« (Koshi, G.J., and Varadaraja Iyengar, J.,) Appeal Suit No.42 of 1954 (E) Judgment. Varedareja Iyengar, J: The suit which has given rise to this appeal was for money due under Exhibit D hypotheca- tion bond dated 17-4-1107 and securing the balance under an overdraft account opened by the 1st defend- ant with the South Indian Peoples Bank Ltd., (in liquidation). The plaintiff is the purchaser of the rights of the Bank under Exhibit D from the Official Liquidator. According to the plaintiff an amount of Rs.3001-15-3 pies was outstanding due at the close of the transaction on 29-8-1109 con- responding to ll-4-1934 and this, along with interest, came to Rs.6954-15-6 pies for which the claim was made in the suit, which was laid on 24-6-1118. The lst defendant was ex parte. The 2nd defendant who had been impleaded as purchaser of the property charged under Ext D, put the plaintiff to proof of the Pattuvaravu transaction and of the amount actual- ly due. He objected specifically however that the interest liability had been put down in excess. 2. The court below on a previous occasion,on 16th December 1947,decreed the suit in favour of the plaintiff,though disallowing his prayer for further evidence. It found,for the purpose,tbat the 1st defendant had Pattuvaravu dealings on foot of Ext D hypothecation bond to the extent of the principal amount claimed but the method of calculation of .-- JA __,.....,,...,.,--fnterest was not correct and had to be modified. i ! -2- The 2nd defendant then preferred appeal before the Travancore-Cochin High Court as A.S.No. 1- of 1124 (T) while the plaintiff filed cross-appeal in respect of the interest disallowed. The High Court,by its judgment; in the appeal dated lst October 1952observed that the ledger and journal maintained by the Bank had alone been produced in the case without any attempt at proving the validi- ty or genuine· character of the transactions, the lst defendant even, who was ex parte, not having been examined. The plaintiff examined as P.W.2 had no personal knowledge about any of the t;ran- sactions, nor was the cashier of the Bank examin- ed as P.W.l able to speak to the transactions. The cheques said to have been drawn by the lst defend- ant on the Bank had not also been produced and moreover the journal itself was not complete and at any rate the pages which were to contain the entries corresponding to the first two entries in Ext A(l) ledger were missing. Taking these cir- cumstances into consideratjon the High Court allow- • ed the appeal but, in view of the interests involved, they directed the court below to dispose of the case de novo after examination of certain witness- es as pre_yed for by the plaintiff. Af_ter remand as above, further evidence was let in on behalf of both the plaintiff and the 2nd defendant and the court below has once again decreed the suit practically on the original basis. Hence this appeal by the 2nd defendant. 3. Learned Counsel for the 2nd defendant - appellBnt contends that the position of' the plain- tiff bas not materially improved after the remand osathat there is still no legal evidence k -3- in the case sufficient to justify the decree in appeal. However, having heard learned Counsel and scrutinised the evidence, we have no hesita- tion in saying that this criticism is entirely unjustified. The evidence let in in the case has ' • disclosed that the South Ind1an People's Bank Ltd was the S'"C':Cessor - in-interest of the Tgvancore People's Bank Ltd., and it was mostly in settle- ment of the 1st defendant's original pro-note liability to the latter Bank that Ext D itself came into existence. P.Ww.4 and 5 who were examined in the case after remand were co-directors of South Indian People Is Bank Ltd., along with the 1st defendar1t, P.W.4 being also an agent of .the Bank. P.W.4 has sworn thet himself and other directors of the Bank requested the lst defendant to d:tscha.rse his pro-note liability either by pay- mrent, or by executing security deed and the 1st defendant then offered to and did execute Ext D overdraft agreement for Rs.4900 so that the Bank could adjust the balance of the pro-note debt after setting off the probable amount due to him under a Chi tty scheme ,from the Travancore People Is Bank Ltd., ~lso taken over by the South Indian People's Bank. P.W.4 also proves Ext A pro-note loan ledger and Ext A (1) overdraft account ledger and also Ext B journal of the Bank. Ext A shows that on 23-11-1931 an amount of Rs.4634-5-0 was due to the Bank from the 1st defendant under the pro-note. On December 8, 1931, Rs.3000 were credited in that account being the proceeds of a cheque issued by the 1st defendant as against the overdraft account Ex- hibit A(l) which shows a correspond:i_ng debit. P.W.4 has sworn that ho obtained the concerned cheque -4- from the 1st defendant and also speaks to the respective debit and credit. P.W.5 speaks generally of the liability of the lst defendant ,mder the uro-note and over-draft agreement. It is no doub-i:; true that these and other entries in the accounts are in the hand-writing of clerk P.C.Mathew whose examination also was sought for by the plaintiff at time of remand and that he has not been examined in the case. Learned Counsel for the plaintiff - respondent explains that this P.C. Mathew could not be got at subsequent to the remand. We think the explanation can be accepted in the circxstances. Anyhow P.W.4 had sworn that the accounts were maintained in the usual course ' and under ~is supervision and that all the cheques covered b xts A and B accounts did pass under his scruti~v. The evidence of P.W.l cashier of the Bank, t"hough geners.lly discountea by the remand judgment, my also be referred to at this stage to the extent at least it speaks to the debit entry of Rs.3001-15-3 pies as on 11-4-1934 as made I in P. W .1' s own hand-writing. Learned Counsel for the pell·nt says that Ext B is in e mutilated " form and the cheques suuport:i..ng the entries in Et A(l) overdraft account are still not forth- coming. B,1t these defects do not, in our opinion, much metter in the circumstances. Tt shold not be forgotten, after all, that the 2nd defendant does not deny the liability of the 1st defendant on any count but has only put the ulaint:t.ff to proof. The 1st d.efendant who had notice of the assignment in favour of the plaintiff did not repudiate his liability and does not also contest this case. P?we ho1d therefore that the court below was perfectly \ -5- justified in its finding,on the evidence on record, that the plaint'transaetion has been fully proved and· there is no substm1ee in :~ -~-.-~ -~·· -,.,.,., this appeal. . :ca 3, ,,,/,,,,,.-4. ,, ;) / _......,,",.,, it is dismissed with costs. The appeal fails in the result and t \ l \ It- i l l ·r- ' ~ IJt 'November 1956. \-1