ICICI Bank Ltd. vs Vijay Singh Rana

Ranjit Singh, J

The Tribunal below has dismissed the O.A. filed by the appellant Bank on the ground of limitation holding that the O.A. was barred by limitation. Aggrieved against the same, the appellant Bank has filed the present appeal. The appellant Bank had filed this O.A. seeking recovery of Rs. 26,59,178. The case pleaded by the Bank was that it had advanced a loan of Rs. 16.50 lacs to the respondent by way of overdraft facility as per credit arrangement letter dated February 9, 2006 for a period of 12 months starting from 8th February, 2006 upto 9th February, 2007. On request of the respondent, this overdraft facility was extended from time to time as per the terms and conditions in the credit arrangement letter. Rate of interest was also agreed between the parties.

When the respondent failed to repay the amount, the Bank served a legal notice on June 27, 2012 calling upon the respondent to pay a sum of Rs. 26,59,178. 12 with interest @ 12.50% p.a. with costs.

The respondent filed a written statement raising dispute about the deposit shown to have been made on 29.8.2008, 29.12.2009, 31.12.2009 and 7.1.2010. As per the respondent, these entries contained in the statement of account were false and fabricated. As per the statement of account, the respondent had made a deposit of Rs. 16,25,524.94 on 29.08.2008. The respondent was also shown to have made deposit of Rs. 5 lacs on 29.12.2009, Rs. 50,000/- on 31.12.2009, Rs. 75,800/- and Rs. 5.50 lacs on 7.1.2010, The Bank had filed replication denying the allegations made in the written statement.

The respondent was declared ex-parte on July 30, 2013 and even ex-parte judgment allowing the O.A. was passed on 20th August, 2013. The respondent, however, filed an application seeking setting aside of this ex-parte judgment. The said application however, was dismissed against which the respondent filed an appeal before this Tribunal. This appeal was allowed on December 15, 2014 and the case was remanded back to the Tribunal below. Now the Tribunal below has held this O.A. to be barred by limitation and has accordingly dismissed the same.

Counsel for the appellant would submit that the Tribunal below has unnecessarily and without justification doubted the entry showing payment made by the respondent on 29.12.2009, 31.12.2009 and 7.1.2010. The Counsel would contend that the bald assertion that these entries are false or fabricated has been believed doubting the statement of account without any justification. The Counsel for the appellant would contend that entry of payment made on 7.1.2010 was by way of cheques. The Counsel would submit that the respondent had not disputed the issuance of cheques, but had pleaded that this was given as a security. Except for asserting that these cheques were given as a security, the respondent did not lead any evidence in this regard.

The Counsel for the appellant would also contend that the Tribunal below has unjustly disbelieved the statement of account which was validly proved. On the other hand, Counsel for the respondent would rely upon cross-examination of the Bank witness which was allowed by the Tribunal below to urge that the Bank had failed to prove payment by providing sufficient proof in this regard.

I have considered the submissions made before me. The Tribunal below had earlier allowed this S.A. ex-parte when the respondent after filing written statement and completion of pleadings had stopped appearing before the Tribunal below. While allowing the O.A. ex-parte on 20th August, 2013 the Tribunal had also considered the objection raised by the respondent that this O.A. was barred by limitation. This was one of the issues struck by the Tribunal below. On this issue, the Tribunal below spoke as under in order dated 20th August; 2013:

"Availing of the credit facility is not disputed by the defendant in his written statement. The defendant has taken a contention that the application is barred by limitation. The credit facility was availed by executing document on 16.2.2006 as per AW-1/2 Master Facility Agreement. AW-1/5 is the Statement of Account. It is a running mutual operative current account. There was payment of Rs. 50,000/- on 29.12.2009, Rs. 50,000/- on 31.12.2009, Rs. 75,800/- on 7.1.2010. In relation to these entries the contention of the defendant in the written statement is that there was no payment by him on these days. But this contention in the written statement is not spoken to by him on affidavit by way of evidence before this Tribunal and the pleadings cannot be relied upon. There are no reverse entries with regard to these three entries. There were previous entries also from the very same source, for example, on 29.6.2009. Thus, the genuineness on these entries can never be doubted. There was payment into the account on 31.12.2009. The application has been filed on 14.9.2012. Therefore, the application is within the period of limitation. Further, the loan was recalled by legal notice dated 27.6.2012 within three years the application is filed and in that sense as well, the application is within the limitation."

Thus, the relying on these entries dated 29.12.2009, 31.12.2009 and 7.1.2010 the Tribunal has held that the O.A. was filed within a period of limitation. In this order, the Tribunal has further observed that the Bank had recalled the loan by serving legal notice on June 27, 2012 and, thus, the O.A. filed was within a period of three years. While taking these entries relied upon by the Bank, the Tribunal had observed that genuineness of these entries cannot be doubted. For this purpose, the Tribunal had made reference to the previous entry also from the same source and as an example has made reference to entry dated 26th June, 2009. Contrary to this finding, the Tribunal below now has discarded these entries as not reliable on the ground that counter-slip of remittance has not been produced before the Tribunal to show that the respondent, in fact, had made these payments. The Tribunal has observed that once there was a dispute, the appellant Bank should have produced documents like deposit slip to prove this remittance.

The approach adopted by the Tribunal below in doubting the entries now may not stand the test of judicial scrutiny. Section 4 of the Bankers' Book Evidence Act provides that, a certified copy of an entry in a Bankers' 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, transaction and accounts therein recorded in every case where, and to the same extent as original entry itself is now by law admissible. Under this section, the copy of accounts certified in accordance with Section 2(8) of the Act is prima facie evidence and does not require proof by production by cheques and vouchers etc. relating to each entry. Such a copy must be received as prima facie evidence not only of existence of such entries but also of the matters, transactions and accounts therein recorded. Certified copies of entries may not be sufficient to charge a person with liability but where the claim of the Bank is corroborated amply by the statement of accounts and oral evidence, it would be sufficient to charge the debtor with liability. It may be of importance to notice here that the respondent has not denied the liability of loan. There is nothing to show that the books of accounts were not properly kept. Such entries can certainly be relied on to fasten liability.

Against this position, respondent had only made a bald denial that he had not made these payments. The Tribunal below failed to notice that some entries were consequent to the cheques issued by the respondent and that the respondent had not disputed existence of the cheques as such, but had explained the same by stating that these cheques were issued as a security. The Tribunal below has observed that the evidence of the appellant and the respondent was "oath against oath". The Tribunal below, in my view, has failed to appreciate that it is required of Courts and Tribunals to separate grain from chaff, truth from falsehood where truth is separable from falsehood. It is not that type of a case where truth is so intermingled as to make it impossible to separate it from falsehood.

Placing implicit reliance on the evidence coming before the Tribunal through cross-examination and giving undue weight to it, the Tribunal below has decided the issue. The evidence coming on record through cross-examination is reproduced in the impugned order. The witness produced by the Bank during his cross-examination had answered that the cash amount was usually deposited through deposit-slip and the deposit-slip used to be stamped and signed by the Bank official. This was truthful account of the procedure adopted by the Bank. The witness again was truthful when he replied that he did not personally verify from the Bank as to who had made the deposit of Rs. 50,000/- each by cash on 29th & 31st December, 2009. This evidence cannot be read that there was no deposit made on these dates. Entries in the Statement of Account were produced before the Tribunal below, which were sufficient to prima-facie show that the deposits were made in the said account. A sum of Rs. 5.50 lacs has been deposited in the account of the respondent through a cheque issued by Mr. Bhopal Singh Negi. This amount was transferred to the account of the respondent on the same date. The witness again truthfully answered that he did not know who Mr. Bhopal Singh Negi was. He also rightly answered that he had no personal knowledge about the account of Mr. Bhopal Singh Negi. From this, the Tribunal below has construed that this witness had no personal acknowledgement of the entries available in the account. From this deposition, it cannot be construed that the deposits were not made. This finding by the Tribunal apparently is against the weight of evidence available on record.

While passing the order on 20th August, 2013 the Tribunal below has already taken note of the legal notice issued by the Bank for recall of the loan amount which was also taken into consideration while considering the plea of limitation raised by the respondent. The Tribunal below has unfairly placed burden on the appellant to observe that the Bank should have produced the deposit-slips. Once the Bank had led evidence to show that these deposits were made and since the respondent had raised a dispute, the burden shifted on to the respondents to prove that these deposits entries were fabricated. There is virtually no evidence led in this regard except for bald assertion. The Tribunal ought to have appreciated that the Bank had already led its evidence and on the basis of pleadings and evidence led by the parties, the O.A. had been allowed. This O.A. was taken up for consideration when ex-parte order allowing the O.A. was set aside. Subsequently, the Tribunal below had allowed the prayer of the respondent to cross-examine the Bank witness. While under cross-examination, the witness could not be expected to produce or lead evidence. The witness was questioned about the manner of deposit of the amount and the preparation of deposit-slips which he had answered. The witness was never asked to peruse the record and produce deposit-slips. Even in the absence of deposit-slips, entries in the Statement of Account could not be doubted simply because the respondent was denying payment. Bald statement of the respondent has been given preference over the record maintained by the Bank in normal course of official business. The documents prepared by the Bank specially like summary of the Statement of Account etc. are prepared in the normal course of business and are evidence of the transactions in terms of Bankers' Book Evidence Act. Bank could not be expected to make record of entries in the year 2009 and then in the year 2010 to allege that this was done to file the O.A. in the year 2012. No Bank official would have any personal interest to manipulate or fabricate such entries 2 or 3 years prior to the filing of the O.A. This was required to be appreciated in the background that one of the entries related to a cheque issued which is explained as being a cheque given for the purpose of security. I am, thus, of the view that the Tribunal below has not correctly appreciated the evidence to doubt the entries. In view of the payment entries dated 29.12.2009, 31.12.2009 and 7.1.2010, the O.A. filed was well within time and cannot be said to be barred by limitation. The order passed by the Tribunal below, therefore, cannot be sustained and is set aside. The present appeal is allowed. Case is remanded back to the Tribunal below for deciding the O.A. on merits. Parties through their Counsel are directed to appear before the Tribunal below on 11th February, 2016.