Delhi High Court
Oriental Bank Of Commerce vs Shri Mohinder Singh & Ors. on 1 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 489/2001
% 1st March, 2011
ORIENTAL BANK OF COMMERCE ...... Appellant
Through: None.
VERSUS
SHRI MOHINDER SINGH & ORS. ...... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since 17.1.2011.
Today it is effective item no. 3 on the Regular Board. It is 12:45 pm but no
one appears for the parties. I have therefore perused the record and am
proceeding to dispose of the appeal. The respondents are ex parte in this
Court as they have failed to appear even after publication. They were ex
parte even in the Trial Court.
2. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
RFA No. 489/2001 Page 1 of 4
and decree dated 16.8.2001 whereby the suit of the appellant/bank for
recovery has been dismissed although the bank proved the due
filing/institution of the suit, as also the security documents and also the
acknowledgment of debts. The suit was dismissed basically on the ground
that the amounts shown to be due in the acknowledgment of debt forms are
not reflected by way of entries in the statement of accounts. I have already
noted that the defendants were ex parte, yet the suit was dismissed.
3. The facts of the case are that the respondent no. 1 obtained a
term loan from the appellant bank for purchasing of an industrialized sewing
motorized machine and for which necessary documents were executed and
which have been exhibited by the Trial Court. The loan/hypothecation
agreement has been exhibited as Ex.PW1/2. The loan application form was
exhibited as Ex.PW1/1. The guarantee documents executed by respondent
nos. 1 and 2 were exhibited as Ex.PW1/3 and Ex.PW1/4. The other vouchers
showing receipt of the amount were exhibited as Ex.PW1/5, Ex.PW1/6 and
Ex.PW1/7. The balance confirmation letter dated 9.6.1997 was exhibited as
PW2/1 and the balance confirmation letter dated 10.3.1999 has been
exhibited as PW3/9. The statement of account has been exhibited as
Ex.P3/11.
4. The reasoning of the Trial Court for dismissing the suit, is very
curious to say the least and of course wholly illegal and perverse. It is
RFA No. 489/2001 Page 2 of 4
therefore necessary that I reproduce the findings of the Trial Court for
dismissal of the suit and which reads as under:-
"5. I have heard the ld. counsel for the plaintiff and have
carefully perused the records of the case. According to the
plaint, the defendants had executed balance
confirmation/revival letter executed by defendant no.1 on
9.6.97 and 10.3.99. As regard to first balance
confirmation/revival letter is concerned, the same has been
proved through the witness, PW-2 who has deposed that a
sum of Rs.1,15,595/- (i.e. 100000/- + 15,595/-) has been
acknowledged by Mohinder Singh vide Ex.PW-2/1. On
perusing the statement of account Ex.PW-3/11 wherein
Shri V.K. Soin who has field the present suit has stated that
as per the books of accounts maintained by the plaintiff
bank, a sum of Rs.1,94,823/- shows a debit balance in term
loan account which includes interest upto 7.11.2000 which
is recoverable from the defendant by the plaintiff. On
perusing the said statement of account, I observe that no
entry finds mention in regard this amount on 9.6.97.
Although there is a entry on 30.5.97 and 9.7.97 but there is
no such entry. Similarly the other acknowledgement dated
10.9.99 wherein the defendant has allegedly
acknowledged on 10.3.99 wherein the defendant has
acknowledged Rs.1,59,553/- as on 10.3.99 which has been
proved as Ex.PW-3/9 this amount does not find mentioned
in the statement of account, Ex.PW-3/11. Therefore, in my
view, the plaintiff bank has not properly maintained the
accounts of the defendant and in view of the above
observations, the such type of statement of account
cannot be relied upon by the plaintiff and the same cannot
be believed as true and correct as being kept under the
Banker's Book of Evidence act. I further observe that in
the plaint I find mentioned that a legal notice sent to the
defendants on 9.4.98, a copy of which has been proved as
Ex.PW-3/5. In this legal notice, a debit balance of
Rs.1,79,392/- including interest upto 30.6.98 has been
shown but on perusing the statement of account, I do not
find any balance of this amount as on 30.6.98.
xxxx xxxx xxxx xxxx"
RFA No. 489/2001 Page 3 of 4
5. The reasoning of the Trial Court is clearly faulty because the
balance confirmation letter showed the amount due on a particular date
whereas interest is applied/debited in the account on specific dates, and
which may not be the dates of the acknowledgment of debt letters. The Trial
Court has therefore committed a clear-cut perversity in requiring that what is
the amount due as stated in the acknowledgment of the debt letter have
necessarily to find mention in the statement of accounts. There is no such
requirement in law and nor is the same a practice of any bank whatsoever.
6. In view of the above, I set aside the impugned judgment and
decree and decree the suit of the appellant bank against the respondent for
a sum of Rs.1,94,823/- with costs and pendente lite and future interest till
realization of the decretal amount at 12 % per annum simple. Decree sheet
be prepared. Trial Court record be sent back.
MARCH 01, 2011 VALMIKI J. MEHTA, J.
ak
