Mortgage suit Or. 34 Rule 11 C.P.C.- Banker's Book Evidence Act - Appeal against preliminary decree after passing final decree - Reduction of suit claim by wrongly rejecting statement of account as per Banker's Book Evidence Act -Court has got jurisdiction to scaled down the interest of Plaintiff's Bank - Bank can maintain appeal over the preliminary decree even after passing of final decree - High court partly allowed the Appeal = State Bank of India Settipalle Branch, Tirupati, Chittoor District, Rep. by its Chief Manager...... Appellant P. Veeranarayana, S/o.P.Veeraswamy Naidu, Hindu, aged about 49 years, Occ: Business, Managing Director o M/s.Siubar Auto Parts Limited, Sattipalle, Tirupati...... Respondent = Published in judis.nic.in/judis_andhra/filename=10295
Mortgage suit Or. 34 Rule 11 C.P.C.- Banker's Book Evidence Act - Appeal against preliminary decree after passing final decree - Reduction of suit claim by wrongly rejecting statement of account as per Banker's Book Evidence Act -Court has got jurisdiction to scaled down the interest of Plaintiff's Bank - Bank can maintain appeal over the preliminary decree even after passing of final decree - High court partly allowed the Appeal =
Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:
"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...
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, 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."=
State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower.
Claiming that the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.
Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.=
After passing of final decree also , an Appeal is maintainable over the preliminary decree =
From the above, it would be clear that there is no rebuttal evidence on
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13.
21. As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.
Undoubtedly, the Supreme Court in N.M. VEERAPPA's case
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.
Point No.2 is accordingly answered against the appellant-bank.
25. In the result, the decree of the trial Court stands modified as under:
1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.
2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.
3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003.
The appeal is accordingly allowed in part.
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
APPEAL SUIT No.176 OF 2004
Dated :04-09-2013
State Bank of India Settipalle Branch, Tirupati, Chittoor District, Rep. by its
Chief Manager...... Appellant
P. Veeranarayana, S/o.P.Veeraswamy Naidu, Hindu, aged about 49 years, Occ:
Business, Managing Director o M/s.Siubar Auto Parts Limited, Sattipalle,
Tirupati...... Respondent
Counsel for Appellant: Mr. M. Narender Reddy
Counsel for Respondent:Mr. T.V.L. Narasimha Rao
<GIST :
>HEAD NOTE :
?Cases referred :
1. AIR 1967 SC 1236
2. AIR 1999 SC 896
3. (1998) 2 SCC 317
The Court made the following: -
JUDGMENT:
State Bank of India, which is plaintiff in O.S.No.25 of 2000 on the file
of the III Additional District Judge, Tirupati, has filed this appeal to the
extent of disallowed claim by the trial Court under judgment dated 22.03.2002.
2. State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower.
Claiming that
the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.
3. I have heard Mr. M. Narender Reddy, learned counsel for the bank and Mr.
T.V.L. Narasimha Rao, learned counsel for the borrower. Both the learned counsel
have elaborately made submissions with reference to their respective claim on
the basis of documents,
which primarily comprise of statement of accounts, exhibited in the suit. The
bank as well as the borrower have produced additional documents requesting to
receive them as additional evidence, reference to which would made at an
appropriate place.
4. Before going into the merits of the claim of the bank in the appeal, it is
necessary to deal with a preliminary objection of maintainability of the appeal
raised by the borrower.
PRELIMINARY OBJECTION:
5. Mr. T.V.L. Narasimha Rao, learned counsel for the borrower, contended that
the present appeal is filed against the preliminary decree granted by the trial
Court on 22.03.2002 in the mortgage suit aforesaid. Based on the said
preliminary decree the bank has filed an application for grant of final decree
in I.A.No.1478 of 2002 on 07.10.2002 requesting the trial Court to pass a final
decree in terms of the said preliminary decree on the ground that the redemption
was not availed by the borrower. The said final decree application was allowed
by the trial Court by passing a final decree dated 07.08.2003. Learned counsel,
therefore, states that, in the meanwhile, the bank had filed the present appeal
on 24.06.2002 questioning the preliminary decree and that the filing of the
final decree application and passing of the final decree was never disclosed
while filing the present appeal. Learned counsel also submits that though this
appeal was filed on 24.06.2002, it was retuned with certain office objections on
06.08.2002 but was not represented within time and the application seeking
condonation of delay of 1196 days in representing the appeal in CMP.No.22784 of
2003 was ordered only on 07.01.2004 and it is only thereafter the appeal was
numbered and admitted on 28.06.2004 and only thereafter notice in this appeal
was served on the borrower.
6. Learned counsel for the borrower, therefore, submits that having accepted
the preliminary decree, which is impugned herein and having sought a final
decree to be passed in pursuance thereafter and having secured a final decree as
early as on 07.08.2003, the bank is estopped from pursuing this appeal against
the preliminary decree,
as it cannot be allowed to blow hot and cold. Learned counsel, further, submits
that the filing and prosecution of this appeal by the bank is also not bonafide,
as they never disclosed filing of this appeal in the application filed by them
for final decree. Thus, in view of passing of the final decree, the preliminary
decree merges in the later decree and on that ground also the present appeal is
not maintainable.
7. Mr. M. Narender Reddy, learned counsel for the bank, submits that there is
no impediment for maintainability of the present appeal inasmuch as this appeal
was presented on 24.06.2002 long before the final decree application was filed.
Learned counsel submits that,
no doubt, there was delay in representing the appeal when the office raised
objections but since the said delay was condoned, the time for representation
stands extended and thereafter, the appeal has been duly numbered and admitted.
Learned counsel submits that even though the bank is aggrieved to the extent
disallowing of its suit claim in entirety, while passing the preliminary decree,
to the extent of the decreed suit claim there was no impediment for the bank in
seeking final decree. Learned counsel also submits that if the bank waited for
the result of this appeal, it could not have recovered even the suit claim
covered by the preliminary decree and there was no reason,
in law, disabling the bank from seeking final decree on the basis of preliminary
decree pending appeal against the preliminary decree. Learned counsel relied
upon a decision of the Supreme Court in
SITAL PERSHAD v. KISHORI LAL1 which has considered similar question and held
that, in such circumstances, the appeal is maintainable.
8. In order to decide the said preliminary objection, it would be appropriate
to notice the relevant facts in the aforesaid decision.
The appellant before the Supreme Court suffered a preliminary decree in a
mortgage suit. However, the interest, as claimed by the respondent, was not
decreed and to that extent, the respondent had filed an appeal before the High
Court. Meanwhile, the respondent applied for passing of final decree, which
application was allowed and thereafter, the respondent took out the execution of
the said final decree. Meanwhile, the appeal filed by the respondent to the
extent of disallowed claim, was allowed by the High Court. Based on the said
subsequent event, the appellant objected to the execution of final decree
earlier passed in view of subsequent modification of preliminary decree. The
executing Court, however, rejected the said objection and out of that the matter
reached the Supreme Court. The Supreme Court held at para 5 as under:
The question before us in the present appeal therefore is which of these two
views is correct. Before we consider this question we may state certain well-
settled propositions with respect to preliminary and final decrees in mortgage
suits and the effect of an appellate decree in general on the decree of the
trial court. Generally speaking, the decree of the appellate court supersedes
the decree of the trial court even when it confirms that decree and therefore it
is well-settled that only the appellate court can amend the decree thereafter:
[see Muhammad Sulaiman Khan v. Muhammad Yar Khan (1888) ILR All 267 (FB)]. It is
equally well-settled that where an appeal has been taken from a preliminary
mortgage decree and is decided, the time for preparation of final decree is
three years from the date of the appellate decree even though the appellate
court may not have extended the time for payment provided in the preliminary
decree, where no final decree has been prepared in between : see Jowad
Hussain v. Gendan Singh, 53 Ind App 197 : (AIR 1926 PC 93). This applies even to
a case where the decree of the appellate court is made more than three years
after the time fixed for payment in the preliminary decree :
[see Fitzholmes v.
Bank of Upper India, 54 Ind App 52 : (AIR 1927 PC 25). Further it is well-
settled that the mere fact that there is an appeal from a preliminary decree
does not oust the jurisdiction of the trial court to prepare a final decree even
while the appeal is pending unless there is a stay order :
[see Sat Prakash v.
Bahal Rai ILR 53 All 282 : (AIR 1931 All 386 (FB)]. Even if a final decree has
been passed an appeal from a preliminary decree is not incompetent and it is not
necessary for a party to appeal both from the preliminary decree and the final
decree in order to maintain his appeal against the preliminary decree.
In such a case where the preliminary decree is set aside the final decree is
superseded whether the appeal is brought before or after the passing of the
final decree :
[see Talebali v. Abdul Aziz, ILR 57 Cal 1013 : (AIR 1929 Cal 689
(FB)]. Further it was observed in the last case that where an appellate court
sets aside or varies a preliminary decree it can, and indeed could, give
direction for the setting aside or varying of the final decree, if the
existence of the final decree is brought to its notice as in all cases it ought
to be."
[Emphasis supplied]
The legal position, therefore, is conclusively answered by the aforesaid
passage, particularly, the emphasized portion and in view of that the
preliminary objection raised by the learned counsel for the borrower is liable
to be rejected and is accordingly rejected.
9. The brief facts of the case are as follows:
(a) As stated above, the bank had sanctioned a housing loan for Rs.7 lakhs
to the borrower but the actual amount disbursed was
Rs.5.5 lakhs. The said amount was repayable in 168 monthly installments at
equated monthly installments (EMI) of Rs.7,150/- per month with effect from
31.03.1996. It is pleaded in the plaint that to secure such loan with interest
at 17.25% with quarterly rests, agreed upon, the borrower created an equitable
mortgage by deposit of title deeds. As per the terms of the loan, when the
outstanding against loan was not paid in spite of repeated demands, a legal
notice, Ex.A7 dated 16.06.2000, was issued and served on the borrower under
acknowledgment, Ex.A8 and thereafter, the present suit was filed on 23.07.2000.
(b) The borrower filed a written statement denying the suit claim and
disputed the amount claimed, as outstanding. It was also stated that the EMI's
were paid by the borrower and recovered and
in fact, from October 1998 onwards the borrower paid ad hoc amounts of
Rs.14,000/- per month to clear off the loan at an early date.
It is also stated that though the legal notice was replied under reply dated
03.07.2000, the suit is filed without referring thereto.
The borrower had also claimed that he had paid excess amount on Rs.1.04 lakhs,
as such, the suit claim is not tenable and there is no cause of action for the
suit.
10. On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the defendant availed loan of Rs.5,50,000/- from the plaintiff bank
and agreed to pay the amount in 180 equal monthly installments and executed term
loan agreement on 31.3.95 and a letter dt.31.3.95?
2. Whether the defendant deposited title deed and created an equitable mortgage
and executed From A letter of deposit of title deed on 3.4.95 in favour of
Plaintiff Bank?
3. Whether the defendant executed a revival letter on 28.1.98 acknowledging his
liability and whether the suit is within limitation?
4. Whether the defendant paid the amount to the plaintiff as per the E.M.I fixed
by the Plaintiff?
5. To what relief?
11. On behalf of the bank, P.W.1, Assistant Manager of the Bank was examined
whereas the borrower examined himself as D.W.1.
On behalf of the bank, the loan documents were marked as Exs.A1 to A13 whereas
no documentary evidence is produced and marked on behalf of the borrower.
12. While answering issues 1, 2 and 3 in favour of the bank,
the trial Court has recasted issue No.4. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.
13. Based on the aforesaid, the points for consideration in the appeal are:
1. Whether the finding of the trial Court in not accepting Exs.A6 and A13 is
justified?
2. Whether denying contractual rate of interest in a suit for mortgage is
justified?
14. Before answering the questions, as above, it is necessary to deal with
ASMP.No.1685 of 2013, filed by the borrower, requesting this Court to receive
the Recalculated Housing Loan Account Statement; Recast Notional Housing Loan
Arrears Account and Letter dated 23.04.2013, as additional evidence. The
documents filed along with the said application and letter received by the
borrower under the Right to Information Act, are, therefore, sought to be filed
as additional evidence. So far as the account statement calculated by the
borrower is concerned, apparently, it is a self-serving document,
for the statement is signed by the borrower and his counsel. In law, therefore,
such self-serving calculation sheet, as against the claim of the bank based on
certified account statement cannot be sustained. The said statement of accounts
described as recalculated housing loan account statement and recast notional
housing loan arrears account have no evidentiary value and cannot be received in
evidence.
Further, the letter of the bank issued to the borrower counsel under RTI Act
merely gives details of loan disbursed date-wise and the payment made by the
borrower date-wise are of no assistance, as all those aspects are not in
controversy. I am, therefore, not inclined to order the said application and the
same is accordingly dismissed.
15. Similarly, the appellant-bank had filed ASMP.No.2343 of 2004 requesting
the Court to receive the consolidated statement of account as additional
evidence. It is stated that the said consolidated statement is prepared merging
Exs.A6 and A13 and the said statement is signed by the Chief Manager of the
Bank. Firstly, the said document is prepared by, allegedly, consolidating
Exs.A6 and A13 and as such, the said document is not a statement of account
maintained by the bank in usual course of business nor the said document is
certified as required under Section 3 of the Banker's Books Evidence Act and as
such, the said document is also not admissible. The miscellaneous petition is
accordingly rejected.
POINT No.1:
16. A look at the pleadings of the parties would show that there is no
controversy with regard to raising of the loan, its quantum, equitable mortgage
and the terms and conditions of the said loan. Ex.A12 filed on behalf of the
bank contains the terms and conditions of the said loan dated 22.05.1995 and
under Ex.A5, admittedly,
the borrower has given letter of revival of the said loan on 21.01.1998.
Further, the said claim is based on Ex.A6, ledger extract and Ex.A13, copies of
arrears account. I have seen the original documents, both of which have been
certified as required under the Bankers Book of Evidence Act. In the absence of
any rebuttal evidence, therefore,
a statutory presumption arises in support of the said two documents with respect
to the correctness of entries therein.
17. Learned counsel for the respondent, however, disputed the very document
Ex.A13 by contending that the said document was not referred to in the pleadings
nor filed along with plaint but has been filed subsequently when P.W.1 was being
examined. According to the learned counsel, there cannot be two separate
accounts maintained by the bank and according to him, Ex.A6 alone reflects the
true accounts position and no reliance can be placed on Ex.A13.
18. Learned counsel for the bank, however, submits that both the said accounts
are required to be maintained by the bank as per instructions of the Reserve
Bank of India and for every loan account, the arrears account and the ledger
account are separately maintained and he submits that though the plaint, by
mistake, does not refer to Ex.A13, that by itself is no ground to reject the
said document.
19. It is not in dispute that the suit claim of the bank is based upon Exs.A6
and A13 and P.W.1 states in his evidence that 'Each loan account of our bank
will be maintained under two separate heads,
for the convenience of computer processing. Under the first head all the
disbursements made to the borrower by the Bank will be shown.
In the other head, amounts due by the borrower, monthly installments due and
interest accrued thereon will be shown ... The amount shown under Ex.A13 is
reflected under Ex.A6 already. In Ex.A6 the schedule repayable amounts are only
shown by way of installment. But they are not actual payments, made by the
defendant. In Ex.A6, the actual amount due on 23.07.2000 (date of suit) is
shown. Subsequent to, the filing of the suit defendant paid an amount of
Rs.24,500/- in two installments and plaintiff has no objection for deducting
that amount from the suit amount". A suggestion given to P.W.1 may also be
noticed, which says, "It is not true to say that Ex.A13 does not reflect true
facts as we have not produced the original ledgers before the Court." In this
context, defendant, D.W.1, states in cross-examination dated 17.04.2011 as
follows: "The payment made by me mentioned in the ledger, are correct. A6 is the
ledger extract". Regarding Ex.A3, however, he did not make any statement.
20. Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:
"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...
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, 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."
From the above, it would be clear that there is no rebuttal evidence on
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13.
21. As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.
Point No.1 is accordingly answered in favour of the appellant.
Point No.2:
22. With regard to the claim for interest by the bank, as per the contractual
rate, as claimed in the suit is concerned, Mr. M. Narender Reddy, learned
counsel for the bank, placed reliance upon a decision of the Supreme Court in
STATE BANK OF INDIA v. YASANGI VENKATESWARA RAO2 and it is contended that
entering into a mortgage is a matter of contract between the parties and if the
parties agree that in respect of the amount advanced against a mortgage compound
interest will be paid, the Court cannot interfere and reduce the amount of
interest agreed to be paid on the loan so taken. Learned counsel, therefore,
submits that considering Section 21-A of the Banking Regulation Act, the Supreme
Court held that charging compound interest as per the agreement cannot be said
to be excessive and cannot be reduced.
23. Per contra, learned counsel for the borrower placed strong reliance upon a
decision of the Supreme Court in N.M. VEERAPPA V. CANARA BANK3, which held
that the Court has discretion under Order 34 Rule 11 of the Code of Civil
Procedure, 1908, to order payment of interest at a rate lower than the
contractual rate.
The provisions of Section 21-A of the Banking Regulation Act were also
considered in the aforesaid decision but it was held that the said provision
does not intend to override CPC and particularly, Order 34 Rule 11 CPC. Hence,
the power of the civil Court to reduce the rate of interest from the date of
suit is not affected.
In furtherance of the said proposition, the learned
counsel submits that the borrower has been bonafide and he had paid EMI's
regularly from 01.04.1996 to 01.05.2000, as admitted by P.W.1. In addition, the
borrower paid Rs.1,28,900/- between 20.10.1997 and 04.05.2000 and in addition
thereto, further sum of Rs.24,500/- was paid after filing of the suit.
All this, therefore, shows that the borrower has been fair while dealing with
the bank but the appellant-bank has not been equally fair to the borrower.
Learned counsel, therefore, submits that the trial Court exercised discretion
under Order 34 Rule 11 CPC and granted simple interest at 12%. He, therefore,
urges that this Court would not interfere with that part of the discretion
exercised by the trial Court looking at the bonafides of the borrower.
24. Undoubtedly, the Supreme Court in N.M. VEERAPPA's case
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.
Point No.2 is accordingly answered against the appellant-bank.
25. In the result, the decree of the trial Court stands modified as under:
1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.
2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.
3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003.
The appeal is accordingly allowed in part. As a sequel,
the miscellaneous applications, if any, shall stand dismissed.
There shall be no order as to costs.
____________________
VILAS V. AFZULPURKR, J
September 4, 2013
Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:
"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...
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, 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."=
State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower.
Claiming that the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.
Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.=
After passing of final decree also , an Appeal is maintainable over the preliminary decree =
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13.
21. As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.
Undoubtedly, the Supreme Court in N.M. VEERAPPA's case
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.
Point No.2 is accordingly answered against the appellant-bank.
25. In the result, the decree of the trial Court stands modified as under:
1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.
2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.
3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003.
The appeal is accordingly allowed in part.
THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR
APPEAL SUIT No.176 OF 2004
Dated :04-09-2013
State Bank of India Settipalle Branch, Tirupati, Chittoor District, Rep. by its
Chief Manager...... Appellant
P. Veeranarayana, S/o.P.Veeraswamy Naidu, Hindu, aged about 49 years, Occ:
Business, Managing Director o M/s.Siubar Auto Parts Limited, Sattipalle,
Tirupati...... Respondent
Counsel for Appellant: Mr. M. Narender Reddy
Counsel for Respondent:Mr. T.V.L. Narasimha Rao
<GIST :
>HEAD NOTE :
?Cases referred :
1. AIR 1967 SC 1236
2. AIR 1999 SC 896
3. (1998) 2 SCC 317
The Court made the following: -
JUDGMENT:
State Bank of India, which is plaintiff in O.S.No.25 of 2000 on the file
of the III Additional District Judge, Tirupati, has filed this appeal to the
extent of disallowed claim by the trial Court under judgment dated 22.03.2002.
2. State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower.
Claiming that
the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.
3. I have heard Mr. M. Narender Reddy, learned counsel for the bank and Mr.
T.V.L. Narasimha Rao, learned counsel for the borrower. Both the learned counsel
have elaborately made submissions with reference to their respective claim on
the basis of documents,
which primarily comprise of statement of accounts, exhibited in the suit. The
bank as well as the borrower have produced additional documents requesting to
receive them as additional evidence, reference to which would made at an
appropriate place.
4. Before going into the merits of the claim of the bank in the appeal, it is
necessary to deal with a preliminary objection of maintainability of the appeal
raised by the borrower.
PRELIMINARY OBJECTION:
5. Mr. T.V.L. Narasimha Rao, learned counsel for the borrower, contended that
the present appeal is filed against the preliminary decree granted by the trial
Court on 22.03.2002 in the mortgage suit aforesaid. Based on the said
preliminary decree the bank has filed an application for grant of final decree
in I.A.No.1478 of 2002 on 07.10.2002 requesting the trial Court to pass a final
decree in terms of the said preliminary decree on the ground that the redemption
was not availed by the borrower. The said final decree application was allowed
by the trial Court by passing a final decree dated 07.08.2003. Learned counsel,
therefore, states that, in the meanwhile, the bank had filed the present appeal
on 24.06.2002 questioning the preliminary decree and that the filing of the
final decree application and passing of the final decree was never disclosed
while filing the present appeal. Learned counsel also submits that though this
appeal was filed on 24.06.2002, it was retuned with certain office objections on
06.08.2002 but was not represented within time and the application seeking
condonation of delay of 1196 days in representing the appeal in CMP.No.22784 of
2003 was ordered only on 07.01.2004 and it is only thereafter the appeal was
numbered and admitted on 28.06.2004 and only thereafter notice in this appeal
was served on the borrower.
6. Learned counsel for the borrower, therefore, submits that having accepted
the preliminary decree, which is impugned herein and having sought a final
decree to be passed in pursuance thereafter and having secured a final decree as
early as on 07.08.2003, the bank is estopped from pursuing this appeal against
the preliminary decree,
as it cannot be allowed to blow hot and cold. Learned counsel, further, submits
that the filing and prosecution of this appeal by the bank is also not bonafide,
as they never disclosed filing of this appeal in the application filed by them
for final decree. Thus, in view of passing of the final decree, the preliminary
decree merges in the later decree and on that ground also the present appeal is
not maintainable.
7. Mr. M. Narender Reddy, learned counsel for the bank, submits that there is
no impediment for maintainability of the present appeal inasmuch as this appeal
was presented on 24.06.2002 long before the final decree application was filed.
Learned counsel submits that,
no doubt, there was delay in representing the appeal when the office raised
objections but since the said delay was condoned, the time for representation
stands extended and thereafter, the appeal has been duly numbered and admitted.
Learned counsel submits that even though the bank is aggrieved to the extent
disallowing of its suit claim in entirety, while passing the preliminary decree,
to the extent of the decreed suit claim there was no impediment for the bank in
seeking final decree. Learned counsel also submits that if the bank waited for
the result of this appeal, it could not have recovered even the suit claim
covered by the preliminary decree and there was no reason,
in law, disabling the bank from seeking final decree on the basis of preliminary
decree pending appeal against the preliminary decree. Learned counsel relied
upon a decision of the Supreme Court in
SITAL PERSHAD v. KISHORI LAL1 which has considered similar question and held
that, in such circumstances, the appeal is maintainable.
8. In order to decide the said preliminary objection, it would be appropriate
to notice the relevant facts in the aforesaid decision.
The appellant before the Supreme Court suffered a preliminary decree in a
mortgage suit. However, the interest, as claimed by the respondent, was not
decreed and to that extent, the respondent had filed an appeal before the High
Court. Meanwhile, the respondent applied for passing of final decree, which
application was allowed and thereafter, the respondent took out the execution of
the said final decree. Meanwhile, the appeal filed by the respondent to the
extent of disallowed claim, was allowed by the High Court. Based on the said
subsequent event, the appellant objected to the execution of final decree
earlier passed in view of subsequent modification of preliminary decree. The
executing Court, however, rejected the said objection and out of that the matter
reached the Supreme Court. The Supreme Court held at para 5 as under:
The question before us in the present appeal therefore is which of these two
views is correct. Before we consider this question we may state certain well-
settled propositions with respect to preliminary and final decrees in mortgage
suits and the effect of an appellate decree in general on the decree of the
trial court. Generally speaking, the decree of the appellate court supersedes
the decree of the trial court even when it confirms that decree and therefore it
is well-settled that only the appellate court can amend the decree thereafter:
[see Muhammad Sulaiman Khan v. Muhammad Yar Khan (1888) ILR All 267 (FB)]. It is
equally well-settled that where an appeal has been taken from a preliminary
mortgage decree and is decided, the time for preparation of final decree is
three years from the date of the appellate decree even though the appellate
court may not have extended the time for payment provided in the preliminary
decree, where no final decree has been prepared in between : see Jowad
Hussain v. Gendan Singh, 53 Ind App 197 : (AIR 1926 PC 93). This applies even to
a case where the decree of the appellate court is made more than three years
after the time fixed for payment in the preliminary decree :
[see Fitzholmes v.
Bank of Upper India, 54 Ind App 52 : (AIR 1927 PC 25). Further it is well-
settled that the mere fact that there is an appeal from a preliminary decree
does not oust the jurisdiction of the trial court to prepare a final decree even
while the appeal is pending unless there is a stay order :
[see Sat Prakash v.
Bahal Rai ILR 53 All 282 : (AIR 1931 All 386 (FB)]. Even if a final decree has
been passed an appeal from a preliminary decree is not incompetent and it is not
necessary for a party to appeal both from the preliminary decree and the final
decree in order to maintain his appeal against the preliminary decree.
In such a case where the preliminary decree is set aside the final decree is
superseded whether the appeal is brought before or after the passing of the
final decree :
[see Talebali v. Abdul Aziz, ILR 57 Cal 1013 : (AIR 1929 Cal 689
(FB)]. Further it was observed in the last case that where an appellate court
sets aside or varies a preliminary decree it can, and indeed could, give
direction for the setting aside or varying of the final decree, if the
existence of the final decree is brought to its notice as in all cases it ought
to be."
[Emphasis supplied]
The legal position, therefore, is conclusively answered by the aforesaid
passage, particularly, the emphasized portion and in view of that the
preliminary objection raised by the learned counsel for the borrower is liable
to be rejected and is accordingly rejected.
9. The brief facts of the case are as follows:
(a) As stated above, the bank had sanctioned a housing loan for Rs.7 lakhs
to the borrower but the actual amount disbursed was
Rs.5.5 lakhs. The said amount was repayable in 168 monthly installments at
equated monthly installments (EMI) of Rs.7,150/- per month with effect from
31.03.1996. It is pleaded in the plaint that to secure such loan with interest
at 17.25% with quarterly rests, agreed upon, the borrower created an equitable
mortgage by deposit of title deeds. As per the terms of the loan, when the
outstanding against loan was not paid in spite of repeated demands, a legal
notice, Ex.A7 dated 16.06.2000, was issued and served on the borrower under
acknowledgment, Ex.A8 and thereafter, the present suit was filed on 23.07.2000.
(b) The borrower filed a written statement denying the suit claim and
disputed the amount claimed, as outstanding. It was also stated that the EMI's
were paid by the borrower and recovered and
in fact, from October 1998 onwards the borrower paid ad hoc amounts of
Rs.14,000/- per month to clear off the loan at an early date.
It is also stated that though the legal notice was replied under reply dated
03.07.2000, the suit is filed without referring thereto.
The borrower had also claimed that he had paid excess amount on Rs.1.04 lakhs,
as such, the suit claim is not tenable and there is no cause of action for the
suit.
10. On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the defendant availed loan of Rs.5,50,000/- from the plaintiff bank
and agreed to pay the amount in 180 equal monthly installments and executed term
loan agreement on 31.3.95 and a letter dt.31.3.95?
2. Whether the defendant deposited title deed and created an equitable mortgage
and executed From A letter of deposit of title deed on 3.4.95 in favour of
Plaintiff Bank?
3. Whether the defendant executed a revival letter on 28.1.98 acknowledging his
liability and whether the suit is within limitation?
4. Whether the defendant paid the amount to the plaintiff as per the E.M.I fixed
by the Plaintiff?
5. To what relief?
11. On behalf of the bank, P.W.1, Assistant Manager of the Bank was examined
whereas the borrower examined himself as D.W.1.
On behalf of the bank, the loan documents were marked as Exs.A1 to A13 whereas
no documentary evidence is produced and marked on behalf of the borrower.
12. While answering issues 1, 2 and 3 in favour of the bank,
the trial Court has recasted issue No.4. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.
13. Based on the aforesaid, the points for consideration in the appeal are:
1. Whether the finding of the trial Court in not accepting Exs.A6 and A13 is
justified?
2. Whether denying contractual rate of interest in a suit for mortgage is
justified?
14. Before answering the questions, as above, it is necessary to deal with
ASMP.No.1685 of 2013, filed by the borrower, requesting this Court to receive
the Recalculated Housing Loan Account Statement; Recast Notional Housing Loan
Arrears Account and Letter dated 23.04.2013, as additional evidence. The
documents filed along with the said application and letter received by the
borrower under the Right to Information Act, are, therefore, sought to be filed
as additional evidence. So far as the account statement calculated by the
borrower is concerned, apparently, it is a self-serving document,
for the statement is signed by the borrower and his counsel. In law, therefore,
such self-serving calculation sheet, as against the claim of the bank based on
certified account statement cannot be sustained. The said statement of accounts
described as recalculated housing loan account statement and recast notional
housing loan arrears account have no evidentiary value and cannot be received in
evidence.
Further, the letter of the bank issued to the borrower counsel under RTI Act
merely gives details of loan disbursed date-wise and the payment made by the
borrower date-wise are of no assistance, as all those aspects are not in
controversy. I am, therefore, not inclined to order the said application and the
same is accordingly dismissed.
15. Similarly, the appellant-bank had filed ASMP.No.2343 of 2004 requesting
the Court to receive the consolidated statement of account as additional
evidence. It is stated that the said consolidated statement is prepared merging
Exs.A6 and A13 and the said statement is signed by the Chief Manager of the
Bank. Firstly, the said document is prepared by, allegedly, consolidating
Exs.A6 and A13 and as such, the said document is not a statement of account
maintained by the bank in usual course of business nor the said document is
certified as required under Section 3 of the Banker's Books Evidence Act and as
such, the said document is also not admissible. The miscellaneous petition is
accordingly rejected.
POINT No.1:
16. A look at the pleadings of the parties would show that there is no
controversy with regard to raising of the loan, its quantum, equitable mortgage
and the terms and conditions of the said loan. Ex.A12 filed on behalf of the
bank contains the terms and conditions of the said loan dated 22.05.1995 and
under Ex.A5, admittedly,
the borrower has given letter of revival of the said loan on 21.01.1998.
Further, the said claim is based on Ex.A6, ledger extract and Ex.A13, copies of
arrears account. I have seen the original documents, both of which have been
certified as required under the Bankers Book of Evidence Act. In the absence of
any rebuttal evidence, therefore,
a statutory presumption arises in support of the said two documents with respect
to the correctness of entries therein.
17. Learned counsel for the respondent, however, disputed the very document
Ex.A13 by contending that the said document was not referred to in the pleadings
nor filed along with plaint but has been filed subsequently when P.W.1 was being
examined. According to the learned counsel, there cannot be two separate
accounts maintained by the bank and according to him, Ex.A6 alone reflects the
true accounts position and no reliance can be placed on Ex.A13.
18. Learned counsel for the bank, however, submits that both the said accounts
are required to be maintained by the bank as per instructions of the Reserve
Bank of India and for every loan account, the arrears account and the ledger
account are separately maintained and he submits that though the plaint, by
mistake, does not refer to Ex.A13, that by itself is no ground to reject the
said document.
19. It is not in dispute that the suit claim of the bank is based upon Exs.A6
and A13 and P.W.1 states in his evidence that 'Each loan account of our bank
will be maintained under two separate heads,
for the convenience of computer processing. Under the first head all the
disbursements made to the borrower by the Bank will be shown.
In the other head, amounts due by the borrower, monthly installments due and
interest accrued thereon will be shown ... The amount shown under Ex.A13 is
reflected under Ex.A6 already. In Ex.A6 the schedule repayable amounts are only
shown by way of installment. But they are not actual payments, made by the
defendant. In Ex.A6, the actual amount due on 23.07.2000 (date of suit) is
shown. Subsequent to, the filing of the suit defendant paid an amount of
Rs.24,500/- in two installments and plaintiff has no objection for deducting
that amount from the suit amount". A suggestion given to P.W.1 may also be
noticed, which says, "It is not true to say that Ex.A13 does not reflect true
facts as we have not produced the original ledgers before the Court." In this
context, defendant, D.W.1, states in cross-examination dated 17.04.2011 as
follows: "The payment made by me mentioned in the ledger, are correct. A6 is the
ledger extract". Regarding Ex.A3, however, he did not make any statement.
20. Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:
"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...
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, 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."
From the above, it would be clear that there is no rebuttal evidence on
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13.
21. As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.
Point No.1 is accordingly answered in favour of the appellant.
Point No.2:
22. With regard to the claim for interest by the bank, as per the contractual
rate, as claimed in the suit is concerned, Mr. M. Narender Reddy, learned
counsel for the bank, placed reliance upon a decision of the Supreme Court in
STATE BANK OF INDIA v. YASANGI VENKATESWARA RAO2 and it is contended that
entering into a mortgage is a matter of contract between the parties and if the
parties agree that in respect of the amount advanced against a mortgage compound
interest will be paid, the Court cannot interfere and reduce the amount of
interest agreed to be paid on the loan so taken. Learned counsel, therefore,
submits that considering Section 21-A of the Banking Regulation Act, the Supreme
Court held that charging compound interest as per the agreement cannot be said
to be excessive and cannot be reduced.
23. Per contra, learned counsel for the borrower placed strong reliance upon a
decision of the Supreme Court in N.M. VEERAPPA V. CANARA BANK3, which held
that the Court has discretion under Order 34 Rule 11 of the Code of Civil
Procedure, 1908, to order payment of interest at a rate lower than the
contractual rate.
The provisions of Section 21-A of the Banking Regulation Act were also
considered in the aforesaid decision but it was held that the said provision
does not intend to override CPC and particularly, Order 34 Rule 11 CPC. Hence,
the power of the civil Court to reduce the rate of interest from the date of
suit is not affected.
In furtherance of the said proposition, the learned
counsel submits that the borrower has been bonafide and he had paid EMI's
regularly from 01.04.1996 to 01.05.2000, as admitted by P.W.1. In addition, the
borrower paid Rs.1,28,900/- between 20.10.1997 and 04.05.2000 and in addition
thereto, further sum of Rs.24,500/- was paid after filing of the suit.
All this, therefore, shows that the borrower has been fair while dealing with
the bank but the appellant-bank has not been equally fair to the borrower.
Learned counsel, therefore, submits that the trial Court exercised discretion
under Order 34 Rule 11 CPC and granted simple interest at 12%. He, therefore,
urges that this Court would not interfere with that part of the discretion
exercised by the trial Court looking at the bonafides of the borrower.
24. Undoubtedly, the Supreme Court in N.M. VEERAPPA's case
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.
Point No.2 is accordingly answered against the appellant-bank.
25. In the result, the decree of the trial Court stands modified as under:
1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.
2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.
3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003.
The appeal is accordingly allowed in part. As a sequel,
the miscellaneous applications, if any, shall stand dismissed.
There shall be no order as to costs.
____________________
VILAS V. AFZULPURKR, J
September 4, 2013
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