TMI Blog2018 (8) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... lected from him by mistake by the Officers of the appellant Bank at the time of consolidating the fixed deposit. The conduct of the appellant in waiting for 5 years and thereafter trying to take advantage of these original fixed deposit receipts, can be clearly seen in the facts and circumstances of this case. Whether the appellant Bank has discharged the onus by disproving the claim made by the respondent and whether the respondent on the onus being shifted has established the claim? - Held that:- 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. Whether the judgment and decree of the learned Single Judge deserves to be interfered with in this appeal? - Held that:- The learned Single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 30 lakhs. However, the earlier two fixed deposits for ₹ 20 lakhs and ₹ 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 deposits for ₹ 20 lakhs and for ₹ 10 lakhs made by the respondent. However since there was an advantage to consolidate these two fixed deposits and make it a single deposit for ₹ 30 lakhs and increase the period of the deposit to two months, with an interest of 18.5%, the appellant Bank on request made by the respondent, consolidated the fixed deposit. On maturity, this amount was repaid with interest on 25.03.1998. The respondent never made any cash deposit as claimed by him and the additional ₹ 30 lakhs fixed deposit claimed by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 28.08.2003 [Ex.P-5] written by the appellant Bank to be an acknowledgement of the liability and created a cause of action for filing the suit. This acknowledgement was admittedly not made within three years and therefore even assuming this letter to be an acknowledgement of liability, the same will not in any way save the limitation which came to an end in the year 2001 itself and acknowledgement has happened beyond three years. The Statement of Accounts with certificate und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 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 Others reported in [2004 (2) CTC 624]. 3) State of Gujarat .Vs. Kothari and Associates reported in [(2016) 14 SCC 761]. 7.2.Per contra, Mr.N.L.Rajah, learned senior counsel appearing for Mr.C.Ramesh, learned counsel for the respondent made the following submissions: The appellant never raised the issue of limitation even in the written statement and no issue was framed in the suit on limitation and for the first time an attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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.Whether the appellant Bank has discharged the onus by disproving the claim made by the respondent and whether the respondent on the onus being shifted has established the claim? 4.Whether the judgment and decree of the learned Single Judge deserves to be interfered with in this appeal? 9. DISCUSSION:- 9.1.The moot question that needs to be unraveled in this appeal is whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k 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 ₹ 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 of India and parallely to the Police. A careful look at Ex.D-5 and D-6 (series) would disclose that the appellant Bank has specifically addressed the queries of RBI and have taken a consistent stand that the respondent did not make any cash deposit for ₹ 30 lakhs and the fixed deposit of ₹ 30 lakhs was due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 copy of any entry in a banker's book shall in all legal proceedings as 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 appellant Bank not to repay the other two fixed deposits paid by way of cheques, if really they were available at the relevant point of time. It does not stand to logic as to why the appellant Bank will not repay fixed deposit on maturity if it is really availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appreciate this argument it would be necessary to notice at the outset the scope of the presumption under Section 118 of the Negotiable Instruments Act and also the different methods available to a person against whom suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relation to the facts of the particular case. Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Khan MANU/UP/0548/1922 : 79 Ind Cas 464 : AIR 1923 All 214, Singar Kunwar v. Basdeo Prasad MANU/UP/0088/1930 : 124 Ind Cas 717 : AIR 1930 All 568 and Bishambar Das v. Ismail MANU/LA/0500/1932 : AI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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