J.K.Aggarwal v. Bank of India

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J. NOVEMBER 11, 2008 mm

i.6 * IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA 594/2007 % Date of Order: 11.11.2008 J.K.AGGARWAL ..... Appellant Through: Mr. Sanjay Gupta, Advocate versus BANK OF INDIA ..... Respondent Through: Mr. R.K.Dhawan, Advocate Mr. Rahul Gaur, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R.MIDHA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J.(Oral) 1. Heard learned counsel for the parties. 2. The appellant was undoubtedly a guarantor in respect of a loan advanced to defendant No.1 by respondent No.1 who was the plaintiff. In respect of the loan, defendants No.2 and 3 as also the appellant, impleaded as defendant No.4, stood guarantee for repayment. 3. The suit has been decreed in sum of Rs.7,84,415/- together with pendente lite and future interest @ 18.5% per annum from date of suit till realization. 4. We may note that the principal borrower i.e. defendant No.1 and co-defendants No.2 and 3 have not challenged the decree. Only the appellant is in appeal. 5. The statement of account on which the suit was based has been proved as Ex.P-13. The same reads as under:- Date Particulars Debits Cr. Or Dr. Credits Balance 10/12/97 By Balance/Totals as per last statement Brought Forward (To loan disburse) 25,00,000 Dr. 25,00,000 01/01/98 To intt upto 31.12.1997 18,443.64 26/03/98 To intt upto 26.03.1998 71,785.96 27/03/98 By Transfer 12,960 29/07/98 To intt upto 31.07.1998 2,29,633 30/09/98 To intt upto 24.09.1998 74,644 23/12/98 By Transfer 10,000 29/12/98 To pay slip issued for search in ROC 1/11/99 By Transfer 30,00,000 Cr. 1,14,873 8/11/99 To Transfer (Valuation of Car) 42,480 31/12/99 To intt upto 10/11/98 Recovered 71,279 31/03/2000 By Transfer 1114 NIL 301012960 301012960 NIL 03/04/2000 By Transfer 301012960 301012960 NIL 1114 29/09/2000 To Transfer 1114 03/10/2000 By Transfer 1114 Cr. 1114 301124360 301235760 Certified that the above is true copy of the entry/entries contained in the ledger being one of the ordinary book of the Bank, that such entry/entries were made in the usual and ordinary course of the business of the Bank and that the said book/record is still in the custody of the Bank. STATEMENT OF UPDATED DUES CUM INTEREST CERTIFICATE 06/12/2000 To Balance B/Forward from statement as per Bankers' Books Evidence Act 1981 Cr. 1114 To interest accrued from 01/01/99 to 05/12/2000 785529 Dr. 7,84,415 6. Since Ex.P-13 has been certified under the Bankers' Book Evidence Act, the learned Trial Judge has held that entries reflected in Ex.P-13 have to be treated as correct. 7. Before analyzing Ex.P-13 viz-a-viz the challenge to the entries therein recorded, we would note at the outset that the appellant was denied the right to file a written statement and had no defence and thus was not permitted to lead any evidence. Thus, the fate of the appellant has to be decided limited to the question whether the plaintiff proved its case. 8. Needless to state a defendant who has not filed a written statement can always cross examine the witnesses of the plaintiff and can succeed if the defendant demolishes the credibility of the witnesses of the plaintiff or otherwise is able to demolish the case of the plaintiff. 9. The challenge by the appellant to Ex.P-13 was predicated by cross examining the sole witness of the bank, examined as PW-1, with respect to the debit entry in sum of Rs.42,480/- recorded on 8.11.1999 as also a debit entry in sum of Rs.7,84,415/- reflected in the statement of account on 6.12.2000 after closing the account by recording a transfer entry on 3.10.2000, recording a credit balance in sum of Rs.1,114. 10. The witness of the bank was cross examined on the two entries and the relevant extracts of the testimony are as under:- "I have seen the document Ex.P-13. As per the said statement the withdrawal was made only once at the time of disbursement of loan……