Das Gupta, C.J. - (1.) The appellant, opened an overdraft account with the plaintiff bank, the Pioneer Bank Ltd., which is now in liquidation, at its Benaras branch on 19-8-1947. Prior to this he had already a current account with the bank. Before the overdraft account was opened the plaintiff bank had received from the appellant's father-in-law, Sibakali Sarkar, a letter by which the latter requested the bank to make an overdraft arrangement "unto the limit of Rs. 5,000/- (Rupees five thousand) only" with this appellant. In this letter Sibakali Sarkar further said, "I hereby allow you lien up to the said amount of Rs. 5,000/- (Rs. Five thousand) only on my fixed deposit of Rs. 5,5,00/- with you (under your F/D Receipt No. B/286). Yon shall be entitled to adjust the said overdraft allowed to Mr. Moni Bhusan Mallick in his said O/D A/c with you upto the said limit of Rs. 5,000 from my said fixed deposit amount with you." The bank stopped payment sometime in October 1948. Before that date the debit balance in his account, as a result of drawings on the basis of overdraft arrangement, stood on 26th of July at Rs. 5116-8-1P. There were no drawings by the appellant thereafter but after credit of Rs. 220/- on account of interest on Sibakali's fixed deposit account and debit of interest on the debit balance, the debit balance, on 15-1-1952 stood at Rs. 5796-0-9P. The bank brought this suit through the Liquidator for recovery of this sum of Rs. 5796-0-9. The main defence taken by the defendant was that the defendant is entitled to set off against the amount due from the plaintiff bank on account of the fixed deposit standing in the name of Sibakali Sarkar. It was alleged that Sibakali Sarkar had, in fact, duly endorsed & discharged the fixed deposit receipt in favour of the plaintiff bank and authorised the plaintiff to treat the said fixed deposit as part of the said overdraft account & specifically instructed the plaintiff to appropriate against the dues of the defendant the proceeds under the said fixed deposit as soon as the same matures. It was said that the fixed deposit having matured on 11-8-1948, the plaintiff had wrongfully failed and neglected to adjust the dues of the defendant out of the amount payable under the said fixed deposit. In paragraph 3(b) of the written statement the defendant further stated "on or about August 1946 at the request of Sri S.K. Sarkar, the father-in-law of the defendant and the defendant, the plaintiff through S. K. Mukherjee, agent of the Benares Branch of the plaintiff agreed to allow the defendant overdraft facilities in his said Account on inter alia the following terms and conditions: (i) That the said Sri S.K. Sarkar, would stand as a Surety for the repayment of the dues of the defendant in the said account. (ii) That the said Sri S.K. Sarkar would deposit with the plaintiff Rs. 5,500 in fixed deposit of 4 per cent. per annum and that he would duly endorse and discharge in favour of the plaintiff the said Fixed Deposit receipt authorising the plaintiff to adjust against the dues of the defendant the amount that would be payable under the said Fixed Deposit as soon as the same matures and that the said Fixed Deposit would form a part of the said Overdraft Account until the dues of the plaintiff are fully paid." The following issues were raised in the trial Court: 1. Was there any arrangement as alleged in paragraph 3(b) of the written statement? 2. Was there any deposit endorsement, discharge and authorisation as alleged in paragraph 4 of the written statement? 3. Is the defendant entitled to credit in his account of the sum of Rs. 5,500 mentioned in the written statement or any other sum out of that sum of Rs. 5,500? 4. To what relief, if any? The learned Judge held on the evidence that while it was established that it was a part of the arrangement between the plaintiff and the defendant that Sibakali Sarkar shall endorse and discharge in favour of the plaintiff the fixed deposit receipt, it was not proved that it was a term of the agreement that the fixed deposit would form a part of the overdraft account until the dues of the plaintiff are fully paid off, and that it was not proved that the plaintiff treated the fixed deposit as part of the overdraft account. As regards issue No. 2 the learned Judge held that Sibakali Sarkar did not endorse and discharge the fixed deposit receipt nor gave any authorisation or instruction except the instructions contained in the letter dated 19-8-1947. As regards issue No. 3 the learned Judge held that the defendant was not entitled to a set-off.
(2.) Accordingly he gave a decree for the amount claimed and interest on decree but made no order for interim interest. He made an order also that each party will bear his own costs.
(3.) It is against this judgment that this appeal has been preferred.;