Judgement

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 amou