IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 635 of 2000. Judgment reserved on : 20.5.2010 Date of decision : 22.7.2010 State Bank of India …Appellant. Versus M/s Vishav Karma Furniture House and anr. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. K.D.Sood, Advocate. For the Respondents : None. Kuldip Singh , Judge The appellant has come in appeal against dismissal of suit of the appellant by both the courts below. The respondent No.1 is the principal borrower whereas respondent No.2 is the guarantor. 2. The facts, in brief, are that the appellant had filed the suit through Manager and Principal Officer of the Bank on the allegations that respondent No.1 had approached the bank in January 1995 for Cash Credit Limit of Rs. 25,000/-, which was allowed on 31.1.1995. The amount was recoverable with interest at the rate of 12 ½ % per annum with quarterly rests. The respondent No.2 stood surety for respondent No.1 and she executed simple 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.. yes 2 mortgage deed of her property undertaking to pay the amount of limit allowed to respondent No.1. 3. It has also been alleged that respondent No.1 had executed promissory note in the sum of Rs. 25,000/- in favour of the bank. The respondent No.1 had deposited some amounts upto 30.3.1995 but thereafter he did not pay any amount. In these circumstances, the suit was filed against the respondents for recovery of Rs. 40,225/- jointly and severally along with future interest and costs. The respondents were served, they were proceeded exparte. The bank examined PW-1 K.S. Verma and PW- 2 Sanjeev Rana, Advocate and tendered some documents in evidence. The suit was dismissed by the learned Sub Judge on 30.9.1999 on the ground that bank has not proved the case against the respondents. 4. The judgment dated 30.9.1999 was assailed by the bank in appeal before the learned lower Appellate Court. An application under Order 41 Rule 27 CPC was filed for additional evidence for examining Ram Lal in whose presence the documents were executed on 31.1.1995 and S.C.Madan, who filed the suit on 2.8.1995 on the plea that the counsel for the bank bonafide believed that with a view to cut short the expenses he did not examine the said witnesses, however, the examination of said witnesses is necessary in the Court to remove obscurity in the evidence and to advance substantial justice. Initially, an Advocate appeared on behalf of the respondents but lateron he stopped appearing and respondents were proceeded exparte by the learned lower Appellate court. The application under Order 41 Rule 27 CPC and appeal 3 were dismissed on 25.9. 2000 by learned District Judge, hence second appeal by the bank which has been admitted on the following substantial questions of law:- 1. Whether the plaintiff had proved its case on the basis of unchallenged and unrebutted ex-parte evidence and the findings of the courts below are based on misreading and misconstruction of oral and documentary evidence to which a presumption of truth was attached particularly Ex.P-1 to P-17 ? 2. Whether the District Judge has acted with illegality in rejecting the application under Order 41 Rule 27 CPC when a clear case for leading additional evidence was made out ? 5. I have heard Mr. K.D.Sood, Advocate, learned counsel for the appellant, none appeared on behalf of the respondents. Mr. K.D.Sood, learned counsel for the appellant has submitted that the learned lower Appellate Court has erred in dismissing the application of the appellant under Order 41 Rule 27 CPC. The additional evidence sought to be produced is based upon the documents. It has been submitted that recovery of public money is involved, therefore, learned lower Appellate Court should have taken liberal approach while considering the application for additional evidence. It has been submitted that even on the basis of the documents on record, the appellant has proved the claim against the respondents which has not been contested by the respondents. The learned counsel for the appellant has prayed for decreeing the suit. 4 6. The substantial question of law No.2 is taken first. The application under Order 41 Rule 27 CPC was filed in the lower Appellate Court. The application is supported by an affidavit of S.K.Tenja, Branch Manager. In para 5 of the application, it has been alleged that counsel for the plaintiff bonafide believed and with a view to cut short the expenses he did not examine the officer of the Bank who advanced the loan and obtained the documents and also the officer who filed the suit. There is no corroborative material on record in support of these averments made in the application for additional evidence except affidavit dated 4.8.2000 of S.K.Tenja. 7. There is no averments in the application that the counsel who conducted the case in the trial court informed S.K.Tenja the reasons for not examining Ram Lal and S.C.Madan witnesses earlier. There is nothing on record how S.K.Tenja came to know the reasons why Ram Lal and S. C.Madan were not examined by the counsel in the trial Court. Therefore, the affidavit in support of additional evidence application of S.K.Tenja cannot be believed. S.K.Tenja has verified the affidavit on the basis of ‘knowledge’ and ‘belief’. The appellant has not placed on record an affidavit of counsel representing the bank in the trial Court or his some communication indicating the reasons why Ram Lal and S.C.Madan were not examined by him in the trial Court. The application for additional evidence is an after thought. 8. The learned lower Appellate Court in para 16 of the impugned judgment has recorded that learned counsel for the appellant has conceded at bar that first two contingencies to allow the additional evidence at appellate stage are not available 5 to the bank. The contingencies referred to are the contingencies mentioned in Rule 27 of Order 41 CPC. In Sunder Lal and son v. Bharat Handicrafts Private Ltd., reported in AIR 1968 Supreme Court 406, it has been held as follows:- “It was said at the Bar that the importance of the document was not realized by those in charge of the case. We do not think that the plea would bring the case within the expression “other substantial cause” in O.41, R.27 of the Code of Civil Procedure.” The lower Appellate Court has considered the application for leading additional evidence filed by the appellant and has rightly dismissed the same. The appellant has failed to make out a case that the application for additional evidence was wrongly dismissed by the learned lower Appellate Court. The substantial question of law No.2 is decided against the appellant. 9. The appellant has examined PW-1 K.S.Verma and PW-2 Sanjeev Rana. PW-1 in his statement has not stated that he is authorized to file the suit. He has exhibited documents Ex.P-1 to P-17 but in his entire statement he has not stated that these documents were executed in his presence. In United Commercial Bank vs. Durga Dass and another 1995 (1) SLC 497 it has been held that if the documents have not been legally proved then such documents are to be ignored. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others AIR 1971 SC 1865, it has been held that mere marking of the document does not dispense with its proof. PW-2 Sanjeev Rana has proved mortgage deed Ex.P-7. The documents Exhibits P-1 to P-17 except Ex.P-7 have not been proved in accordance with law. Therefore, these documents 6 cannot be looked into for considering the case of the appellant. Ex.P-7 is the mortgage deed but mere proof of Ex.P-7 mortgage deed is not of any help to appellant inasmuch as in absence of proof of liability of respondent No.1 to pay any amount to appellant the suit cannot be decreed in favour of the appellant just on the basis of mortgage deed Ex.P-7. 10. It has been submitted that statement of account Ex.P-17 proves the case of the appellant. PW-1 has not proved the statement of account Ex.P-17 in accordance with law, therefore, Ex.P-17 is of no help to the bank. In any case in Chandradhar Goswami and others v. Gauhati Bank Ltd. reported in AIR 1967 SC 1058, it has been held as follows:- “No person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. The 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 Banker’s Books Evidence Act obviously cannot charge any person with liability.” Thus, seen from any angle, the appellant has failed to prove the case against the respondents. The two courts below have recorded concurrent findings of facts against the appellant. The view taken by the two courts below is not perverse and it emerges from the evidence on record. There is 7 no merit in the appeal. The substantial questions of law No.1 is decided against the appellant. 11. In view of the above discussion, the appeal is liable to be dismissed and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. July 22, 2010. (GR)