The judgment established that the suit was within limitation, the statement of account was certified, and service by publication was sufficient. It also clarified the distinction between the liability of a company and its directors or shareholders.

VALMIKI J. MEHTA, J

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff/bank impugning the Judgment of the Trial Court dated 19.10.2016 by which the trial court has dismissed the suit filed by the appellant/plaintiff for recovery of Rs. 5,04,843.65/- alongwith interest.

2. At the outset, it may be noted that there were three defendants in the suit, and they were proceeded exparte, and therefore, there is neither any pleading nor any evidence led by the defendants.

3. The facts of the case are that the appellant/plaintiff granted a loan to the respondent no.2/defendant no.2, who was carrying on the business in the name of his proprietorship firm. The respondent no. 2/defendant no. 2 was granted an 'Express Business Loan' of Rs. 15,01,000/- and for this purpose the respondent no.2/defendant no. 2 executed the necessary documents being the Agreement dated 08.08.2011, Demand Promissory Note and Demand Promissory Note Delivery Letter both dated 08.08.2011 etc. The sole proprietorship concern of the respondent no. 2/defendant no. 2 became a Private Limited Company and this company was sued as the defendant no.1 in the suit inasmuch as the respondent no.1/defendant no.1/company vide its Resolution dated 15.11.2013 took over the loan granted to the respondent no. 2/defendant no.2.

4. The appellant/plaintiff led evidence and proved its case and documents, as stated in para 4 of the impugned judgment, and this para 4 reads as under:-

“(4) In order to discharge the onus, the plaintiff bank examined Sh. R. Sathyanarayanan, Branch Manager as PW1 who in his examination-in-chief by way of affidavit Ex.PW1/A corroborated what has been earlier stated in the plaint in toto. He has relied upon the documents i.e. the copy of board of Resolution in favour of Sh. R. Sathyanarayanan, Branch Manager dated 27.09.2012 which is Ex.PW1/1 (mentioned as Ex.PW1/A in the affidavit); Express Business Loan Application Form dated 20.07.2011 which is Ex.PW1/2 (colly., running into four pages) (mentioned as Ex.PW1/B in the affidavit); copy of Master Credit Agreement dated 08.08.2011 which is Ex.PW1/3 (colly, running into 34 pages) (mentioned as Ex.PW1/C in the affidavit); copy of Demand Promissory Note and Demand Promissory note Delivery Letter dated 08.08.2011 executed by defendant no.2 in favour of plaintiff bank which is Ex.PW1/4 (colly, two pages) (mentioned as Ex.PW1/D(colly.) in the affidavit); copy of cheque submission form executed by defendant no.2 in favour of plaintiff bank which is Ex.PW1/5 (mentioned as Ex.PW1/E in the affidavit); copy of Memorandum & Articles of Association of Defendant no.1 and Board Resolution dated 15.11.2013 which is Ex.PW1/6 (Colly, running into 11 pages) (mentioned as Ex.PW1/F (colly.) in the affidavit); copy of recall notice dated 31.07.2014 along with postal receipts is Ex.PW1/7 (mentioned as Ex.PW1/G (colly.) in the affidavit); certificate under Section 2(a) of Banker’s Book Evidence, certified copy of statement of accounts, Simulation Report and repayment schedule which is Ex.PW1/8 (colly, running into 11 pages) (mentioned as Ex.PW1/H (colly) in the affidavit). The entire testimony of the witness has gone unrebutted and uncontroverted and the defendant did not appear.”

5. The trial court, in my opinion, has wrongly dismissed the suit by giving three reasons, firstly, by holding that the suit is time barred, secondly, holding that the statement of account filed by the appellant/plaintiff is not certified under the Bankers’ Books Evidence Act, 1891, and thirdly that the address of the defendants as shown in the plaint are not the correct addresses of the respondents/defendants who had shifted from the addresses as found in terms of the record of the legal notices sent by the appellant/plaintiff.

6. In my opinion, the trial court has completely erred in dismissing the suit. The suit is very much within limitation because the loan was granted on 08.08.2011. The