L. T. B. Dehideniya, J.

This is an appeal from a judgment of the Commercial High Court. The Plaintiff-Appellant (hereinafter sometimes called and referred as the Appellant) instituted action in the Commercial High Court to recover a loan granted by the Appellant’s predecessor the Pramuka Saving and Development Bank to the 1^st Defendant- Respondent (hereinafter sometimes called and referred as the 1^st Respondent). The 2^nd Defendant- Respondent (hereinafter sometimes called and referred as the 2^st Respondent) was the guarantor. The Respondents filled answer denying liability and raised several objections, namely, that the Cause of Action is prescribed, there is no privity of contract and the Appellant has no locus standi.

The Appellant has called two witnesses to prove his case. The documents marked P1 to P16 were marked and produced through the said witnesses subject to proof. The Respondents at the close of the Appellant’s case objected to all the documents other than P1 and P3 and requested proof of other documents. After cross examining these two witnesses, the Respondent decided not to call any evidence on their behalf.

The Appellant’s case is that the 1^st Respondent has obtained a loan from the Appellant’s predecessor Pramuka Saving and Development Bank and failed to repay the loan. The Appellant tendered the documents in relation to this loan transaction. Documents marked P4, P5, P6 and P7 are the agreements and the offer letters. The document marked P8 is a certified copy of the relevant entries maintained in the computer of the Pramuka Savings and Development Bank as customer loan account transactions. It has been certified by the Acting General Manager as a true copy of the relevant entries appearing in the books/data of Pramuka Savings and Development Bank and the said entries were made in usual, ordinary course of business. P10 is the letter of demand, P12 and P13 are the 2^nd Respondent’s undertaking to indemnify the bank. The Appellant did not call any witness to prove the said documents.

The Counsel for the Appellant in his submissions has taken up two arguments; firstly that the Respondents have not denied these documents in their answer and secondly that the agreements were signed by the Respondents and the certified copies of the bankers’ book need not to be proved under Section 90 (C) of the Evidence Ordinance.

The learned High Court Judge after trial dismissed the Appellant’s action on the basis that the Appellant had failed to prove the fact that the Respondents are in arrears of payment.

The learned High Court Judge in his judgment held that the Appellant, though he marked the documents subject to proof, has failed to prove the documents. In his judgment he has considered the agreements signed by the Appellant and the Respondents. The High Court Judge has observed that the 1^st Respondent has entered in to an agreement and obtained the said loan, but was of the view that the date of granting the loan is not established. The learned High Court Judge has come to the said finding based on the loan agreement and other documents in relation to the said loan. Therefore, even though the Judge was of the view that those documents are not proved, he considered the documents and had come to that finding. Even if those documents are proved it is the only observation that the court can come to.

However I will consider whether the Respondents have admitted the averments in the plaint. At the commencement of the trial, parties have recorded only two admissions. Those are the 7^th paragraph of the plaint and the jurisdiction of the court. All the other matters were put in issue by the Appellant himself. These issues were not raised by the court but were raised by the parties with consent. After raising the said issues at the commencement of the trial, the Appellant cannot change his position in appeal and argue that the Respondents have admitted the facts.

On the other hand Respondents have admitted only paragraph 7 of the plaint. T