Narendra Nath Tiwari, J.
1. This appeal is against the judgment and decree dated 13.1.1993 passed by learned Sub-ordinate Judge-I, Chaibasa in Money Suit No. 13/1984 whereby learned Court below has decreed the money suit filed by the plaintiff-appellant in part against the defendant No. 1 and ex parte against the defendant No. 2. the plaintiff is mainly aggrieved by the finding recorded on Issue No. 5 by learned Court below.
2. The plaintiff-Bank had filed a suit for recovery of Rs. 11,56,954.48 with interest against the defendants.
3. The plaintiffs case is that the defendant No. 1 is a Government contractor and was doing contract business at Chaibasa and other places, The defendant No. 1 approached the plaintiff-Bank on 3.3.1981 and requested for the facilities of term loan for Rs. 50, 000/- for purchasing (T.M.B.) Truck No. BRS 2705. The request of the defendant No. 1 was considered by the Bank and the term loan facility for Rs. 50,000/- was granted to him. The defendant No. 2 stood as a guarantor. An agreement was executed dated 3.3.1981 whereby the defendant No. 1 agreed for not creating any further charge over their properties and assets. The defendant No. 1 also agreed to pay interest @ 2% below the State Bank advance rate minimum 14% per annum with monthly rests in respect of the facilities of the said term loan. According to the terms of the agreement, the said vehicle was to be remained hypothecated to the plaintiff-Bank and to stand charge and constitute the Bank's security for the amount of the advance made by the plaintiff-Bank to the defendant No. 1. The defendant No. 1 had also agreed to pay the dues of the plaintiff-Bank along with the interest. But the defendant No. 1 defaulted in payment. As a result of which the huge sum became outstanding against the defendant No. 1. The defendant No. 1 had signed and executed a D.P. Note revival letter on 18.3.1983 and also a balance confirmation letter dated 27.3.1983 in respect of the said term loan account and he had acknowledged his indebtedness towards the plaintiff-Bank. The plaintiff-Bank has maintained books of accounts regularly, in respect of the aforesaid term loan of the defendant No. 1 and as per the said books of accounts, the total sum outstanding was Rs. 68,749.14. Interest thereon was also payable by the defendant No. 1 till 10.5.1984. Further case of the plaintiff is that the defendant No. 1 again approached the Bank in the month of May 1981 for enhancement of the facilities of overdraft from his current account and also for enhancement of the facilities in the cash credit account. The plaintiff agreed to the said proposal and enhanced case credit facilities up to Rs. 3,80,000/- w.e.f. 30.5.1981 and the facilities of overdraft from the current account was also enhanced to Rs. 2,70,000/- w.e.f. 30.5.1981. The defendant No. 1 executed the required documents for the said facilities. The defendant No. 2 stood guarantor in respect of the cash credit account as well as in respect of the said facility of overdraft. It has been stated that the defendants were irregular in making the deposits and on 1.6.1981 the defendants submitted a programme for repayment to the plaintiff-Bank. They also undertook to pay the dues of the entire cash credit account by an easy monthly instalment. But the defendant No. 1 failed and neglected to pay the just dues of the plaintiff-Bank. According to the regular books of accounts maintained by the plaintiff, a sum of Rs. 6,54,320.74 was due on 10.5.1984 towards the cash credit account, a sum of Rs. 4,31,884.50 was due on the said date towards over draft current account and a sum of Rs. 68, 749.14 was due on the said date towards term loan account being the total amount of Rs. 11,56,954.48 which is payable by the defendants to the plaintiff- Bank. Decree was sought for recovery of the said amount with interest.
4. The defendant No. 1 contested the suit by filing his written statement. The defendant No. 1 denied and disputed the facts stated in the plaint. According to him, the plaintiff has got not cause of action for the suit and the suit is not maintainable. Thus suit is also bad for misjoinder of causes of action and misjoinder of parties. The defendant No. 1 has, however, not denied the amount of loan taken by him in respect of the cash credit and overdraft facilities. But it was alleged that the Bank had procured their signature on some blank papers and printed forms with blank spaces and the contents of the same were not explained to the defendants. The defendant No. 1 has denied that there was any term of agreement for payment of interest @ minimum 14% per annum with monthly rests. It was further sated that all the payments made by the defendants towards term loan account were not accounted for by the plaintiff-bank and they have also charged interest @ 14% whimsically and arbitrarily which is apparent from the letter dated 5.5.1983. The amount mentioned in the plaint as due was denied. The statement of accounts furnished by the Bank is ex facie wrong. The defendant No. 1 repaid the amount substantially prior to institution of the suit and an amount of Rs. 68,749.14 was also denied. It has been further stated that the defendant had never approached the Bank for aforesaid facilities and it was the Bank which forced the defendants to avail the said facilities. The amount of interest has also been calculated whimsically and arbitrarily. Therefore, though the overdraft facility and cash credit facility were given to the defendant No. 1, the amount shown in the schedule of the accounts appended to the plaint and claimed by the Bank is incorrect and disputed. The claim is inflated and not supported by any document. It has been stated that even after institution of the suit, the defendant made deposits which were accepted by the Bank, but the same were not adjusted in the books of the account. The books of accounts thus do not give the true picture. The D.P. Note also does not give the actual calculation of the due amount. The plaintiffs suit is thus not based on correct statement and is liable to be dismissed. The defendant, however, admitted that the defendant No. 2 stood as a guarantor in respect of all the advance facilities i.e., term loan, cash credit and overdraft granted to the defendant No. 1. However, it was stated that the documents signed by the defendant No. 1 was in English and since the defendant No. 1 does not know English, he was not aware of the contents of the said documents.
5. On the basis of the said pleadings, the following issues were framed by learned trial Court.
(i) Is the suit maintainable?
(ii) Has the plaintiff got valid cause of action for the suit?
(iii) Is the suit bad for misjoinder of causes of action, misjoinder of parties and it suffers from multifareousness?
(iv) Is the suit barred by law of limitation?
(v) Is the statements of accounts furnished by the plaintiff Bank correct?
(vi) Is the plaintiff entitled to get any relief, if so, what?
6. Evidences were led by the parties to prove their case. On conclusion of trial, learned Court below decided the Issue Nos. 1, 2, 3 and 4 in favour of the plaintiff and held that the suit is maintainable and not barred by limitation and that the plaintiff has got valid cause of action and the suit is not bad for misjoinder of the parties. However, learned trial Court recorded its finding deciding the Issue No. 5 against the plaintiff. So far as the claim of due is concerned, it has been held by learned trial Court that the account furnished by the plaintiff (Exts. 22 series) is not true and correct and the same cannot be accepted as evidence in view of the provision of Section 4 of the Banker's Book Evidence Act, 1891. The plaintiffs suit has been decreed holding the defendants liable to pay Rs. 11,56,945.48 and Rs. 4,31,884.50.
7. In this appeal, the contesting respondent had appeared. He was contesting the appeal, but during the pendency of the appeal, the respondent No. 1 died. However, no step was taken on behalf of the appellant to file the substitution petition. The prayer was made on behalf of the respondents to inform about the date of death etc. but the appellant did not take steps for substitution of the heirs and legal representatives of the deceased-respondent No. 1 and since there is another respondent No. 2, the appeal proceeded against the surviving respondent ignoring the respondent No. 1.
8. Mr. Deepak Kumar Bharti, learned Counsel appearing on behalf of the appellant, submitted that learned Court below has committed serious error of law in rejecting and ignoring the Exts. 22 series which are the statement of accounts. In view of the provision of Section 4 of the Banker's Book Evidence Act, 1891, the said documents are admissible in evidence. Learned Counsel submitted that learned trial Court in absence of any contrary evidence should not have brushed aside the said documents and should not have come to the finding that the plaintiff could not prove the amount claimed as due against the defendants in the plaint. Learned Counsel submitted that the Court below has disbelieved the Exts. 22 series only on the basis of Ext. C and Ext. 15 which are the demand letter and the statement furnished by the Bank to the defendant No. 1. It has been submitted that the plaintiff has made its claim on the basis of the said entries in the books of accounts and not on the basis of Ext. 15 or Ext. C and the said documents are not the substitute of the books of accounts which is a Bank record and is admissible in evidence under the provision of Section 4 of the Banker's Book Evidence Act, 1891. Learned Counsel submitted that the Court below has also committed an error in ignoring the accrued rate of interest between the parties and decreed the suit with interest at the much lower rate i.e., @ 6% P.A. than the contractual rate of interest claimed by the plaintiff i.e., @ 14% P.A. The Court below has arbitrarily lowered down the rate of interest without any legal basis and has recorded an unsound finding.
9. When the matter is taken up for hearing, no body appeared on behalf of the respondent, in spite of repeated calls, though the name of the respondent's counsel is appearing on record and the appeal was repeatedly called out. This appeal is, therefore, being disposed of in absentia of the respondent.
10. In view of the grounds taken in this appeal, the following points arise for consideration of this Court:
(i) Whether the finding of learned Court below on Issue No. 5 is correct and sound?
(ii) Whether learned Court below has committed an error in awarding the interest @ 6% P.A.
11. Point No. 1.--The trial Court while deciding the Issue No. 5 has doubted the correctness of Ext. 22 series which are statements of the accounts on the basis of which the plaintiff has claimed the balance due of Rs. 11,56,954.48. Learned Court below has discarded Ext. 22 series on the ground that one uncalled for thing is mentioned in the said series which learned Court below has quoted as follows : 'Accrued interest calculated @ 14% P.A. with quarterly rests from 11.5.1984 to 12.6.1985 charges to Rs. 7055/80 which is to be true recorded the indjement date'. Learned Court below has held that the said part of the evidence cannot be accepted in the Banker's Book Evidence Act, 1891 and the statements as such are wholly inadmissible in evidence. The statement of accounts was issued by the Bank Manager of Chaibasa Branch of the S.B.I. PW 4 Akant Bhushan Deb was the then Branch Manager of Chalbasa Branch and he has stated in his evidence that in Ext. 22/A he found mentioned that on 31.1.1979 the first rate of interest was added and it was Rs. 20.79. The Branch Manager, however, could not say as to what was the principal amount on the basis of which the interest was charged. Learned Court below has accepted the contention of the defendant-respondent that the Ext. 22 series are not the true copies of the ledger as it contains something more than that. Learned Court below concluded that since the documents (Ext. 22 series) are not the true and exact copies of ledger as per the evidence of PW 4, the same cannot be taken into evidence. It has no evidentiary value. Only on that basis, learned trial Court has decided the said issue in favour of the defendant.
12. Mr. Deepak Kumar Bharati, learned Counsel appearing on behalf of the appellant, submitted that the said statement of accounts was issued by the Branch Manager duly certified by him and under Section 4 of the Banker's Book Evidence Act, 1891, the same is admissible in evidence and if the said statement of accounts bears the entry of the balance amount due against the defendant, the plaintiffs claim cannot be thrown out. He submitted that learned Court below has erroneously discarded the said evidence against the provision of Section 4 of the Banker's Book Evidence Act, 1891.
13. In order to appreciate the said contention, the provision of Section 4 of the Banker's Book Evidence Act, 1891 is to be noticed. Section 4 of the said Act runs as follows:
4. Mode of proof of entries in Banker's Books,--Subject to the provisions of this Act a certified copy of any entry in a banker's books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts, therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.
14. It is clear from the said provision that a certified copy of any entry in the Banker's books shall be received as prima facie evidence of the existence of such entry and shall be admissible as evidence of the matters, transactions and accounts therein and to the same extent as, the original entry itself is now by law admissible. The said provision does not, therefore, exclude the statement of accounts which showed the transactions. It cannot be said that the entries showing transactions in the accounts and the statements of accounts is not admissible, if the same is otherwise not challenged or inadmissible.
15. In United Industrial Bank Ltd. v. G.C. Dey reported in : AIR1974Cal151 . it has been held that where an officer of the plaintiff-Bank produced a statement of the defendant's accounts with the plaintiff-Bank duly certified by the Branch Manager under the Bankers' Books Evidence Act and deposed to the correctness of the said statement and it appears that certain amount was due and owing by the defendant to the plaintiff, the plaintiffs claim ought to succeed.
16. On perusal of the facts of that case, it appears that in the said case also the defendants had not appeared at the trial stage.
17. In view of the above discussions and consideration of the facts and materials available on record, I find that learned trial Court has not taken correct view of the provisions of law as well as facts of the case and has committed an error in deciding the Issue No. 5 in favour of the defendant. The finding recorded by learned trial Court is, thus, unsustainable in law and is liable to be set aside.
18. Point No. II.--So far as the rate of interest is concerned, learned Court below has discussed the evidences and the materials on record. Learned Court below on appraisal of the evidences of the DWs and also considered the documents Ext. A series, Ext, B and the relevant oral evidence of PW 4 Akant Bhushan Deb, Branch Manager and has come to the finding that the plaintiff failed to prove the claim of contractual interest @ 14% P.A. Learned Court below has thus granted interest @ 6% P.A. in accordance with the provision of Section 34 of the Code of Civil Procedure.
19. I have also thoroughly examined the evidences and materials on record. I find no infirmity or illegality in the said finding of the Court below. This point is, thus, decided against the appellant.
20. In the result, the finding of learned Court below on Issue No. 5 is set aside and other findings are upheld. This appeal is, accordingly, allowed. There shall be no order as to costs.