9911796707
TMI Blog1966 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... tgage deed was executed by the appellants in favour of the bank for ₹ 15,956/7/-, and some land, a house, a fixed deposit and three policies were given as security thereunder. The mortgage deed also provided that the bank would advance money up to ₹ 16,000/to the appellants as and when they required it. Interest would be payable at Rs. 6/- per cent per annum with monthly rests. It was also provided that the entire amount due including any further advances taken upto the limit of ₹ 16,000/- and interest would be realised from the securities in certain order which was mentioned in the mortgage deed. It was further provided that if the entire amount due could not be recovered from the property given in security, it would be recoverable personally from the appellants. The case of the bank was that after the execution of this mortgage deed, a further sum of ₹ 10,000/- was borrowed by the appellants from the bank, on March 19, 1947. Thereafter two amounts were paid into the bank, one on May 14,1948 and the other on November 24, 1949. Nothing was paid thereafter and eventually on October 31, 1952 the amount due to the bank was ₹ 39,496/8/-. The suit was file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se interest had been calculated at ₹ 9/- per cent per annum instead of ₹ 6/- per cent per annum which was provided in the mortgage deed. The appellants then went in appeal to the High Court. The mortgage deed of March 1, 1947 was not disputed in the High Court, and the two main questions raised in the High Court were, namely- (i)that the sum of ₹ 10,000/- said to have been advanced on March 19, 1947 had not been proved to have been advanced in view of the fact that no evidence was produced besides the copy of the accounts to substantiate it, and in this connection reliance was placed on s. 34 of the Indian Evidence Act, No. 1 of 1872, and that the amount of ₹ 100/- had not been paid on November 24, 1949 and therefore the suit was barred by limitation. The High Court seems to have held that the advance of ₹ 10,000/- had been proved on the basis of the copy of the account produced by the bank and the reason given for this was that there was no specific challenge to the correctness of any of the entries in the account, particularly to the specific entry relating to ₹ 10,000/- The contention as to limitation was also rejected by the High Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence ofsuch entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise . It will be clear that s. 4 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 accounts and are admitted as evidence of matters, transactions and accounts therein, but such admission is only where, and to the same extent as, the original entry itself would be admissible by law and not further or otherwise. Original entries alone under s. 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under s. 4 of the Bankers Books Evidence Act obviously cannot charge any person with liability. Therefore, where the entries are not admitted it is the duty of the bank if it relies on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t evidence, and so some independent evidence had to be given by the bank to show that this sum was advanced. What would be the nature of such independent evidence would certainly depend upon the facts of each case; but there can be no doubt that some independent evidence to show that advance had been made has to be given. Further, as in this, case the dispute was with respect to one entry of ₹ 10,000/- it should not have been difficult for the bank to produce evidence with respect thereto. We cannot therefore agree with the High Court that the advance of ₹ 10,000/- on March 19, 1947 has been proved in this case. It is urged on behalf of the bank that we might give opportunity now to the bank to prove that the money was in fact paid. We are of opinion that it is too late now after 13, years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1,1947 in the written statement of the appellants. In this view of the matter, the appeal must be allowed with respect to this sum of ₹ 10,000/ then we come to the question of limitation. The suit is clearly w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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