HASAN, J. - (1.) M/s. Corporation Bank instituted a civil suit for recovery of Rs. 72,058. 62 p. against the defendants. It had been pleaded in the plaint that upon request by the defendant Industry, the plaintiff-Bank accorded facility of over-draft in their favour; and that, after May 3, 1985, the defendants did not redeem the amount allowed to be drawn under the said facility of over-draft, and thereby till 31. 12. 1985, in all a sum of Rs. 67,918. 62p. was outstanding in the over-draft facility and it raised to Rs. 72,058. 62p. on the date of filing of the suit. The interest @ 19% p. a. has also been claimed over the due amount in the suit.
(2.) ADMITTEDLY, no written statement to the plaint has been filed on behalf of the defendants on one reason or the others till 20. 11. 1987. Pertinently to mention here that the trial Court ordered on 17. 9. 87 directing the defendants to submit their written statement by 17. 10. 1987 (next date fixed by it) failing which it would proceed under 0. 8 R. 10, C. P. C. However, on 17. 10. 87, on behalf of the defendants their counsel appeared and prayed for adjournment to file written statement which was opposed on behalf of the plaintiff but the trial Court allowed time to do so awarding costs at Rs. 200/- and the case was adjourned to 20. 11. 1987. On November 20, 1987, the trial Court proceeded under Order 8, R. 10, C. P. C. against defendant No. 1 Industry and then heard the plaintiff and under its judgment under challenge in this appeal, decreed the plaintiffs suit. Hence this appeal. Learned counsel for the defendant No. l appellant contended that merely by passing an order under 0. 8 Rule 10, C. P. C. the contents of the plaint, itself, cannot be deemed to have been proved, that too, without examining any witness or producing any document to support the averments of the plaint. In this regard, it has been pointed out that only a copy of statement of accounts has been produced but, according to the defendant No. 1, it has also not been proved or exhibited. So, Shri Garg urged that the trial court has passed the impugned decree in the absence of the evidence on record. Shri Garg also added that merely by submitting a copy of the statements of accounts maintained by the plaintiff Bank it cannot be taken that the entries shown in those statements are sufficient to fasten with liability upon the defendant. Nextly, the learned counsel for the defendant No. 1 urged that the learned trial court failed to take into consideration the provisions of Section 4 of the Banker's Book Evidence Act, and further that it misconstrued the provisions of 0. 8 Rule 10, C. P. C. and thereby it erred in holding that presumption could be drawn against the defendant of admitting the claim of the plaintiff in the absence of any written statement on their behalf. Reliance has been placed upon the decision in Chandradhar Goswami vs. Gauhati Bank Ltd. (1) and Ganpatlal vs. Jethmal (2)
(3.) LEARNED counsel for the respondent on the other hand contended that the trial court has rightly proceeded against the defendant No. l under Order 8, Rule 10, C. P. C. in as much as the decision of the Supreme Court referred to by Shri Garg is not applicable nor is any help to the appellant being distinguishable to the facts of the case at hand. In the decision of the Supreme Court, the defendant had filed written statement denying the liability and that being so, it had been held therein that the suit could not be decreed solely on the basis of the Bank accounts unless the same arc proved. Whereas, according to the plaintiff-respondent, in the case at hand, the defendant appeared before the trial court and sought adjournments to file the written statement, and despite opportunities having been afforded to the defendant, they failed to file their written statement and in these circumstances, the trial court had no option but to proceed further under 0. 8 R. 10, C. P. C. and then to pass decree in favour of the plaintiff drawing adverse inference for admitting the liability in question, against the defendant-appellant Industry. I have heard the learned counsel for the parties and perused the citations referred to by the parties. I may say that-facts and circumstances of the case at hand and that of the case cited by the learned counsel for the appellant are totally different. In Chandradhar vs. Gauhati Bank (supra), the written statement was filed and on the basis of the pleadings of the parties, seven issues were framed because several defences were raised and the suit was tried with full fledged procedure of law. In fact, it was a case of admissibility of the Entry in Bank's Books of account in evidence. The main question urged before the Supreme Court was whether there was no evidence besides the certified copy of the account to prove that a sum of Rs. 10,000/- was advanced to the appellants therein and, in view of S. 34 of the Evidence Act, whether the appellants could not be saddled with liability for that amount. In that case, the appellants did not accept the correctness of the books of account. Their Lordships of the Supreme Court after dealing with the question posed before them in the light of the facts and circumstances of the case, held as under : - "no person can be charged with liability merely on the basis of entries in books of account, even where such books of account are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. The original entries alone under S. 34 of the Evidence Act would not be sufficient to charge any person with liability and as such copies produced under S. 4 of the Banker's Books Evidence Act obviously can not charge any person with liability. " ;