P.G. Agarwal, J.
1. Heard Mr. M.U. Mahmud, learned counsel for the appellant and Mr. B.M. Sarma, learned counsel for the respondent.
2. The respondent Pragjyotish Gaolia Bank instituted a Money Suit No. 12/91 against the appellant and others sitting inter alia that the appellant/defendant Abdul Jalil Talukdar had taken a loan of Rs. 9,970 from the plaintiff bank and the money was released to him but the defendant had failed to repay the same. The suit proceeded ex parte and it was decreed by the trail court whereupon the appellant preferred an appeal being Money Appeal No. 2/95 and vide the impugned judgment, the learned District Judge, Barpeta affirmed the judgment and decree of the trial court and dismissed the appeal and the hence the second appeal.
3. The substantial question of law formulated in this case reads as follows :-
1. Whether the courts below could have passed the ex parte decree in favour of the plaintiff bank when the plaintiff bank did not produce material documents such as promissory note, loan agreement, letter of guarantee to prove that the defendant had taken the loan from the bank.
4. Before coming to the substantial question of law the learned counsel for the appellant admitted that the suit was decreed ex parte and as such it may be remanded back, giving opportunity to the appellant to file written statement as the appellant is ready with his written statement. The circumstances under which the suit proceeded ex parte are given in para 6 of the appellate court's judgment, which reads as follows :
'The suit was filed by the bank on 11.4.1991. After repeated summons only defendant No. 1 appeared on 10.1.1995. Thereafter the defendant took adjournment for filing w.s. on 16.2.1995 and on 9.3.1995. Thereafter the defendant defaulted on 23.3.1995 and the case proceeded ex parte. Thereafter the defendant again appeared on 19.4.1995 and prayed from vacating the order of ex parte hearing which was allowed by the trial court at an adjournment cost of Rs. 50. Granting adjournment the defendant was given a last chance to submit his written statement on the next date. However, instead of filing the written statement on 19.5.1995 the defendant again came up with an adjournment petition, which was rejected, by the court. On 19.6.1995 when the case was posted for ex parte hearing the defendant again filed a petition seeking time to file written statement. This petition was also rejected and plaintiff evidence was recorded ex parte and the decree was passed on 20.6.1995.'
5. We have perused the order sheet and find that the suit was filed on 11.4.1991 and the appellant/defendant managed to avoid service of summons on him for long three years and ultimately summons were published in the newspaper and service was completed and the defendant made appearance on 10.1.1995. He was given sufficient opportunity and time to file written statement but he continued to delay the matter and hence the suit proceeded ex parte. In view of the reason given by the trial court, we find no case for remanding the matter back.
6. Now coming to the substantial question of law, there is no dispute at the Bar that the loan agreement, promissory note and the letter of guarantee were not produced before the trial court. The case of the plaintiff bank is that there was an incident of theft in the bank in the year 1992 and these documents were stolen along with other properties of the bank.
7. Mr. Mahmud, learned counsel for the appellant has submitted that the bank did not file any FIR and also did not take any steps against the concerned employees.
8. We have perused the evidence adduced by the plaintiff wherein it has been stated that in respect of the above incident of theft, an FIR was lodged by the bank and the matter was investigated by the police and subsequently police submitted the final report. The bank has however, filed a Narazi case and the matter is still pending. In view of the above it cannot be said that there was no incident of theft in the bank and that no FIR was lodged. So far taking steps against the employees is concerned, it is not relevant for disposal of the present suit.
9. Now, coming to the question whether a decree can be passed in absence of the loan agreement, promissory note and letter of guarantee, we find that with the letter of guarantee the appellant before us is in no way concerned. The bank on the other hand has produced the loan application filed by the appellant/defendant and the cash debit vouchers whereby the defendant received the amount and the special power of attorney executed by the appellant/defendant in favour of the bank were also produced. The bank also produced the certified copy of ledger abstract copy (Ext. 1 to Ext. 8). All these documents were produced by the bank before the trial court to obtain the decree. The signature of the appellant/defendant on these documents have also been proved as required under law. The cash debit vouchers shows the receipt of amount by the appellant/defendant on five different occasions. Ext. 2 to 5 are the cash debit vouchers where the signatures of the defendant appears on the revenue stamp Ext. 7 is the special power of attorney. It was registered before the Sub-Registrar in favour of the bank by the appellant and the document was registered under the Registration Act. It was for the appellant to establish his case. In the instant case the oral evidence coupled with the documentary evidence on record, the loan application which contains the photograph of the appellant, the cash debit vouchers, the power of attorney and the statement of accounts clearly shows that the amount was taken by the appellant/defendant. The exclusion of the loan agreement or the promissory note cannot be the ground to deny relief. Further the bank has come up with an explanation for the missing of these documents. There is no rule of law that particular set of documents should be examined to obtain the decree in respect of non-repayment of loan. The documents produced by the bank and the evidence laid by them was found sufficient and hence we answer the substantial question of law raised by the appellant against the appellant/defendant.
10. In the result, we find no merit in this second appeal. Accordingly this second appeal is dismissed with cost.