed to prove that Madhusudan had been advanced with any such sum by the plaintiff-Bank having availed the cash credit facility. The trial court on the above rival pleadings has framed in total 12 issues. The crucial finding has been rendered on issue no.4 which has ultimately led to the dismissal of the suit. Finding stands that the plaintiff-Bank has failed to prove that Madhusudan had been advanced with any such sum by the plaintiff-Bank having availed the cash credit facility. It has also been the finding that there is no proof of any guarantee being given by the present defendant undertaking any such liability as a guarantor to the said financial transaction between the plaintiff-Bank and Madhusudan for its payment in case of default. It has further been held that the materials are not available to conclude that the defendant was the heir of Madhusudan and has thus succeeded to his property. The plaintiff is found to have not even proved the promissory note and any such agreement with Madhusudan for the said advancement of money in the form of cash credit facility. It is stated that the only document as proved by the plaintiff-Bank being the certified copy of a partial statement of account, the same is wholly insufficient to prove the cash credit transaction between the plaintiff-Bank and Madhusudan; so also the position of defendant as the guarantor to the said financial transaction by tendering his property described in schedule of the plaint in equitable mortgage by depositing the title deeds has also been held in the negative as not established through acceptable evidence. 6. The present second appeal has been admitted by order dated 9.2.2000, formulating the substantial questions of law which are the followings:- “(i) As to whether the statement of accounts which are exact extract of the Books of Accounts maintained in usual and ordinary course of business by the Bank should be construed to be prima facie correct and are protected under the provisions of Bankers Book of Evidence Act (Act XVIII of 1891)? (ii) As to whether the learned court i.e., the Appellate court committed an error in not disposing of the petition for additional evidence first before hearing the appeal on merit?” 7. Learned counsel for the appellant submits that in the first appeal, this appellant had filed the petition under order 41 rule 27 of the Code and the lower appellate court without deciding the petition first has gone to decide the same while disposing the appeal by finally rejecting it. Learned counsel for the appellant submits that in the first appeal, this appellant had filed the petition under order 41 rule 27 of the Code and the lower appellate court without deciding the petition first has gone to decide the same while disposing the appeal by finally rejecting it. If the document which is said to be letter of guarantee would have been accepted as additional evidence, the finding of the trial court on that score against the plaintiff-Bank ought to have been held to be unsustainable. It is stated that the first appellate court ought to have allowed the same since its non-proof was on account of inadvertent mistake and therefore the said document had not been proved during trial and marked as an Exhibit. He further submits that even if it is said to have been rightly taken up for being decided after hearing of the appeal and at the time of its disposal, the first appellate court ought to have remanded the suit to the trial court for its disposal afresh by affording the opportunity to the plaintiff-Bank in proving the said document. He also next contends that based on the statement of account which has the due certification as required under the Banker’s Book of Evidence Act by the competent officer as per law, the court’s below ought to have found themselves in no difficulty in fastening the liability upon the defendant who is the guarantor having stood as the surety for payment of overdue amount to the Bank under that cash credit facility as had been availed of by Madhusudan. 8. Learned counsel for the respondent on the contrary submits that when the suit has been filed after the death of the so called debtor in seeking the decree against the defendant on the foundation that he is the guarantor of the cash credit facility to Madhusudan for running his cloth store and business, non-production and non-proving of letter of guarantee all through the trial under no circumstance can be termed as inadvertent omission. According to him, it has to be held that during trial, said document was not in existence and that has been somehow managed to be so created for the purpose at a later stage after disposal of the suit for which that had not been proved. According to him, it has to be held that during trial, said document was not in existence and that has been somehow managed to be so created for the purpose at a later stage after disposal of the suit for which that had not been proved. He also submits that several opportunities have been given to the plaintiff-Bank in that regard and they have intentionally avoided in placing and proving any such letter of guarantee. It is again stated that said letter of guarantee even if would have been accepted as additional evidence could not have been so taken to fasten the liability upon the defendant as guarantor since the very factum of advancement of money under the cash credit facility by the plaintiff-Bank in favour of Madhususan Pansari has not been proved. 9. In addressing the above rival submission at the cost of re-peatation for better appreciation, it may be stated that the so called cash credit facility holder, Madhusudan being dead, his liability towards the so called cash credit facility as is said to have been availed by him from the plaintiff-Bank is now sought to be fastened upon the defendant assigning him in the position as that of a guarantor. Undeniably, the plaintiff-Bank neither proved any loan document i.e. promissory note, nor any such agreement for said cash credit facility said to have been availed of by Madhusudan from the plaintiff-Bank nor the agreement of the hypothecation being executed by Madhusudan Pansari. The document which the bank has proved is the statement of account certified under Banker’s Book of Evidence Act. Thus the factum that Madhusudan had availed of any such cash credit facility from the plaintiff-Bank has not been established. So when the plaintiff-Bank has not proved the factum of lending of money by way of cash credit facility to said Madhusudan, there arises no question of any person coming to be saddled with the liability on that score merely basing upon the statement of the account that too on being said as a guarantor. There being no relationship of creditor and debtor between the plaintiff-Bank and Madhusudan, the creation of relationship putting a person in the position of a guarantor/surety does not arise. There being no relationship of creditor and debtor between the plaintiff-Bank and Madhusudan, the creation of relationship putting a person in the position of a guarantor/surety does not arise. This assignment of position of a guarantor to the defendant is based upon the relationship between the person who has taken the cash credit facility standing as the debtor which stands as the basic precondition so as to be satisfied. Then only the question of the defendant standing as guarantor as the surety in securing the payment of dues of the plaintiff-Bank remaining unpaid by Madhusudan for its recovery on account of default of Madhusudan would arise. The law is quite well settled that mere statement of account is not sufficient to charge the person of the liability unless of course with the relationship first, the liability if on that score is accepted by giving a nod to the correctness of the entry of account. This is not the case here. In every such monetary transaction, the relationship between the parties must be established first with the availment of the facility and thereafter the accounts relating to the said transaction as between the parties as maintained in due course of business when is proved would go to determine the rights and liability of the parties to the transaction. The statement of the account has been filed with the plaint. The correctness of the same has been challenged with the denial of relationship between the plaintiff-bank and Madhusudan and thereafter the position of this defendant as assigned by the Bank as a guarantor. When it is stated in the plaint that Madhusudan has executed a promissory note, no such pro note has been proved in the case. P.W.1 on behalf of the Bank has merely gone to depose that the bank record reveals about the advance of cash credit facility to the extent of Rs. 50,000/- to Madhusudan on 21.3.1971 according to his request. Evidence of P.W.1 being read with the relevant pleading in the plaint, it is seen that the agreement of hypothecation also is said to have been executed in the year 1976 whereas facility is said to have been so advanced on 21.3.78 which is one year and four months after the execution of the so called agreement of hypothecation. Evidence of P.W.1 being read with the relevant pleading in the plaint, it is seen that the agreement of hypothecation also is said to have been executed in the year 1976 whereas facility is said to have been so advanced on 21.3.78 which is one year and four months after the execution of the so called agreement of hypothecation. Those documents are not going to establish the advancement of the cash credit facility to Madhusudan and about such other documents, it has neither been spoken by P.W.1 nor those have even been produced and proved in accordance with law. Said documents have not seen the light of the day. The statement of account filed by the bank containing the certificate as required under section 3 of the Banker’s Book of Evidence Act undoubtedly raises a presumption with regard to correctness of the statement of account until so rebutted by the adversary. But the same itself is not taken as the document from which the court can got to hold that the plaintiff-Bank’s case as regards the advancement of cash credit facility to Madhusudan and the factum as stated that the defendant stood as guarantor/surety for the same by tendering the title deeds with the plaintiff-Bank in creating with equitable mortgage for the purpose of repayment of loan in case of default by mortgaged has been so established. Mere entry in the books of account even though maintained therein the Bank in course of official transaction and by those in due discharge of official duty cannot be taken as enough and sufficient or the basis so as to fasten the liability upon the (so called debtor) or a person sought to be proceeded with in connection with said transactions and dues recoverable by the creditor being arraigned as a guarantor as to have been given his property as equitable mortgage through deposit of title deeds for recovery of said outstanding dues due to default by the so called debtor and in the absence of proof of any documents laying the foundations in creating the relationship between parties. 10. For the aforesaid discussion and reasons, the above substantial questions of law do not receive their answer in favour of the case of the plaintiff-Bank for successful culmination of this second appeal in upsetting the concurrent findings. 10. For the aforesaid discussion and reasons, the above substantial questions of law do not receive their answer in favour of the case of the plaintiff-Bank for successful culmination of this second appeal in upsetting the concurrent findings. In the above premises, the judgments and decrees passed by the courts below in finally dismissing the suit filed by the plaintiff-Bank do get herewith the seal of approval. 11. Resultantly, the appeal fails. There shall however be no order as to cost.