9911796707
TMI Blog2003 (9) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... dant acknowledged their liability to pay the amount due vide their letter dated 15.11.1974. Plaintiff received a sum of ₹ 2,700/- on 13.12.1974 by sale of stocks of the defendant lying pledged with the plaintiff bank and also received a sum ₹ 2,800/- on 11.12.1975 by sale of machinery pledged by the defendant with the plaintiff bank. After adjustment of this amount a sum of ₹ 6,619.09 Paise was found due and payable by the defendant. 3. The defendant filed written statement dated 28.1.1978 wherein they admitted the pledge of goods with the bank but denied pledging of machines. It was stated that the plaintiff has got signatures of the defendant on blank form without explaining the contents in the year 1969. However, subsequently, the defendant have admitted the pledging of the machines under the mid-term machinery loan on 5.5.1970 which loan was repaid after a very short term. It is alleged that the bank sold the machines without any authority and sale price was also far below the price of machinery. The defendant alleged that 12 machines were lying outside the store which was never pledged with the bank but the bank had also taken delivery of these machines wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he execution of the agreement for cash credit limit Ex.P1 as well as other document. The dispute revolves around two documents-Ex.P5 , the alleged acknowledgement dated 15.11.1974 and the statement of account Ex.PX produced by the plaintiff. 6. The learned trial court has dismissed the suit holding that no liability upon the defendant can be fastened on the basis of statement of account Ex.PX and the suit is beyond the period of limitation. However, in appeal, it was held that the suit is within the period of limitation but the defendant cannot be made liable to pay the amount on the basis of statement of account Ex.PX. 7. In view of the respective contentions of the parties, the following substantial questions of law arise in this appeal for consideration: 1. Whether document EX.P5 dated 19.11.1974 is an acknowledgement of the liability on the basis of which a decree for the recovery of the amount can be passed against the defendant? 2. Whether the suit of the plaintiff is liable to be decreed on the basis of statement of accounts even though the evidence of the plaintiff has not been rebutted by the defendant. 8. Learned counsel for the appellant has vehemently arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently and was not part of the original letter. The defendant has denied such writing in his handwriting in the pleadings as well as in the evidence. The plaintiff has not led any evidence to prove that the writing is in the hands of any of the defendant. Such writing is not even initialled by any person. There is no evidence that these words of acknowledgement were written in the hands of the defendant. In the absence of any such proof, I am unable to hold that the document Ex.P5 does not contain an acknowledgement of liability on behalf of the defendant. The first question is thus answered against the plaintiff. 11. However, the question remains, whether the suit can be decreed on the basis of the statement of account Ex.PX in view of the pleadings and the evidence of the parties. As mentioned in the preceding paragraphs, the defendant has got a copy of the statement of account before filing of the written statement. However, the defendant has not denied any entry in such statement of account in the written statement so filed. It is alleged that the bank has charged increased rate of interest, never agreed to. The defendant has disputed the claim of the plaintiff as not within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in every case where and to the same extend as, the original entry itself is now by law admission, but not further or otherwise. 13. A perusal of the provisions of the Act shows that certified copy of any entry in a bankers book is to be received as prima facie evidence of the existence of such entry and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case as the original entry is now by law admissible but not further or otherwise. 14. As mentioned above, the defendant has moved an application for supply of statement of accounts. Such statement of account was attached with the reply of the application. The defendant has not raised any objection in the written statement that such certificate is not in accordance with the provisions of Section 2(8) of the Bankers Books Evidence Act. Written statement was filed in January, 1978. If this objection was taken, the plaintiff could very well produce another statement of account authenticated in the manner prescribed under Section 2(8) of the Bankers' Books Evidence Act. The defendant has not raised any such objection of date when the same was produced in evidence. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well produce evidence to support that a sum of ₹ 10,000/- was advanced to the defendant on 19.3.1947. Learned counsel for the appellant submitted that in the facts and the circumstances of the present case, the defendant has not disputed any particular entry in the statement of account produced by the Bank. In the absence of any dispute about any entry, the plaintiff was not called upon to prove any entry by corroborative evidence. The statement of account is prima facie evidence of the existence of such entries and is admissible in respect of transaction and accounts as the original entry itself. 19. It was argued that the entire object of Bankers Evidence Act, 1891 is to make the entries in books of Bank admissible in evidence and for the use of the copies of entries of such books instead of compelling the bank to produce original entries. It is only in situation where a particular entry is disputed to show that books have not kept in ordinary course, the bank is obliged to produce corroborative evidence. The learned counsel for the appellant relied upon the following observations from the said report to contend that in view of the pleadings and evidence alone, it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry itself. Under Section 34 of the Evidence Act, entries in the books of account regularly kept in the course of business are relevant but such statement shall not alone be sufficient to charge any person with liability. The learned counsel for the appellant thus argued that the transactions in dispute are numerous and extend over a large number of years. The defendant has not disputed any entry in the written statement in respect of which the plaintiff could produce evidence. The defendant has not cross-examined the witnesses of the account books. Thus, the statements of witnesses produced by the plaintiff are sufficient to fix the defendant with liability. He has relied upon a judgment of Division Bench of this Court reported as Kaka Ram Sohanlal and Ors. v. Firm Thakar Dass Maihra Das and Anr., wherein it has been held that in the facts of the case, the plaintiffs own statement on oath in support of the entries were sufficient to fix the defendant with liability. It was further held as under: In my opinion, where the transactions in dispute are numerous and extend over a large number of years, it is not necessary to prove each and every item in the account books but onl ..... 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