Decided on March 31,1960



Lahiri, C.J. - (1.) This appeal is directed against an order of P. B. Mukharji, J. dated August 6, 1956 by which his Lordship has settled a list of debtors of the respondent Bank under Section 46-M read with Section 46-D of the Banking Companies Act. By this order the appellant has been directed to pay a sum of Rs. 23,671-12-7 to the respondent bank. The bank claimed the amount as being due from the appellant upon an overdraft account. On behalf of the bank the statement of account certified by the Manager was proved. That statement of account showed that a sum of Rs. 30,587-6-0 was due by the appellant to the bank. The matter was directed to be set down for trial on evidence by the learned trial Judge and in support of the claim made by the bank a witness named Jogesh Chandra Pal who was an Accountant of the bank at the relevant time and who was acting as an officer of the bank under the scheme of arrangement was examined. The appellant did not, however, choose to examine either himself or any other witness in support of his case.
(2.) The principal defence of the appellant in the trial Court was to the effect that he was not given credit for certain goods which he had hypothecated with the bank. On this point the evidence of Jogesh Chandra Pal is to the effect that the appellant took away the hypothecated goods, sold them and deposited the sale proceeds amounting to Rs. 3,664-9-9 for which due credit was given by the bank. As a matter of fact, in the statement of accounts this sum has been shown as credited to the appellant. The learned Advocate appearing in support of the appeal has argued before us that on this point there is a discrepancy between pleading and proof. It is pointed out that in the affidavit of Jogesh Chandra Pal affirmed on May 30, 1956, he states that the goods hypothecated by the appellant were sold from time to time by the debtors themselves and the proceeds were duly credited to the accounts. This statement shows that Jogesh Chandra Pal states in his affidavit that there was a plurality of sales whereas in his evidence in answer to question 7 he says that the appellant paid the amount by a cheque and took delivery of the goods which were in the custody of the bank. It is significant, however, that the witness was not confronted in the witness box by the statement he made in his affidavit. The point would have been of some importance if the appellant had examined himself and had pledged his Oath on the question whether he had or had not taken the hypothecated goods from the bank and sold them himself. In the absence of any evidence by the appellant on that point, no importance can be attached to this discrepancy between the pleading and the proof of the case made by the bank. The first point urged in support of the appeal, therefore, cannot be sustained.
(3.) The second point raised in support of the appeal is that the bank has failed to produce before the Court the Register of Goods. The learned Advocate for the appellant points out that though in the affidavit of Jogesh Chandra Pal it is alleged that the bank maintains no Register of Goods, he admits in his evidence that the bank has a Register of Goods. Jogesh Chandra Pal, however, states in his evidence in answer to Question 27 that the statement made by him in his affidavit was due to a misconception, because the bank was at that time not functioning and all the books and registers of the hank were lying in a heap and at that time he had some doubts as to whether the bank would be able to find out the books. This objection also is, in the circumstances of this case, an extremely technical one. It has been rightly pointed out by the learned trial Judge that if the appellant was serious about an inspection of the Register of Goods main-tained by the bank, he could have asked for discovery and inspection. But, in point of fact, he did not ask for either of these two things in the course of the trial. If the production of the Register of Goods was sought for to prove that the appellant had not really taken away the hypothecated goods, he should have examined himself in the case and stated on oath that the goods were still lying in the custody of the bank and in the absence of any such evidence, the mere non-production of the Register of Goods or the discrepancy between the affidavit of Jogesh Chandra Pal and his evidence in Court is not of any assistance to the appellant. The second point raised by the learned Advocate for the appellant must also fail.;

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