Andhra Pradesh High Court - Amravati

Principal Senior Civil Judge vs N on 17 July, 2023

        THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                      C.M.A.No.461 OF 2019

JUDGMENT:

The defendant/ respondent before both the Courts below

filed the present Civil Miscellaneous Appeal before this Court.

2. Aggrieved by the Judgment and Decree dated 17.01.2017

in A.S.No.4 of 2014 on the file of the Court of II Additional District

Judge, Vijayawada by setting the aside the order and decree dated

05.03.2012 in O.S.No.964 of 2010 on the file of the Court of the

Principal Senior Civil Judge, Vijayawada.

3. The respondent herein is the plaintiff/Bank in the suit in

O.S.No.964 of 2010 on the file of the Court of Principal Senior Civil

Judge, Vijayawada, who filed a suit against the appellant/

defendant for realization of the loan amount with interest and the

trial court dismissed the suit on 05.03.2012 without costs, holding

that the defendant summoned the plaintiff bank to produce

Savings Bank Account of the defendant, who in turn produced the

same and he himself examined as PW-1 to prove the contents of

the account failed to substantiate the entries of the account copy

and he prepared the account copy and they are true and genuine.

Further under Section 65-B of the Indian Evidence Act (in short

"the Act", a specific procedure is prescribed for preparing the

Account Copy or produced basing on an electronic devise. All the

computers output may follow the procedure prescribed under

Section 65-B of the Act. Therefore Ex.A5 account copy does not

satisfy the requirement under Section 65-B of the Act and does not

contain a certificate produced by the plaintiff bank marked as

Ex.A5 in the suit. Therefore plaintiff bank failed to establish his

case in proper perspective and accordingly the suit was dismissed.

4. Assailing the same, the plaintiff/ Bank preferred an

Appeal in A.S.No.4 of 2014 and the same was allowed setting aside

the decree and judgment of the trial court holding that since the

bank lends the amount belonged to the public and since the

employees of the plaintiff bank will not have any personal

advantage by improper disbursement of loan amount, therefore it

is not proper to dismiss the suit, when the statement of account

filed by the defendant is on record, would show the disbursement

of the loan amount by the plaintiff bank and remand the suit to the

trial court to pass judgment afresh after affording ample

opportunities to the respective parties.

5. Heard Mr. Y. Ramatirtha, learned Counsel for the

appellant and none represented for the respondent/ Bank, though

service of notice effected. Hence service held sufficient on the

respondent.

6. During hearing learned counsel for the appellant would

contend that the appellant approached the respondent/ bank for

personal loan of Rs. 1,50,000/- in February-2007 and the bank

executives obtained several signatures of the appellant/ defendant

in a hurried manner. Thereafter she started withdrawing the

money from the bank and as the bank informed that an amount of

Rs. 1,50,000/- was credited. Subsequently without the knowledge

of the appellant, the bank deposited Rs. 44,000/- in to the account

of the appellant without her consent. By suspecting the conduct of

the respondent/ bank, she obtained copy of the statement of her

S.B Account and found that there was a fraud played by the bank

and questioned the same, the bank Manager assured her to resolve

the problem, in the meantime the bank filed a case in C.C.No.1135

of 2009 under Section 138 of N.I.Act against the appellant herein.

Therefore the appellant pleaded that Rs. 2,40,000/- was not

disbursed to her and since she paid Rs. 2,05,137/- for the loan

amount of Rs. 1,50,000/- and she is not due any amount to the

bank. The trial court after examining the entire material on record

and evidence on record, the trial court observed that there was an

earlier account in the name of the defendant and the defendant

was paying the monthly instatements at Rs. 8,919/-. There was

subsequent loan account which was denied by the defendant that

the forms and documents signed on the earlier occasion is used for

the present suit, which is not proved by the respondent/bank.

Therefore the trial court rightly dismissed the suit of the plaintiff.

7. In support of his contentions, he relied on a Judgment of

the High Court of Madras (Madurai Bench) in "R. Selvam Vs. N.

Vasudevan and Others"1 wherein it was held as follow:

"13.......It was also categorically held that the First Appellate Court has got every right to take further evidence, or appoint an advocate commissioner, if so necessary and there is no necessity for remanding the matter back to the trial court as the lower Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law. Thus, it is clear that an appellate court should be vigilant in ordering a remand, when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC, because an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided".

So also, he relied on a decision of Patna High Court in

"Pragash Singh and Others Vs. Madan Mohan Prasad Sing

and Others"2 wherein it was held as follow:

"6. IT has been held by the Privy Council in Parsotam Thakur v. Lal Mohar Thakur, AIR 1931 PC 143 that the above rule entitles the appellate Court to receive additional evidence only if it requires, that is to say, finds it needful that additional evidence be taken. It has been ruled in that case that the provisions of this rule are clearly not intended to allow a litigant who had been unsuccessful in the lower Court to patch up the weak parts of his case and fill up the omission in the Court of

2018 LawSuit(Mad) 7495

AIR 1960 PATNA 47

appeal. It has further been pointed out there that the Court may require additional evidence to enable it to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it upon its appreciation of the evidence as it stands......."

8. Learned counsel for the appellant would contend that the

decisions cited supra are applicable to the facts and circumstances

of the case and that the appeal is liable to be allowed.

9. As could be seen from the material on record that the

respondent has not rebut the contentions of the appellant, though

an opportunity has been given. However, the appellate court is

vigilant in ordering a remand, when the case is not covered as per

requirements and law. In the instant case, the trial court rightly

observed that under Section 65-B of the Indian Evidence Act, a

specific procedure is prescribed for preparing the accounts or

produced basing on an electronic devise. The copy of the Account

furnished by the Bank does not satisfy the requirement under