Decided on January 13,2005



P.K.Deb, - (1.) ON the basis of open, current and mutual account, the appellant-Bank filed a suit No. 172/95 on 13th February, 1995 before the Court of Civil Judge, Ghaziabad (U.P.) for recovery of Rs. 43,83,2737- together with pendente lite and a future interest @ 24.70/% per annum with quarterly rest and cost and it was further prayed that if the amounts are not being paid by the defendant-borrowers, the hypothecated goods and mortgaged property be sold. ONe Shri B.B. Talpatra was the proprietor of Talpatra Enterprises and he was enjoying various credit facilities from the appellant-Bank in the form of temporary overdraft and term loan taking credit, etc. He executed D.P. Note for Rs. 9.00 lacs on 14th June, 1979 and also executed several other documents as per Banking Rules for the purpose of securing the same loan and also executed revival documents on; sveral dates, last one being on 3rd July, 1992. The loan limit was increased to Rs. 11.00 lacs and further credit limit was also given to the extent of Rs. 5.00 lacs and in total the amount of loan went up to Rs. 20 lacs. Besides hypothecating the goods, there was also equitable mortgage created by deposit of title deeds in respect of two immovable properties; one situated at Ghaziabad while the other at Calcutta. The loan account of Mr. Talpatra became sticky and for liquidating the loan amount with permission of the Bank, the Calcutta property was sold but then also the loan amount could not be liquidated and amount of Rs. 43,83,2737- remained due for which legal notice was sent, but then it could be found that Mr. Talpatra had already died and then the suit was filed against the present respondents who happened to be the legal heirs of late Shri B.B. Talpatra. ON summons being served, the defendant-respondents appeared and filed their written statement. They did not deny regarding taking of loan, etc. but their main contention was that they could not be held liable for the loans taken by the predecessors as no property, nothing of the sort had come to their hands as legal heirs from late Shri Talpatra. While the suit was proceeding, the Tribunal was set up as per RDDBFI Act, 1993 and ultimately when jurisdiction of U.P. came to DRT, Allahabad, the same was transferred to the DRT, Allahabad for disposal. It should be further mentioned here that during the last stage of adjudication of T.A. No. 1063 of 2000 (re-numbered after the suit was transferred to the Tribunal), a Tribunal was set up at Lucknow having jurisdiction of Ghaziabad, but such notification being stayed by the Hon'ble High Court of Allahabad, the Original Application was adjudicated and finally disposed of by the impugned order by the then Presiding Officer Mr. A.S. Choudhary of D.R.T., Allahabad. In the impugned judgment, it has been held by the learned Tribunal that although specific denial was not there by the defendants in respect of the loan and the accounts submitted regarding the loan accounts by the appellant Bank, but such documents and accounts of the loan had not been proved by adducing evidence from the side of the appellant-Bank and hence claim has been dismissed as a whole. Hence the present appeal.
(2.) Only point in this appeal is as to whether the Presiding Officer, DRT, Allahabad had committed error in dismissing the whole claim of the appellant-Bank for non-producing of evidence, when the loans taken and accounts submitted from the side of the Bank had not been denied from the side of the defendant-respondents. Learned Counsel for the Bank has urged in support of the appeal that when the case of the appellant-Bank regarding taking of loan by the predecessor of the defendant-respondents had not been denied nor was there any specific denial regarding the accounts being maintained by the Bank, the copy of which have been submitted along with the plaint itself before the issues were framed, then the claim of the Bank for the purpose of recovery should be construed to be admitted and as such even if no evidence has been adduced, the Presiding Officer had no other alternative but to decree the recovery claim and there was no scope for dismissing the claim. In support of his contention, he has referred the provisions of Section 58 of the Evidence Act read with Order 13 of the CPC His further submission is that the impugned judgment is a nullity in the eye of law, when there was already a notification regarding setting up of a Tribunal at Lucknow. Learned Counsel appearing for and on behalf of the respondent has controverted the submissions of the learned Counsel for the appellant as mentioned above, stating that the duty is cast upon the plaintiff to prove his case to the satisfaction of the Court, even if there was no specific denial regarding the maintaining of the proper accounts as contemplated under Section 34 of the CPC read with Banker's Books Evidence Act, 1891. He has also referred to the denial regarding the plaint case as made in the written statement in support of his contention. On the basis of the submission made by the learned Counsel for both the parties, I have perused the records of the Tribunal below and also the materials thereon.
(3.) SECTION 58 of the Evidence Act runs as follows: 58. Facts admitted need not be proved�No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which; before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.;

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