1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.34 OF 2009 Date of decision:21/4/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/34-09fa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.34 OF 2009 Mir Baquer Alikhan s/o late Nawab MirFaiz Alikhan, Age 70 years, Occu: Nil, r/o Hyderabad at present Nanded Dist.Nanded. ...APPELLANT (ORIG.DEFT.NO.2) VERSUS 1. Syndicate Bank, Branch Nanded, Gurudwara Road, Through Branch Manager, and G.P.A. Shrikant Anantrao Yadhopavit. 2. M/s Ajanta Diesel, a registered Partnership Firm, Nagina Ghat Road, Nanded, summons to be served on Mir Baquer Faiz Alikhan s/o late Nawab Mir Faiz Alikha, Bazarghat Hyderabad or any other partner. (3. Mir Masaratulla s/o Mir Karmatulla, Age major, Occu: Business, R/o. 7-1-66, Ameerpeth, Hyderabad, (Summons to be served on GPA Mr.Karamtulla, r/o. 7-1-66 Partner Ajanta Diesel, Nanded) (4. Meer Mashiautulla s/o Karamtullakhan, Age major, Occu: Business, R/o. 7-1-66, Ameerpeth, Hyderabad, (Summons to be served on GPA Mr.Karamtulla, R/o. 7-1-66 Partner Ajantha Diesel, Nanded). 3 (5. Meer Muqueetulla s/o Meer Karamtulla, Age major, Occu: Business, r/o 7-1-66, Ameerpeth, Hyderabad (Partner Ajanta Diesel, Nanded).) (Appeal is dismissed as against R.Nos.3,4,5 as per order dt.6.4.2010.) ...RESPONDENTS (No.1 Orig.Pltff and nos. 2 to 5 are Orig.Deft.Nos. 1,3,4 & 5) ... Mr. S.V.Warad, Adv., for the appellant. Mr. S.R.Deshpande, Adv., for respondent No.1. Appeal dismissed as against respondent nos. 3,4,5 as per order dt.6.4.2010. ... CORAM: K.U. CHANDIWAL, J. DATE :21.4.2010 *** ORAL JUDGMENT: 1. Heard. Admit. Record and proceedings available. Paper book tendered. 2. The decree in favour of the Bank in Special Civil Suit No.11/1993, by the learned Civil Judge, Senior Division, Nanded, for an amount of Rs.2,08,808.65 with interest at the rate of 18.75 per cent per annum is assailed by the defendants in the appeal. 4 3. Mr. S.V.Warad, Counsel for the appellant ( original defendant) would argue, (a) the decree of the learned Judge is on inadmissible documents. (b) The power of attorney holder Mr.Burkute, though available, was not examined. (c) It was a case of overdraft facility, which does not permit acceptance of part payments by the Banks to save limitation. (d) The extract of the accounts are not properly proved. (e) The effect of Section 4 of Bankers Books' Evidence Act, 1891, and Section 34 of the Indian Evidence Act, 1872 will have its pivotal role. (f) The Bank should have referred disputed documents to handwriting experts. 3. Learned Counsel for the Bank submits, that even if it was an overdraft facility, for a specified period of one year, it was renewed from 5 time to time as could be seen from the record. The documents are proved by PW No.2 Narayan Shriniwas Kulkarni who was a Clerk at the material time when the transaction commenced and even at the time of evidence the part payments are proved. 4. Following points arise for my consideration: POINTS: 1) Whether the order of the learned Civil Judge, Nanded, suffers due to bar of limitation. 2) Whether the learned Judge did not appreciate the documents in proper tune and tone. 3) What order. 5. The factual matrix, not in controversy, is : It was on the application of the defendant, a partnership firm, over-drawing facilities were entertained by Bank for an amount of Rs.1,20,000/- against execution of the demand promissory note, hypothecation agreement, confirmation of the partners in relation to the facilities, with interest at the rate of 15 per 6 cent per annum with quarterly rests, repayable on demand. 6. The demand promissory note and the relevant loan documents are tendered. 7. The defendant contended there was no operation after 1990 though the facility was granted or availed on 5.7.1983. The extract of accounts produced on record illustrate that there were regular withdrawals/payments in the account of firm M/s Ajantha Diesel. It cannot be said that since the extract of the account does not specify account number, mere name by itself will not be sufficient. It will not destroy the existence of the record as maintained by the Bank in its regular course of Banking business activities. The provisions of Section 4 of the Bankers Books Evidence Act provide a feather to the Bank for production of extracts without production of original documents. I quite see, it is not that as a gospel truth these extracts are accepted on record. For that purpose, the Bank is required to establish the relevant entries, by adducing evidence. Crux lies here, the Bank has, by virtue of evidence of three witnesses and, particularly PW No.1 Kishan has, in unmistakable terms, proved various part payments made/deposited on behalf of the firm. It is curious, a payment dt.15/16.4.1990 is by a 7 cheque in the name of M/s Ajantha Diesels for an amount of Rs.3742/-. This was deposited by the appellant firm in its loan account and it was credited. Consequently, the liability was reduced. Thereafter, there was another part payment of Rs.500/- dt.16.5.1990 at Exh.69. I have perused the original record, these two Exhibits, Exhibit-70 and 69 display correct position vis-a-vis extracts of account (Exh.67 and Exh.84). 8. The objection that the loan document should have been tendered or referred to the expert, is illusory in its nature. The evidence of Bank Officer was sufficient to prove the document, it has been cemented by extracts of accounts duly certified by the competent officer. There is no requirement under the law that in each and every case the documents if challenged should be referred for examination to handwriting expert. There was virtually no injunction to the defendants, even if they were so sure that the Bank fabulously encroached upon the rights by creating false documents to resort to such avenues which, in the fact situation, they have luxuriously failed. 9. Then comes the events that have taken place in the matter. Due to negligence on the part of the appellant ( defendant), the suit 8 proceed ex parte and decreed on 18.10.1995. Consequent upon the decree, in the light of the terms of the Civil Manual, the original record was destroyed. An application Misc.R.J.E. No. 22/1998 moved by the defendant/appellant, was allowed and by order dt.22.2.2001, the ex parte decree was set aside. Since the original record was destroyed, the Court justifiably entertained plaintiffs application below Exh.34 dt.8.6.2005 to lead secondary evidence to prove the documents and, in consequence of such permission, the three are put in. 10. The controversy, as stated earlier, centers to the acknowledgment and the limitation. The loan, as stated earlier, was disbursed on 5th May, 1983, by way of facility, the acknowledgment are dt.24.10.1985 ( Exh.73, dt.10.12.1985, Exh. 74, dt.30th Nov.,1988 ( Exh.75). It is to be noted, the acknowledgment at Exh.75 is signed not by one partner but by all the four partners of the firm confirming the demand promissory note executed by the partners on 5.7.1983/10.12.1985 for the loan of Rs.1,20,000/- ( limit). In the light of this acknowledgment which is on the stamp paper, it is difficult to digest that the documents are manipulated or manufactured by the Bank. The last payment of Rs.500/- is being of 16.5.1990 ( Exh.69) bearing signature of the partner from the firm, and Bank stamp having 9 received on 16th May, 1990, will not dispel that there was no payment. There was also payment dt. 18.4.1990 ( Exh.71) in the overdraft account of the Ajantha Diesels in the sum of Rs.2,100/- signed by one of the partner under the signature of one of the partner. The suit is filed on 5.1.1993, perfectly within limitation. 11. There cannot be a quarrel on the settled position of law as enunciated in the judgment reported in AIR 1967 SUPREME COURT 1058 ( Chandradhar Goswami and others Vs. Gauhati Bank Ltd). The Apex Court has dealt with the effect of Section 4 of the Bankers' Books Evidence Act ( 18 of 1891) and Section 34 of the Indian Evidence Act 1872. In that case it was a loan transaction for Rs.10,000/-. It was not duly proved as was expected from the Bank. There was lacunae of certification from the competent authority and the Bank felt satisfied only by flashing the documents, which the Apex Court did not approve. 12. In the matter of Bank of India Vs. Ms. Allibhoy Mohammed and others ( 2008(2) AIR BOM.R. 740) demand notice was tendered without signature of the Advocate and it was tried to be relied upon without proof of its contents. The Court did not approve this procedure in terms of Section 67 of the Evidence Act, 1872. No such eventuality has emerged. 10 13. The power of attorney at Exh.92 being in original, its xerox copy was also explained and proved by the witness. Learned Counsel Mr.S.V.Warad, also relied on the judgments reported in (i) AIR 1991 Bombay 35 ( Ajay Enterprises Vs. Jayant Vegoiles and Chemicals Pvt.Ltd.) and it was a case of depositing amount as per Courts direction (ii) AIR 1991 KERALA 83 (M/s Craft Centre and others Vs. The Koncherry Coir Factories, Cherhala), which, indeed, are not helpful to the cause in issue, as the acknowledgment is before expiration and naturally valid. Taking survey of above facts, I do not see any illegality or irregularity in the order of the learned Judge in decreeing the suit. The award of interest was in consequence to the settled terms between the parties. The points formulated are answered in favour of Bank and against Appellant. Appeal dismissed. No costs. Sd/- (K.U.CHANDIWAL) JUDGE ... agp/34-09fa