The main legal point established in the judgment is the admissibility of electronic evidence and the relaxation of procedural requirements under Section 65B of the Evidence Act in the interest of justice.

Prathiba M. Singh, J.

CM APPL. 3036/2017 (delay)

1. Delay is condoned subject to costs of Rs.5,000/- to be deposited with the Delhi High Court Legal Services Committee. CM is disposed of.

RFA 90/2017

2. The present appeal arises out of the impugned judgment and order dated 9th May, 2016 by which the suit filed by HDFC Bank - Appellant/Plaintiff (hereinafter, 'Plaintiff') against the Defendants/Respondents (hereinafter, 'Defendants') was dismissed on the ground that the provisions of Section 65B of the Indian Evidence Act, 1872 (hereinafter, ‘Evidence Act') were not complied with.

3. Briefly stated - a suit for recovery was filed seeking recovery of a sum of Rs.8,26,397/- against the Defendant Nos.1 & 2. Defendant No.1 was borrower and Defendant No.2 was co-borrower. Defendant No.1 had applied for a loan of Rs.15 Lakhs. He entered into a loan agreement/credit facility application form with the Bank. The original loan agreement is exhibited as Ex.PW-1/2 on record. The Bank had disbursed a loan of Rs.15 Lakhs to the Defendants in terms of the loan agreement no.11216814 dated 1st March, 2007. The Defendants had to repay the loan in equal monthly instalments out of which some instalments were in fact paid by the Defendants. There were, however, unpaid outstanding instalments because of which loan recall notice was issued on 21st May, 2010. Despite issuance of the loan recall notice, the Defendants did not make payment of the outstanding amount leading to the filing of the suit.

4. The suit was initially filed under Section XXXVII of CPC which was converted to an ordinary suit by the Trial Court. Initially the order sheets of the Trial Court reveal that the Defendants were not served despite repeated attempts. Since the Defendants could not be served, steps for publication were taken and notice was published in the newspapers “Veer Arjun and Statesman” dated 20th January, 2012. Despite service through publication, none appeared for the Defendants. Vide order dated 10th March, 2015 the Defendants were proceeded ex-parte. Plaintiff/Bank led evidence of Mr. Gopal Ranga, Authorized Representative as PW-1 who filed the affidavit by way of evidence as also the certificate under Section 65B of the Evidence Act. PW-1 exhibited the following documents.

(a) Power of attorney in his favour - Ex.PW-1/1;

(b) Original loan agreement duly signed by the borrower and co-borrower - Ex.PW-1/2

(c) Schedule of payment signed by the borrower and co-borrower along with the promissory note - Ex.PW-1/3;

(d) Office copy of the loan recall notice issued by the learned counsel for Plaintiff Bank along with the original speed post receipt - Ex.PW-1/4 & Ex.PW-1/5;

(e) Certificate issued by the HDFC bank along with the statement of account duly certified under The Bankers’ Books Evidence Act, 1891 (hereinafter, 'Bankers' Books Evidence Act') - Ex.PW-1/6;

(f) Certificate under Section 65B of the Evidence Act signed by Mr. Gopal Ranga, the Authorized Representative - Ex.PW-1/7

The Trial court, after perusing the documents on record and the evidence, dismissed the suit of recovery filed by the Plaintiff.

5. In appeal also, none appears for the Respondent/Defendant. Accordingly, the Respondent/Defendant is proceeded ex-parte. A perusal of the documents above shows that the loan documents have been filed in original by the Bank. There is no challenge as to the signatures of the Defendants inasmuch as there is no appearance of the Defendants. The fact that the loan documents were not signed in front of the representative who deposed in the Court, does not take away the genuinity and validity of the loan documents. Statement of account certified under the Bankers’ Books Evidence Act shows that various instalments towards repayment of the loan have in fact been received by the Bank. Thus, the fundamental fact that the Defendants took the loan and repaid some part of the loan, is admitted. This being the position, the statement of account which is certified under the Bankers’