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TMI Blog2018 (8) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... tted a separate fixed deposit number and issued confirmation of deposit. The respondent made a further deposit of Rs. 30 lakhs on 24.01.1998, by way of cash in the fixed deposit for a period of two months with an interest rate of 18.5%. A separate fixed deposit number was allotted by the appellant Bank and the appellant Bank also issued confirmation of deposit. 2.2.The appellant Bank paid a sum of Rs. 30,91,232.87/- [Rupees Thirty Lakhs ninety One Thousand Two Hundred and Thirty Two and Paise Eighty Seven Only] on 25.03.1998, on maturity of the fixed deposit made for a sum of Rs. 30 lakhs. However, the earlier two fixed deposits for Rs. 20 lakhs and Rs. 10 lakhs were not paid even after the maturity period. The respondent sent a letter dated 26.08.2003, to the appellant Bank asking them to refund the two fixed deposits along with interest however the appellant Bank did not refund the amounts due under the fixed deposits. There was exchange of notice between the parties and ultimately the above said suit came to be filed by the respondent seeking for refund of the fixed deposits with interest. 3. The case of the defendant/appellant in brief : 3.1.The Bank has admitted the two dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion? 5.The respondent/plaintiff examined himself as PW-1 and marked Exs.P-1 to P-9 in order to substantiate his case. The appellant/defendant examined itself Head-Retail Operations [Tamil Nadu and Andra Pradesh] on their side and marked Exs.D-1 to D-11 in order to defend themselves against the claim made by the respondent/plaintiff. 6.The learned Single Judge on examination of the pleadings, the oral and documentary evidence, came to a conclusion that the respondent/plaintiff has proved the case and answered all the issues in his favour and consequently decreed the suit as indicated herein above. 7. SUBMISSIONS: 7.1.Mr.AR.L.Sundaresan, learned Sr.counsel for Ms.A.L.Ganthimathi, learned counsel appearing for the appellant, made the following submissions: The fixed deposit, even according to the respondent, matured on 25.03.1998, the claim was made for the first time only on 26.08.2003 [Ex.P-4] and therefore the suit filed by the respondent in the year 2005 is barred by limitation. Even though the limitation was not made an issue before the Trial Court, it can be made an issue at any point of time by virtue of Section 3 of the Limitation Act. The respondent has taken the letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to make a claim for refund of the fixed deposit. The learned senior counsel further contended that even if the fixed deposit is taken to be a negotiable instrument, the appellant Bank has discharged its onus by showing from the evidence of the respondent along with the documents filed before the Court, that the existence of the fixed deposit claimed by the respondent was improbable and the onus shifted on the respondent to prove his case on payment of Rs. 30 lakhs by cash, which he failed to discharge and therefore the respondent is not entitled to make any claim in the above suit. To support his contention, the learned senior counsel relied upon the following judgments: 1) Kundan Lal Rallaram .Vs. Custodian, Evacuee Property, Bombay reported in [AIR 1961 SCC 1316 ] 2) M.S.Narayana Memon Alias Mani .Vs. State of Kerala and Another reported in [(2006) 6 SCC 39]. The learned senior counsel in order to substantiate his arguments on limitation relied upon the following judgments: 1) Valliamma Champaka Pillai .Vs. Sivathanu Pillai and Others reported in [(1979) 4 SCC 429]. 2) V.S.Manickasundaram .Vs. V.S.Ramalinga Gounder & Co. by Partner, Palanivelu, Park Road, Erode and Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the appellant Bank continues to work in the appellant Bank. However, he was not examined by the appellant Bank for reasons best known to the appellant Bank. The best witness available who had personal knowledge about the fixed deposit made by the respondent, was not examined by the appellant Bank and therefore adverse inference must be drawn against the appellant Bank. To substantiate this argument, the learned senior counsel relied upon the following judgments: 1) Man Kaur (Dead) By Lrs. .Vs. Hartar Singh Sangha reported in [(2010) 10 SCC 512]. 2) Grasim Industries Limited and Another .Vs. Agarwal Steel reported in [(2010) 1 SCC 83] . The learned senior counsel further contended that the learned Single Judge has dealt with each and every issue based on the evidence available on record and there is no ground to interfere with the findings of the learned Single Judge and the appeal is liable to be dismissed. 8. POINTS FOR CONSIDERATION : 1.Whether the suit filed by the respondent/plaintiff is barred by the law of limitation? 2.What is the effect of the Statement of Accounts filed by the appellant Bank under the Bankers' Books Evidence Act, 1891 ? 3.Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the receipt/acknowledgement for the renewal. However, the respondent did not have any material to support the so called renewal. In fact that was not even his case in the pleadings. At one stage in the evidence, the respondent even goes to the extent of saying that the deposits were renewed periodically by the appellant Bank and apparently this statement was made to save himself from limitation. 9.4.The respondent has attempted to create a cause of action for this suit through Ex.P-5. According to the respondent, Ex.P-5 is an acknowledgement of liability by the appellant Bank. A look at Ex.P-5 shows that it merely provides information on three fixed deposit numbers and amounts that stands in the name of the respondent. The moment the respondent started making claims against the appellant Bank for repaying the fixed deposit of Rs. 30 lakhs with interest, the appellant Bank immediately issued a legal notice on 11.09.2003 [Ex.P-7] and categorically informed the respondent that he is trying to take advantage of a clerical mistake that has occurred in communication and is trying to unjustly enrich himself. 9.5.The respondent therefore started giving complaint to the Reserve Bank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be the effect of Article 22 to the facts of this case will involve certain findings on fact. In other words in this case, the question of limitation is intertwined into a mixed question of fact and law. What will be the effect of Article 22 on mere deposit, on a fixed deposit for a specified period, whether the deposit is payable only on demand etc., requires findings on fact. The Appellate Court should not venture to undertake this exercise for the first time in appeal on a issue which involves a mixed question of fact and law. Therefore, there is no need to analyse the judgment relied upon by the learned senior counsel appearing on either side in this regard. The first point for determination is answered accordingly. Point No.2 :- 11.The appellant Bank has marked the statement of accounts as Ex.D-3. The same has been also been certified under Section 2 (A) of the Banker's Books Evidence Act, 1891. These are books of accounts which are kept by the appellant Bank in their regular course of business. Section 4 of The Banker's Books Evidence Act, reads as follows: 4.Mode of proof of entries in banker's books.- Subject to the provisions of this Act, a certified cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Colleges. The respondent on his own admission, is an income tax assessee and for the relevant assessment year, he would have shown fixed deposit made for a sum of Rs. 60 lakhs, if really he had deposited in the appellant Bank. If the respondent had produced the income tax returns, that would have clinched the entire case. However, the respondent had chosen not to reveal his income tax returns for the relevant period. The respondent rather wants to rely upon a letter given by some authorised signatory in the appellant Bank and take advantage of it. It is rather curious that the respondent waited for 5 = years and for the first time chose to write a letter on 26.08.2003 to the appellant claiming for the repayment of two fixed deposits which even according to the respondent matured on 22.02.1998 and 23.02.1998, respectively. When asked about the delay in claim, the respondent tries to cover it up by saying for the fixed deposits were renewed. That was not even his case in the plaint. 15.Admittedly the fixed deposit for Rs. 30 lakhs matured on 25.03.1998 and on the very same day the appellant Bank repaid the amount with interest at the rate of 18.5%. There is no reason for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int No.3 :- 18.The appellant Bank had discharged the onus that was cast on them by relying upon the evidence of PW-1 and the documents marked on either side. The burden shifted on the respondent to prove the payment of Rs. 30 lakhs by cash. The respondent could have easily marked the income tax returns and discharged his burden. However he chose not to reveal his income tax returns and therefore this Court has to necessarily draw an adverse inference on the conduct of the respondent. 19.Even if the fixed deposit receipt marked as Exs.P-1 and P-2 is taken to be a negotiable instrument and presumption under Section 118 of the Negotiable Instruments Act, is to be drawn against the appellant Bank, the appellant Bank is entitled to rebut the presumption by means of preponderance of probabilities and for the said purpose, evidence adduced on behalf of the plaintiff and the materials on record and also the circumstances upon which the defendant relies up can be taken into consideration for the purpose of rebutting the presumption. 20.The following extract from Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay reported in [AIR 1961 SCC 1316] will be more apposite : 4. To appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the Plaintiff; but as soon as the execution is proved, Section 118 of the Negotiable Instruments Act imposes a duty on the Court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the Defendant. The Defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and, if he adduced acceptable evidence, the burden again shifts to the Plaintiff, and so on. The Defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the Plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. Under Section 114 of the Evidence Act, "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under Section 114 of the Evidence Act. A division bench of the Madras High Court in Narayana Rao v. Venkatapayya ILR (1937) Mad 299 : AIR 1937 Mad 182 considered the interaction of the provisions of Section 118 of the Negotiable Instruments Act and Section 114 of the Evidence Act in the matter of rebuttal of the presumption under the former section. After considering the earlier decisions, including those of the Privy Council, Varadachariar, J., summarized the law at p. 311 (of ILR Mad) : (at p. 187) of AIR) thus: It has to be borne in mind that, when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstances, cf. Yellappa Ramappa Naik v. Tippanna 56 Mad LJ 287 : MANU/TN/0153/1928 : AIR 1929 Mad 8 and that even the onus under Section 118 of the Negotiable Instruments Act need not always be discharged by direct evidence adduced by the Defendant; Muhammad Shafi Khan v. Muhammad Moazzam Ali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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