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1994 Supreme(HP) 187
High Court Of Himachal Pradesh
A.L.VAIDYA
UNITED COMMERCIAL BANK - Appellant
Versus
DURGA DASS - Respondent
Civil Suit No. 56 of 1987
Decided On : 11/28/1994
For the plaintiff(s) Sushil Kukreja vice R.L Sood, Advocate. For the respondent(s): M/s. Rakesh Kanwar and Yoginder Paul for defendant No. 2.
The suit for recovery of debt was dismissed on the ground of limitation as the crucial documents were not legally proved.
Headnote:
Indian Contract Act - The defendant raised an objection that the memorandum of agreement was vague and a tampered document. The court held that the agreement was not hit by the provisions of the Indian Contract Act. Bankers Book Evidence Act - The plaintiff filed a statement of accounts certified under the Bankers Book Evidence Act. The court considered the statement of accounts to determine the amount due from the defendants. Evidence Act - The court analyzed the provisions of the Evidence Act regarding the legal proof of private documents. The court held that the balance confirmation letters, being private documents, needed to be proved by primary evidence, i.e., the person who scribed or executed the documents. Since these documents were not legally proved, they could not be considered as evidence in support of the plaintiff's claim.
Fact of the Case:
The plaintiff-bank filed a suit for recovery of a truck loan against the defendants. The defendants failed to adhere to the repayment schedule and the plaintiff-bank sent a legal demand notice. The plaintiff-bank claimed a total amount of Rs. 2,56,486.35, including interest. Defendant No.1 was proceeded ex-parte while defendant No.2 contested the suit and raised various objections. The court framed several issues and after trial, dismissed the suit on the ground of limitation.
Finding of the Court:
The court analyzed the evidence and held that the suit was barred by limitation. The balance confirmation letters, which were crucial to establish the acknowledgment of the debt, were not legally proved. Without these documents, there was no legal evidence to bring the suit within the period of limitation. The court also rejected the other objections raised by defendant No.2.
Ratio Decidendi: The suit for recovery of debt was dismissed on the ground of limitation as the crucial documents were not legally proved.
Result: The suit was dismissed and the parties were left to bear their own costs.
A.L Vaidya, J.- The present suit for recovery of Rs 2,56,486 35 (Rupees two lacs fifty six thousand four hundred eighty six and paisa 35 only) has been filed by the plaintiff-bank against the present defendants. The case put up by the plaintiff has been that defendant No.1 applied to the plaintiff bank at its Dhundhan Branch for the grant of a truck loan in order to augment his business of transporter. Defendant No.2, at the behest and instance of defendant No.1, voluntarily came forward and joined defendant No. 1 and agreed to stand guarantee in favour of the bank qua the loan to be sanctioned in favour of defendant No. 1. It was further pleaded that on the strength of the guarantee executed by defendant No. 2 and also on representation of defendant No. 1 the plaintiff-Bank sanctioned a truck loan facility of Rs. 1,40,000 in favour of defendant No. 1 and, as such, defendants No.1 and 2 executed a duly stamped memorandum of agreement dated 5th January, 1981 in favour of the plaintiff bank evidencing the aforesaid loan sanctioned in favour of defendant No. 1 which was duly availed of by defendant No.1. According to the plaintiff, in the said memorandum of agreement, the defendants agreed to repay the truck loan of Rs. 1,40,000 to the plaintiff-bank in equal monthly instalments, that is, in thirty equal monthly instalments alongwith interest at the rate of 12-1/2 per cent per annum with quarterly rests for value received. The first such instalment was to commence from the month of February 1981 and each subsequent instalment was to be paid by the defendants on or before 1st of each and every succeeding calendar month. At that very time defendant No. 1 also executed agreement relating to term loan dated 5th January, 1982.
2. The plaintiffs further case has been that the above referred truck loan was utilized by defendant No 1 for the purchase of truck bearing Engine No. 692 Dol 031618, chassis No. 34407 30 29840 Make and Model TDV 1978, which was given registration No. HPA 875 It was further pleaded that the defendants failed to adhere to the repayment schedule and continued to violate the financial discipline of the Bank and in this behalf the defendants were several times called upon by the plaintiff-bank to liquidate their liability but to no avail. The plaintiff-bank finally se? t a legal demand notice to the defendants on 18th September, 1984 but to no avail It was also averred that as per the statement of accounts filed with the plaint, duly certified under the Bankers Book Evidence Act, a sum of Rs. 1,88,806 was due from the defendants to the plaintiff-bank inclusive of interest upto 31-12-1984 The plaintiff further alleged that the defendants were liable to pay interest from 1-1-1985 to 20-6 1987 which amount of interest comes to Rs 67,680 35 and hence the present suit for recovery of Rs. 2,56,486.35,
3. The plaintiff-bank also pleaded that defendant No. 1 called on it on 23-10-1982 and executed a duly stamped balance confirmation and admitted and acknowledged that a sum of Rs 1,38,424.83 was due which amount was inclusive of interest upto 27-6-1982. According to the plaintiff-bank, similarly the first defendant again called on the plaintiff-bank on 23-6-1984 and admitted and acknowledged that a sum of Rs. 1,65,120.34 was due to the plaintiff-bank inclusive of interest upto December 1983. The said balance confirmation letters have been filed with the plaint.
4. It has also been averred in the plaint that the plaintiff has been a body corporate duly constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and one Mr M.C. Chhajeria was the Manager of the Dhundhun Branch of the Bank who was the principal officer of that branch and Mr. D.R. Thakur was an officer of the United Commercial Bank. It was also pleaded that Mr. M.C. Chhajer was duly competent to institute and file the present suit, engage the services of counsel etc., being duly constituted attorneys of the plaintiff-bank.
5.
