SUPREME COURT OF INDIA
Before :- K.N. Wanchoo and G.K. Mitter, JJ.
Civil Appeal No. 733 of 1964. D/d. 14.10.1966.
For the Appellant :- Mr. Naunit Lal, Advocate.
Chandradhar Goswami and others - Appellant
Gauhati Bank Ltd. - Respondent
For the Respondent :- Mr. R. Gopalkrishna, Advocate.
Wanchoo, J. - This is an appeal by special leave against the judgment and decree of the Assam High Court and arises in the following circumstances. The Gauhati Bank Limited (hereinafter referred to as the bank) brought a suit against the appellants for the recovery of Rs. 40,000. Its case was that appellant No. 1 had been dealing with the bank for the needs and business of the family consisting of himself and the other appellants as karta of the family, and in that connection he had an open, mutual and current account with the bank. In that connection moneys were borrowed from the bank and moneys were also paid into the bank
and a current account had been opened in the name of appellant No. 1. On March 1, 1947, a sum of Rs. 15,956-7-0 was due to the bank from the appellants. In order to pay off that amount, a mortgage-deed was executed by the appellants in favour of the bank for Rs. 15,956-7-0, and some land, a house, a fixed deposit and three policies were given as security thereunder. The mortgage-deed also provided that the bank would advance money upto Rs. 16,000 to the appellants as and when they required it. Interest would be payable at Rs. 6 per cent per annum with monthly rests. It was also provided that the entire amount due including any further advances taken upto the limit of Rs. 16,000 and interest would be realised from the securities in certain order which was mentioned in the mortgage-deed. It was further provided that if the entire amount due could not be recovered from the property given in security, it would be recoverable personally from the appellants. The case of the bank was that after the execution of this mortgage-deed, a further sum of Rs. 10,000 was borrowed by the appellants from the bank, on March 19, 1947. Thereafter two amounts were paid into the bank, one on May 14, 1948 and the other on November 24, 1949. Nothing was paid thereafter and eventually on October 31, 1952 the amount due to the bank was Rs. 39,496-8-0. The suit was filed on April 9, 1953 for the sum of Rs. 40,000, and the usual prayer for sale of the mortgaged properties was made.
2. The suit was resisted by the appellants and a number of defences were taken on their behalf. One of the defences with which we are now concerned was that the allegation of the bank that any money was taken as loan after March 1, 1947 was incorrect. Another defence was that the allegation that on November 24, 1949, Rs 100 were repaid was untrue. Further the appellants contended generally that the accounts of the bank were not kept correctly and in regular course of business and were fraudulent and were, therefore, not relevant and not admissible in evidence.
3. Two main questions arose on the pleadings, namely-(i) what was the amount due to the bank from the appellants and (ii) whether the suit was within limitation seven issues were framed by the trial Court of which issue No. 3 related to the amount due to the bank from the appellants and issue No. 4 related to the question of limitation. Other issues related to other points to which no reference is necessary to be made now, for we are not concerned with them.
4. Issue No. 3 relating to the total amount due to the bank appears to have been overlooked by the trial Court, though when dealing with the seventh issue relating to relief to which the bank was entitled, the trial Court said that the bank was entitled to Rs. 15,956-7-0, which were due on March l, 1947 and Rs. 16,000 which were to be further advanced under the mortgage-deed of 1947, thus holding that Rs. 32,000 were due to the bank excluding interest. The way the trial Court dealt with this matter clearly shows that it did not understand what it had to find on the issue relating to the total amount due to the bank. It seems to have treated the amount of Rs. 16,000 (which was the limit of the advance to be made to the appellants) as if it was an actual advance made to them on March 1, 1947, even though the case of the bank was that that amount was not actually advanced. The copy of accounts filed by the bank showed that Rs. 10,000 were advanced out of this limit of Rs. 16,000. Further on the question of limitation, the trial Court held that the suit was within time in view of the payment of Rs. 100 on November 24, 1949. It, therefore, decreed the Suit after making a small deduction because interest had been calculated at Rs. 9 per cent per annum instead of Rs. 6 per cent per annum which was provided in the mortgage-deed.
5. The appellants then went in appeal to the High Court. The mortgage-deed of March 1, 1947 was not disputed in the High Court, and the two main questions raised in the High Court were, namely-(i) that the sum of Rs. 10,000 said to have been advanced on March 19, 1947 had not been proved to have been advanced in view of the fact that no evidence was produced besides the copy of the accounts to substantiate it, and in this connection reliance was placed on Section 34 of the Evidence Act, No. 1 of 1872, and (ii) that the amount of Rs. 100 had not been paid on November 24, 1949 and, therefore, the suit was barred by limitation. The High Court seems to have held that the advance of Rs. 10,000 had been proved on the basis of the copy of the account produced this was that there was no specific challenge to the correctness of any of the entries in the account, particularly to the specific entry relating to Rs. 10,000. The contention as to limitation was also rejected by the High Court, and the appeal was dismissed. Thereupon the appellants obtained special leave, and that is how the matter has come up before us.
6. The main question urged before us is that there is no evidence besides the certified copy of the account to prove that a sum of Rs. 10,000 was advanced to the appellants and, therefore, in view of Section 34 of the Evidence Act the appellants cannot be saddled with liability for that amount. Section 34 is in these terms:-
- "Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
- "Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise."
7. It is urged on behalf of the bank that we might give opportunity now to the bank to prove that the money was in fact paid. We are of opinion that it is too late now after 13 years to give a further opportunity to the bank to prove what should have been proved by it in the very beginning in view of the denial of liability for anything after March 1, 1947 in the written statement of the appellants. In this view of the matter, the appeal must be allowed with respect to this sum of Rs. 10,000.
8. Then we come to the question of limitation. The suit is clearly within time insofar as the liability for sale under the mortgage-deed is concerned as it was filed within 12 years of the execution of the mortgage (see Article 132 of the Limitation Act of 1908). As to the personal liability under this deed, that is beyond time as the suit was filed more than six years after the execution of the mortgage (see Article 116 ibid). Nor does the entry of payment of Rs. 100 in the accounts help the bank in this behalf. That entry is of no value under Section 19 or Section 20 of the Limitation Act for neither a writing, signed by the appellants nor an acknowledgment of payment in the handwriting of the appellants or in a writing signed by them has been proved. Nor does Article 85 of the Limitation Act of 1908 help the bank. Assuming this is a case of an open, current and mutual account, the last payment was made in November 1949. Article 85 gives limitation of three years from the close of the year in which the last item admitted or proved is entered in the accounts, (such year to be computed as in the account). The account in this case shows that the year was calendar year. The mutuality in this case came to an end in 1949 for we find from the account that thereafter there are only entries of interest due to the bank upto October 31, 1952. So the bank would get three years from the end of 1949 under Article 85 and as the suit was filed on April 9, 1953, this entry will be of no help to the bank. We are, therefore, of opinion that the bank cannot get a decree fixing personal liability on the appellants and all that it is entitled to is a decree for sale of the mortgaged property.
9. We, therefore, partly allow the appeal and declare that the amount due to the bank on April 9, 1953, the date of the suit, would be Rs. 15,956-7-0 plus compound interest at the rate of Rs. 6 per cent per annum with monthly rests upto that date minus the two sums, namely, Rs. 1,498-10-3 and Rs. 100 shown as paid on May 14, 1948 and November 24, 1949, and thereafter Rs. 6 per cent per annum simple interest will run. The trial Court will modify the preliminary decree passed by it accordingly and give the appellants three months' time after the preliminary decree has been so modified to pay the amount failing which the bank would be entitled to pray for a final decree for sale of the properties mortgaged. There will be no personal decree. The bank will get proportionate costs in the two Courts below. As the defence of the appellants has failed on the main question, they will bear their own costs throughout.
Appeal partly allowed.