1 fa-956.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 956 OF 2010 Twilight Litaka Phama Ltd. (Erstwhile Li Taka Pharmaceuticals Ltd.) A Company incorporated under the Companies Act, 1956, having its registered office at Himalaya Estate, 16-A, Shivajinagar, Pune- 411 005. ... Appellant. V/s. The ICICI Bank (Erstwhile The Sangli Bank Ltd.) A Company incorporated under the Companies Act, 1956 having its registered office at Bandra Kurla Complex and Head Office at Rajwada Chowk, Sangli- 416 416 and one of its Branch Office at Raviwar Peth, Pune- 411 002. ... Respondent. Sandeep A. Bhagwat for the appellant. Gautam Bhagwat i/b. Divekar & Co. for the respondent. CORAM : V.C.DAGA AND R.G.KETKAR, JJ. DATED : 25th January 2011. 2 fa-956.10 P.C. : This appeal is directed against the judgment and decree dated 12th February, 2010 passed by the Joint Civil Judge, Senior Division, Pune in Special Civil Suit No. 952/1997, whereby and whereunder the suit filed by the appellant (“plaintiff” for short) for the recovery of damages from the respondent-Bank (“defendant” for short) was dismissed. 2. The appeal was heard for admission extensively at the stage of admission dispensing with the record and proceedings by consent of parties since photo copies of the entire record were produced along with the appeal papers in the form of separate paper book. The parties to the appeal are referred in their original capacity for the sake of clarity. The Facts : 3. The plaintiff is a pharmaceutical company having its registered office at Pune. 4. The plaintiff had taken over business of M/s.Shubhajaya Electronics and Metal Processors the then private limited company including the balance due and payable in their term loan account to the defendant-bank, which the plaintiff could not repay. 5. The defendant-bank was required to file suit being Special Civil Suit No.2337/1996 for recovery of their 3 fa-956.10 dues in the sum of Rs.l,10,45,778/- due and payable by the plaintiff in various loan accounts. Instead of contesting the suit claim and/or preferring counter claim and/or claiming set off in the said suit, the present plaintiff (who was defendant in that suit) chose to deposit the entire amount of the suit claim in the Court including interest due and payable to the bank and satisfied the suit claim of the bank without prejudice to its rights to dispute/deny/controvert/contest the correctness, propriety, legitimacy and authenticity of the suit claim of the Bank on all conceivable grounds at opportune times. Since suit liability of the defendant-bank in Special Civil Suit No. 2337/1996 was satisfied in toto, the defendant-bank withdrew the said suit. 6. The plaintiff (appellant herein) filed present suit from which present appeal arises for damages and refund of interest alleged to have been charged by the bank in excess of the terms of contract. In the said suit claim, plaintiff prayed for adjudication of its claim. The trial Court after full trial dismissed the suit holding it to be barred by limitation, the principles of res judicata including that of constructive res judicata and estoppal. 7. Being aggrieved by the above judgment and decree dismissing the suit, present appeal is filed by the plaintiff. 4 fa-956.10 Consideration : 8. The first two issues framed by the trial Court related to the charging of excess interest in an arbitrarily manner in the term loan account and thereby causing legal injury to the plaintiff. The said issues were negatived by the trial Court with the following observations: “30. ..... It is admitted by witness of the plaintiff that all the liabilities and assets of the formal company were taken over by the plaintiff company. His admissions further reveals that Mr.Anil Bora who is Director of the Plaintiff Company and Mr.Karve the Company Secretary and he himself are the signatories on the documents of letters of acknowledgments executed in favour of the defendant bank which are produced on record at Exh.48 to 59 of dated 01.07.85, 14.12.90, and 06.12.93. It does not bear the endorsement of the executants stating that the balance not accepted. If at all as per stand of the plaintiff company the defendant bank had charged interest excessively, arbitrarily, illegally then why the Chairman, Director, Company Secretary and witness Sanjeev Tole himself executed the letters of acknowledgments which are at Exh.48 to 59 in favour of the bank. By act of execution of letter of acknowledgment in favour of the defendant bank the inference could be very well drawn that they had admitted outstanding dues against the three term loan accounts, hence they have executed it without disputing the rate of interest charged by the defendant bank. Further it is to be noted that though as per his statement, since year 1992 there was dispute regarding rate of interest still he himself, Chairman Mr.Anil Bora and Company Secretary has executed letter of acknowledgment on dated 06.12.93 which are at 5 fa-956.10 Exh.57 to 59. It goes to show that the plaintiff company had accepted the dues without disputing the rate of interest, hence they might have been executed it in favour of the defendant bank.” 9. We were taken through the documents and evidence on record. Each and every finding recorded by the trial Court on issue Nos.1 and 2 can be supported on the basis of evidence available on record. 10. At this juncture, it is relevant to note that in the earlier round of litigation in the form of bank’s suit, the issue of excessive charging of interest was contested by the present plaintiff right upto this Court in Writ Petition No.1668/1995 and appeal arising therefrom bearing Appeal No.398/1996 and on merits the said issue was negatived in those proceedings. 11. Needless to mention that the debt, due and payable to the bank, has admittedly been acknowledged by the present plaintiff/appellant from time to time by executing balance confirmation letters and thereunder impliedly promised to pay bank’s dues without any demur. The debit entries in passbook and confirmation slips signed by plaintiff, as a customer of the Bank, binds the plaintiff. When confirmation slips are sent and signed by the customer, he is bound by the debits made, is the law laid down by this Court in the case of M/s.R.Sureshchandra & Co. v. M/s.Vadnere Chemical Works, AIR 1991 Bombay 44 and the High Court of Kerala in the case of Essa Ismal v. 6 fa-956.10 Indian Bank Ltd., 1963 (1) Com.L.J. 194. Thus, the findings recorded by the Trial Court on these issues cannot be faulted. 12. It is, no doubt, true that Mr.Sandeep Bhagwat submitted that in the earlier suit instituted by the defendant- bank, namely, Special Civil Suit No.2337/1996, the plaintiff herein had deposited the entire amount of the suit claim including the interest amount without prejudice to its legal rights to dispute/deny/controvert/contest the correctness, propriety, legitimacy and authenticity of the suit claim of the plaintiff Bank on all conceivable ground at opportune time. He, therefore, submitted that the plaintiff is, undoubtedly, entitled to agitate the issues raised in the present suit. Since we have independently examined the merits of the case, we do not find any substance in this submission. We concur with the view taken by the trial Court on these two issues. 13. So far as other issue relating to plaintiff’s entitlement to claim damages to the extent of Rs. 1,25,00,000/- is concerned, we were taken through the plaint and the evidence on record. Having examined the available evidence on record, we have no hesitation to record our finding that claim in this behalf is absolutely frivolous and false. No material facts and/or material particulars are to be found in the pleadings. No cause of action is made out. When right to claim damages arose is also not to be found in the plaint. The plaint pleadings do not make out any case for damages against the bank even 7 fa-956.10 remotely. At this juncture, it is relevant to mention that once having paid the amount of loan claimed by the bank in suit after due contest but before judgment, may be without prejudice to the bank’s claim, and having failed to raise any counter claim or defence relating to the alleged overcharging of the interest and/or damages, the appellant/plaintiff can hardly maintain such a suit. Mere payment under protest does not save right to file fresh suit when the plaintiff had all defences available. 14. So far as legal issue relating to the limitation is concerned, it was rightly held by the trial Court that the suit filed by the appellant/plaintiff was barred by limitation. No cause of action or its rise in favour of the present plaintiff can be traced from the plaint. Taking overall view of the matter, appeal has no merit. 15. At this juncture, it is relevant to mention that appellant/plaintiff did not produce any of its account books in the trial Court to establish that at any point of time any dispute relating to interest was raised. As per commercial practice any businessman or business establishment or a person paying income tax, having business running into crores of rupees is expected to maintain books of accounts. The appellant/plaintiff must have maintained ledger as one of the books of accounts. The appellant/plaintiff in its ledger account must have opened bank account and must have recorded all the banking transactions with the defendant-bank. Every year plaintiff must have reconciled and tallied its balance-sheets. Had 8 fa-956.10 there been any discord between bank account and the ledger account, the balance sheet of the establishment could not have been finalized. It was, therefore, necessary on the part of the appellant/plaintiff to produce its books of accounts to establish that really there was dispute regarding interest or that they had suffered real loss on that count. As held by the Apex Court in Hiralal v. Badkulal, AIR 1953 SC 225, the party who is in possession of the books of accounts kept by him and from which the dispute could be ascertained is expected to produce the best evidence in the form of books of accounts before the Court. He cannot be heard to say, relying upon the abstract doctrine of onus of proof, that it was no part of his duty to produce them unless he was called upon to do so. In the instant case, the appellant itself was plaintiff. The burden of proof was on the appellant/plaintiff. In the circumstances, it was all the more necessary for the appellant to establish their case on its own merits by producing account books. This is a fit case to hold that had the account books been produced by the plaintiff, it would have gone against it. This a fit case for drawing adverse inference against it. 16. The entire appeal, in our considered view, is misconceived. Claim set up is frivolous. Consequently, appeal is liable to be dismissed in limine. Appeal is, accordingly, dismissed with no order as to costs. (R.G.KETKAR, J.) (V.C.DAGA, J.)