- (1.) THE plaintiff-Bank is the appellant. The suit for recovery of money due in respect of the facilities granted by the Bank in Original Suit No. 332 of 1980, was dismissed by the III Additional Munsiff, Belgaum and such dismissal was confirmed by the Appellate Court in Regular Appeal no. 81 of 1983 on the file of the Prl. Civil Judge, Belgaum on 8-9-1986. Hence, the plaintiff is before this Court.
(2.) IT is rather strange but not surprising that in an ex parte proceeding both the Courts below have concurrently thought they can dismiss the suit of the plaintiff-Bank. It is equally unfortunate that the Courts were not aware either the Banking Regulations Act or principles of banking. Under the principles of Banking, the suit filed on an account has to be taken as the basis for any claim. In fact, Sections 3 and 4 of the bankers' Books Evidence Act, 1891 is clear that the statements given by the Bank certified to be true under Section 2 of the Bankers' Books evidence Act shall be taken as the correct statement of account and a suit lie on the basis of that must be decreed. It is necessary to quote section 4 of the Bankers' Books Evidence Act, which reads thus: "4. Mode of proof of entries in bankers' books. Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise".
(3.) ANOTHER point the Courts below have not considered is that the claim of the Bank is not based on promissory note and the promissory notes are taken only to indicate the limits granted to the customers and it is only a security. The Courts below analysed the writings of the promissory note and held that there is a difference of names, instead of vasantlala Kevaldas Shah it is Vasant Keshavmal Shah. The defendant is known as Vasanthmal K. Shah, as could be seen from the acknowledgement filed before this Court. It is also seen that notice was sent prior to filing of the suit to Vasant Keshavmal Shah. Despite acknowledging, the defendant has failed to appear. It is seen that the certified copy of the account contained the name of Vasanthlal Keshavmal Shah. The signature which is found on the promissory note as well as on the other documents, which is said to be the defendant, have not been disputed. Simply because the name in the promissory note shows Vasantlal kevaldas Shah (it is not clear that in long handwriting as to what is wrong), in the running handwriting we cannot make a distinction and find out exactly the spelling used would depict the real name of the defendant. In any event, the Courts below embarked upon the exercise which is not called for especially when the defendant has not chosen to appear before the Trial Court. It is worthwhile to note that though the defendant did not appear before the Trial Court, he appeared before the appellate Court though Counsel. From the records, it is not seen as to whether the contention raised by the Courts on behalf of the defendant were really argued before the First Appellate Court by the Counsel appearing for the respondent/defendant. A perusal of the judgments of the Courts below clearly indicate that the judgments of both the Courts below are perverse and against the settled principle of law and also the provisions of the Bankers' Books Evidence Act. This is one case where this Court must interfere.;