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TMI Blog2008 (11) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 42,480/- recorded on 8.11.1999 as also a debit entry in sum of ₹ 7,84,415/- reflected in the statement of account on 6.12.2000 after closing the account by recording a transfer entry on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment under the bill. Challenging the debit entry in sum of ₹ 7,84,529/- reflected in Ex.P-13 after closing the account by certifying that ₹ 1,114/- was the credit balance in the account, learned counsel for the appellant urges that PW-1 has not been able to prove the justification of the said debit entry. 12. Learned counsel for the respondent No.1 responds by urging that inadvertently the interest payable from 1.1.1999 to 5.12.2000 could not be debited in the account at the relevant time and thus corrective action was taken. Justifying the debit entry in sum of ₹ 42,480/-, learned counsel urged that indeed the same represented the payment made to the surveyor when the car hypothecated to the bank was sold in sum of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Evidence Act would not be sufficient to charge any person with liability and as such copies produced under S.4 of the Bankers' Books Evidence Act obviously cannot charge any person with liability. Therefore, where the entries are not admitted it is the duty of the bank if it relies on such entries to charge any person with liability, to produce evidence in support of the entries." 14. The learned Trial Judge has thus ignored the law on the subject and has taken an incorrect view that law treats entries in the books of account maintained by a banker and duly certified under the Bankers' Book Evidence Act as conclusive proof thereof. 15. Let us revisit Ex.P-13. 16. The same evidences that the entire loan in sum of ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally stated that he could not tell about the details of the interest which have been debited in the account and more so the stated consolidated interest entry dated 6.12.2000. 20. It is obvious that the bank has not been able to prove the debit entry in dispute. 21. We need not, thus, deal with the debit entry in sum of ₹ 42,480/- as the said debit would make difference to the case of the appellant. 22. The purity of the statement of account Ex.P-13 has been seriously dented by the manner in which the bank has made debit entries pertaining to interest which had become payable. For the loan in sum of ₹ 25,00,000/- availed of on 10.12.1997, interest has been debited in sum of ₹ 18,443.64 up to 31.12.1997 i.e. interest com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest are random casting a serious doubt about their correctness. The basis of the suit is the debit entry in sum of ₹ 7,85,529/- evidenced by the fact that the suit seeks recovery of ₹ 7,84,415/- which is the sum reached by adjusting ₹ 1,114/-. The entry of ₹ 7,85,529/- is stated to be interest from 1.1.1999 to 5.12.2000. Entire loan of ₹ 25,00,000/- and interest thereon were recovered on 1.11.1999. The respondent therefore could not have charged interest after 1.11.1999. The last entry is highly tainted and has not been proved by the witness of the bank. 25. We allow the appeal. 26. Impugned judgment and decree dated 23.8.2007 against the appellant is set aside. Suit filed by the respondent against the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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