Tuesday, 16 August 2016

When court should not allow production of certified copies of documents at belated stage?

Coming to the merit of the case, plaintiff has not produced duly certified
copy of the books of accounts as is required under Section 4 of the Banker Books
of Evidence Act, 1891. Some uncertified copies were placed on record and the
same has been marked as Exhibit-26. Merely marking of a document as exhibit
would not elevate its status to that of evidence unless the same is produced in
accordance with law. The suit was instituted in the year 1999 and 16 years have
elapsed thereafter. So there is no question of applying the principle of Section 30
of the Code of Civil Procedure at this stage for giving an opportunity to the bank
for making amend for the mistake committed in course of trial. This would 
amount to injustice to the defendants and so the findings of the learned trial
court that exhibit-26 is not admissible in evidence also cannot be interfered with.
This being the position, the basic claim of the plaintiff has remained
unestablished. The appeal does not deserve to be allowed.
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
RFA. No. 2/ 2005
UCO Bank,

 -Versus-
M/S Choudhury Rice Mill

PRESENT
HON’BLE MR. JUSTICE N. CHAUDHURY

Date of Judgment : 13.05.2015
Citation:AIR 2016(NOC)546 Gauhati

UCO Bank as appellant has preferred this appeal challenging decree of
dismissal passed by the learned Civil Judge, Senior Division , Hailakandi on
18.6.2004 in Title Suit No. 37 of 1999.
2. The Regional office of the UCO Bank (shown as United Commercial Bank,
Silchar) instituted Title Suit No.37 of 1999 in the court of the learned Civil Judge
at Hailakandi stating that on receipt of application for loan from defendant No. 1,
M/S Choudhury Rice Mills owned by Md. Abdul Rahim Choudhury for loan of
Rs.2,21,000/, the plaintiff bank agreed to sanction Rs.1,93,000/- on condition to
produce suitable financially sound guarantor undertaking to repay the loan
money subject to terms and conditions. Accordingly, an agreement was executed
by defendant No. 1 with the plaintiff relating to term loan on 12.10.1989 and a
deed of hypothetication of plant and machinery was also executed on the same
date to secure the loan. The defendant No. 1 executed receipt documents in
favour of the plaintiff. Defendant No. 2 being a guarantor also executed
necessary documents. The aforesaid loan was supposed to be repaid on monthly
installments within 7 years with a moratorium of six months and the equated
money installments were Rs.2680/- and the last installment was Rs.2720/-. But
defendant No. 1 violated the terms and conditions in regard to payment of
installment. He paid some money as per his convenience which was duly
adjusted against loan amount with interest but the repayment was so negligible
that balance continued increasing day by day despite undertakings to liquidate
the loan. The defendants ultimately failed to honour the commitment and under
such circumstances, bank issued notice through pleader on 3.3.1998 demanding
Rs.4,31,631.54 on or before 31st March, 1998. Upon receipt of the notice, the
defendants replied that he deposited Rs.10,000/- and Rs.3,000/- on 16.3.1998
and 29.4.1998 respectively with the plaintiff bank and requested the bank to
allow him to pay total sum of Rs.2,00,000/- against the whole amount alongwith
interest. As the same was not in keeping with the norms of the bank , the bank
could not accede to the request and as such filing of the suit became necessary.
The suit was accordingly filed on 23.9.1999 praying for a preliminary decree
against the defendants for Rs.5,16,761.14/- along with pendentalite interest @
15.05 % per annum and for a final decree thereafter if defendants failed to make
payment of the amount. A final decree was prayed for sale of mortgaged
property described in the schedule to the plaint. However, in the body of the
plaint there was no recital to the effect that the defendant No.1 made mortgage
of any immovable property by deposit of title deed or otherwise.
2. Upon receipt of summon, the defendants submitted a joint written statement
denying the averments made in the plaint and denied all the statements in
entirety. However, defendants stated that on 29.6.1969 defendant No. 1 prayed 
for loan of Rs.2, 21, 000/- in respect of installment of rice mill known as M/S
Choudhury Rice Mills and accordingly, plaintiff bank sanctioned Rs.1,93,000/- in
favour of defendant No. on 28.8.1989 for which defendant No. 2 stood
guarantor. But, the Government delayed issuance of license from 19.10.1989 to
7.8.1993 but for which the mill could not start functioning. The department of
supply under the Government initiated proceeding against defendant No.1 under
the Essential Commodities Act in which defendant No. 1 was ultimately
discharged on 4.1.1994. It is under such circumstances defendant No.1
requested the plaintiff bank to exempt him from the payment of interest for the
period from 19.10.1989 to 7.8.1993. The defendants also requested the bank to
provide him with working capital which the bank did not comply and so the very
purpose for which the loan was prayed for did not materialize. The bank
permitted moratorium only for a period of 6 months. The defendant No. 1 further
asserted that he did not commit default in repayment of loan money and the
defendant No.2 also discharged his duties properly in this regard. The defendant
No. 1 claimed to have paid Rs.1,35,551/- on different dates to the plaintiff and
requested to close the accounts offering to pay of Rs.2 lakhs in all. It is to be
noted that in this written statement, the defendants specifically raised objection
as to limitation not only in para-6 but also in the factual part of the written
statement. With these averments, defendants prayed that the suit be dismissed
with cost.
3. Upon such rival contention of the parties, the trial court framed as many as
six issues which are as follows:
(1) Is there any cause of action?
(2)Is the suit maintainable in law and on facts?
(3) Is the suit is barred by limitation?
(4)Is the suit bad for misjoinder and non joinder of
parties?
(5)Whether the plaintiff is entitled to get a decree for
recovery of Rs.516761.14 from the defendants with
pendentilite interest @Rs.15.5.% p.a.?
(6) to what relief, the parties are entitled ?
4. In course of trial, plaintiff examined one witness, Monish Sikdar, Branch
Manager, UCO Bank, Krishnapur as sole witness. The examination-in-chief was
submitted in the form of affidavit under Order XVIII Rule 4 of the Code of Civil
Procedure wherein a number of documents were mentioned. In his examination
–in-chief, the loan application was exhibited as Exhibit-1, sanction letter as
Exhibit-2, loan agreement as Exhbiit-3 and the deed of hypothetication as
Exhibit-4. Although it was not mentioned in the plaint that defendant No.1 made 
equitable mortgage of any immovable property but in examination-in-chief, PW
deposed that by Exhbiti-5 the defendants created an equitable mortgage. In the
record however, a title deed is found marked as Exhibit-6 whereas a certificate
by the Manager of the bank is marked as Exhibit-5 alleging that the title deed
has been received from the defendant No. 1. In fact there is nothing on record to
hold that defendant No.1 deposited any title deed for creating mortgage of any
immovable property. PW-1 further stated that in page-4 of the examination-inchief,
Exhibits-14 to 23 are acknowledgement receipt as to balance confirmation
by defendant No.1 in which Exhibits No.14(a) to 23(a) are the signatures of
defendant No.1. Exhibit-14 is actually a letter written to defendant No.1 by the
Manager asking for repayment and it is not balance confirmation letter. Exhibit-
14 is a letter of balance confirmation allegedly made by defendant No.1 on
3.1.1990 . Exhibits- 16 and 17 do not contain any date. Exhibit-18 is the balance
confirmation dated 10.10.1990. Exhibit-19 is the balance confirmation dated
8.1.1991, Exhbit-20 is of 27.9.1991, Exhibit-21 is of 30.3.1992, Exhibit-22 is of
25.9.1992 and Exhibit- 23 is dated 23.7.1994. Although a balance confirmation
dated 23.9.1996 has been placed on record and marked as Exhibit-24 but there
is no statement in regard there to in examination-in-chief. Rather in the
examination –in-chief Exhbit-24 is described to be a letter dated 5.6.1998 in
regard to statement of loan. Actually, letter dated 5.6.1998 has been marked as
Exhbit-25 in the record. So , although a balance confirmation dated 23.9.1996 is
on record it has neither been exhibited nor has the statements been made in the 
examination-in-chief and so this document cannot be stated to have been
proved. The contents of the documents have not been proved by PW-1 in any
way and since there is no mention about this balance confirmation in the
examination-in-chief, the defendants are not expected to cross-examine the
witnesses on this issue. Exhibit-26 have been placed on record by PW-1 which
are uncertified copy of the books of accounts maintained by bank and so it
cannot be stated to have been evidence within the meaning of Section 4 of the
Banker Books of Evidence Act, 1891 .
5. The defendant No. 1 examined himself as DW-1 and he also exhibited as
many as 15 documents on his behalf.
6. After consideration of these materials on record and after hearing the
learned counsel for the parties, the learned trial court by its judgment and decree
dated 18.6.2004 dismissed the suit in entirety. The learned trial court held that
there is no cause of action of the plaintiff and the suit is also not maintainable in
the present form because of mis-joinder of cause of action. Coming to issue
No.3, learned trial court held the suit is barred by limitation as the last date of
mutual transaction was on 23.9.1996 and the suit having been filed in the year
1999, the same was barred by limitation. It appears that Exhibit-24 was wrongly
construed to be exhibit-25 by the learned trial court thereby. Upon such finding,
the other issues namely, Issue Nos. 4, 5 and 6 were also decided against the
plaintiff and consequently, the suit of the plaintiff was dismissed. It is this
judgment which has been brought under challenge in the present appeal.
7. I have heard Mr. PC Goswami, learned counsel for the appellant and Mr. AB
Choudhury, learned senior counsel assisted by Mr. MA Choudhury for the
respondents. I have perused the deposition of the parties and the exhibits
adduced by them apart from pleadings of the parties.
8. Mr. PC Goswami, learned counsel for the appellant would argue that plaintiff
having been filed the suit for realization of money in the title suit with further
prayer for passing a final decree for sale of mortgage property if the plaintiff fails
to comply with the preliminary decree, the learned trial court committed error not
only in holding that the suit is devoid of cause of action and not maintainable
but also in holding the same barred by limitation. According to the learned
counsel Article 62 of the Limitation Act would govern the case and so suit having
been filed within the period of 12 years , the same ought to have been held as
not barred by limitation. The learned counsel has placed reliance on the
judgment of the Hon’ble Supreme Court in the case of Chandrdhar Goswami –
vs-Gauhati Bank Ltd. reported in AIR 1967 SC 1058 to argue that suit in
question is covered by Article 62 of the Limitation Act, 1963.
9. Per contra, Mr. AB Choudhury, learned senior counsel would argue that even
if the suit is held to be maintainable and not barred by limitation in that event
also the plaintiff suit cannot succeed because the plaintiff failed to prove its case
by producing cogent evidence. Exhbit-26 which has been presented in the record
were not certified by bank authority as required under section of 4 of the Banker
Books of Evidence Act, 1891 and so the suit of the plaintiff has rightly been 
dismissed by the learned trial court. Coming to the question of limitation, Mr.
Choudhury would argue that it is a suit for release of money and so this part of
the claim cannot come under Article 62 of the limitation Act and thus the very
first prayer for preliminary decree is barred by limitation. Once the preliminary
decree is found to be not maintainable being barred by limitation, the question of
final decree does not arise and so trial court has not committed any error in
holding that the suit is barred by limitation.
10. I have gone through the plaint. In the plaint, the petitioner has made a
prayer for preliminary decree against the defendants for payment of Rs.
5,16,761.14/- along with interest @ 15.05 % per annum. This is out and out a
prayer for getting money decree and so it cannot be governed under Article 62 of
the limitation Act. A prayer, however, has been made that in the case defendants
fail to make payment of the decretal amount mentioned in preliminary decree in
that event plaintiff may be permitted to apply for final decree for sale of
mortgage property. As pointed out above, plaintiff has miserably failed to bring
necessary documents on records to show that defendants presented any title
deed for creating mortgage by deposit of title deed. Title deed has been brought
on record but there is nothing to show that this deed was handed over by
defendant No.1 to the plaintiff expressly intending to create mortgage of
property by deposit of title deed or otherwise. The plaintiff has neither pleaded
that there was a mortgage nor did the plaintiff produce any document to show
that defendant created mortgage by deposit of title deed. Even if such 
documents would have been produced, the same perhaps could not have been
considered for lack of appropriate pleadings. This is because no amount of
evidence can be taken into consideration which is beyond pleading. In the case
in hand, there being no definite pleading as to mortgage created by defendant
no. 1 in respect of any mortgaged property , the title deed produced by plaintiff
on record as exhibit-6 cannot be taken into consideration to presume that there
was mortgage by deposit of title deed. Once mortgage is not established,
applicability of Article 62 of the limitation Act also would be out of question.
Exhbit-24 is also beyond pleading and so this cannot be taken into consideration
for the purpose of deciding mutual transaction between the parties. Having so
noticed, the findings of the learned trial court that the suit of the plaintiff is
barred by limitation cannot be interfered with . The finding in respect of issue
no. 3 is accordingly upheld.
11. Coming to the merit of the case, plaintiff has not produced duly certified
copy of the books of accounts as is required under Section 4 of the Banker Books
of Evidence Act, 1891. Some uncertified copies were placed on record and the
same has been marked as Exhibit-26. Merely marking of a document as exhibit
would not elevate its status to that of evidence unless the same is produced in
accordance with law. The suit was instituted in the year 1999 and 16 years have
elapsed thereafter. So there is no question of applying the principle of Section 30
of the Code of Civil Procedure at this stage for giving an opportunity to the bank
for making amend for the mistake committed in course of trial. This would 
amount to injustice to the defendants and so the findings of the learned trial
court that exhibit-26 is not admissible in evidence also cannot be interfered with.
This being the position, the basic claim of the plaintiff has remained
unestablished. The appeal does not deserve to be allowed.
12. Considering the entirety of circumstance, the first appeal stands dismissed.
13. No order as to cost. Send down the records immediately after framing of
decree.

JUDGE

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