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IN THE HIGH COURT OF DELHI
Pradeep Nandrajog, JJ.R. Midha, JJ.
J.K. Aggarwal - Appellant
Versus
Bank of India - Respondent
RFA 594 of 2007
Decided On : 11-11-2008
JUDGMENT
Pradeep Nandrajog, J.(Oral)
1. Heard learned counsel for the parties.
2. The appellant was undoubtedly a guarantor in respect of a loan advanced to defendant No.1 by respondent No.1 who was the plaintiff. In respect of the loan, defendants No.2 and 3 as also the appellant, impleaded as defendant No.4, stood guarantee for repayment.
3. The suit has been decreed in sum of Rs.7,84,415/- together with pendente lite and future interest @ 18.5% per annum from date of suit till realization.
4. We may note that the principal borrower i.e. defendant No.1 and co-defendants No.2 and 3 have not challenged the decree. Only the appellant is in appeal.
5. The statement of account on which the suit was based has been proved as Ex.P-13. The same reads as under:
| Date | Particulars | Debits | Cr. Or Dr. | Credits Balance |
| 10/12/97 | By Balance/Totals as per last statement Brought Forward (To loan disburse) | 25,00,000 | Dr. | 25,00,000 |
| 01/01/98 | To intt upto 31.12.1997 | 18,443.64 | ||
| 26/03/98 | To intt upto 26.03.1998 | 71,785.96 | ||
| 27/03/98 | By Transfer | 12,960 | ||
| 29/07/98 | To intt upto 31.07.1998 | 2,29,633 | ||
| 30/09/98 | To intt upto 24.09.1998 | 74,644 | ||
| 23/12/98 | By Transfer | 10,000 | ||
| 29/12/98 | To pay slip issued for search in ROC | 750 | ||
| 1/11/99 | By Transfer | 30,00,000 | Cr. | 1,14,873 |
| 8/11/99 | To Transfer (Valuation of Car) | 42,480 | ||
| 31/12/99 | To intt upto 10/11/98 Recovered | 71,279 | ||
| 31/03/2000 | By Transfer | 1114 | ||
| NIL | 301012960 | 301012960 | NIL | |
| 03/04/2000 | By Transfer | 301012960 | 301012960 | |
| NIL | 1114 | |||
| 29/09/2000 | To Transfer | 1114 | ||
| 03/10/2000 | By Transfer | 1114 | Cr. | 1114 |
| 301124360 | 301235760 | |||
| Certified that the above is true copy of the entry/entries contained in the ledger being one of the ordinary book of the Bank, that such entry/entries were made in the usual and ordinary course of the business of the Bank and that the said book/record is still in the custody of the Bank. | ||||
| STATEMENT OF UPDATED DUES CUM INTEREST CERTIFICATE | ||||
| 06/12/2000 | To Balance B/Forward from statement as per Bankers' Books Evidence Act 1981 | Cr. | 1114 | |
| To interest accrued from 01/01/99 to 05/12/2000 | 785529 | Dr. | 7,84,415 | |
6. Since Ex.P-13 has been certified under the Bankers' Book Evidence Act, the learned Trial Judge has held that entries reflected in Ex.P-13 have to be treated as correct.
7. Before analyzing Ex.P-13 viz-a-viz the challenge to the entries therein recorded, we would note at the outset that the appellant was denied the right to file a written statement and had no defence and thus was not permitted to lead any evidence. Thus, the fate of the appellant has to be decided limited to the question whether the plaintiff proved its case.
8. Needless to state a defendant who has not filed a written statement can always cross examine the witnesses of the plaintiff and can succeed if the defendant demolishes the credibility of the witnesses of the plaintiff or otherwise is able to demolish the case of the plaintiff.
9. The challenge by the appellant to Ex.P-13 was predicated by cross examining the sole witness of the bank, examined as PW-1, with respect to the debit entry in sum of Rs.42,480/- recorded on 8.11.1999 as also a debit entry in sum of Rs.7,84,415/- reflected in the statement of account on 6.12.2000 after closing the account by recording a transfer entry on 3.10.2000, recording a credit balance in sum of Rs.1,114.
10. The witness of the bank was cross examined on the two entries and the relevant extracts of the testimony are as under:
"I have seen the document Ex.P-13. As per the said statement the withdrawal was made only once at the time of disbursement of loan........ I have not prepared the statement of account Ex.P-13. I remained posted in the branch till June 1998, therefore, I cannot identify the name of the officer who has signed the Ex.P-13............. The bank has not placed any document or bill of the surveyor in respect of the expenditure of Rs.42,480/- on account of valuation of the car................ The loan ledger from which the debit entry of Rs.7,84,415/- has been made in Ex.P-13 has not been either produced today or the copy of the same are not on record.......... It
