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Ganpati Udyog and anr. Vs. Punjab National Bank and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Banking
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 4061 of 1995 and Civil Misc. No. 11862-CII of 1995
Judge
Reported in(1996)113PLR437
ActsBankers Books Evidence Act, 1891 - Sections 4; Code of Civil Procedure (CPC) , 1908 - Order 18, Rules 12A and 17A - Order 41, Rule 27
AppellantGanpati Udyog and anr.
RespondentPunjab National Bank and ors.
Appellant Advocate R.S. Mittal, Sr. Adv. and; S.P. Kaur, Adv.
Respondent Advocate H.N. Mehtani, Adv. for Respondent No. 1
DispositionRevision dismissed
Cases ReferredRam Gopal Banarsi Dass v. Satish Kumar and Anr. (supra
Excerpt:
.....it is well settled principle that before permission under order 18, rule 17-a of the code of civil procedure is granted, the party seeking admission of additional evidence should show to the court that it could not produce such evidence despite its best efforts or that the evidence was not in its knowledge. there may well be cases where even though the court finds that it is able to pronounce the judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. learned additional district judge was convinced of the fact that..........rohtak, whereby an application filed by the plaintiff-respondent under order 41, rule 27 of the code civil procedure has been allowed and it has been permitted to produce the statement of account relating to the petitioners.2. punjab national bank filed a suit on 2.12.1987 against the defendant- petitioners for recovery of rs. 3,78,747.89 with the allegation that the defendants failed to repay the three loans advanced to them. during the pendency of the suit an application was filed by the respondent for permission to produce additional evidence in the form of statement of account. this application came to be dismissed by the senior sub judge, rohtak, on 18.5.1993 on the ground that the same had been filed after hearing of the arguments and that such application was not maintainable......
Judgment:

G.S. Singhvi, J.

1. This revision petition has been filed against the order dated 30.10.1995 passed by the Additional District Judge, Rohtak, whereby an application filed by the plaintiff-respondent under Order 41, Rule 27 of the Code Civil Procedure has been allowed and it has been permitted to produce the statement of account relating to the petitioners.

2. Punjab National Bank filed a suit on 2.12.1987 against the defendant- petitioners for recovery of Rs. 3,78,747.89 with the allegation that the defendants failed to repay the three loans advanced to them. During the pendency of the suit an application was filed by the respondent for permission to produce additional evidence in the form of statement of account. This application came to be dismissed by the Senior Sub Judge, Rohtak, on 18.5.1993 on the ground that the same had been filed after hearing of the arguments and that such application was not maintainable. Thereafter, a preliminary decree was passed by the learned Senior Sub Judge for recovery of Rs. 2,91,828.84 in favour of the respondent-bank. Dissatisfied with the preliminary decree, the plaintiff-respondent filed an appeal and also moved an application under Order 41, Rule 27 of the Code of Civil Procedure for permission to produce additional evidence. This application has been accepted by the learned Additional District Judge.

3. Shri R.S. Mittal, Senior Advocate, appearing for the petitioners argued that after dismissal of the application filed under Order 18 Rule 17-A of the Code of Civil Procedure, the appellate Court could not' entertain and allow the application filed by the respondent under Order 41 Rule 27 of the Code of Civil Procedure. Learned counsel argued that the order dated 18.5.1993 passed by the Senior Sub Judge acquired finality because the same was not challenged in revision petition and in view of this legal position, the appellate Court ought to have rejected the application filed by the respondent under Order 41 Rule 27 of the Code of Civil Procedure. Shri Mittal further argued that the appellate Court has failed to take note of the contradictory statements given by the plaintiff-respondent in the two applications. According to the learned counsel, before the trial Court the respondent had given reason for non-production of the statement of account as inadvertence but before the appellate Court the failure of the counsel to produce the statement of account has been advanced as the reason for permission to produce additional evidence. Learned counsel relied on the judgments of this Court in Madan Mohan Aggarwal v. Smt. Mansadevi and Ors., (1985-2) 88 P.L.R. 206 ; Ram Gopal Banarsi Dass v. Satish Kumar and Anr., (1990-2) 98 P.L.R. 277; Sat Pal v. Ram Kumar and Ors., (1992-2) 98 ; Smt. Chhotu v. Bijinder Kumar and Ors., 1994 P.L.J. 241, and a judgment of the Supreme Court in Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors., A.I.R. 1976 S.C. 1053.

4. Shri Mehtani, learned counsel for the respondent-Bank argued that the document sought to be produced in the form of additional evidence is a statement of account prepared Under Section 4 of the Banker's Book Evidence Act 1891 (for short, the Act) which is maintained by the Bank in the regular course of its business and, therefore, there could be no objection to the production of the statement of account, particularly when it related to the petitioners. He strenuously argued that the trial Court was wrong in rejecting the application filed by the respondent under Order 18, Rule 17-A of the Code of Civil Procedure and, therefore, the learned Additional District Judge has done nothing wrong in exercise of his discretion to accept additional evidence.

5. Order 18 Rule 17-A and Order 41 Rule 27 of the Code of Civil Procedure read as under :-

'Order 18 Rule 17-A:- Production of evidence not previously known or which could not be produced despite due diligence.-Where a party satisfies the Court that after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading evidence the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.

Order 41 Rule 27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate court, the Court shall record the reason for its admission.'

6. The ambit and scope of these two provisions have been considered by the Supreme Court and by various High Courts in different decided cases. It is well settled principle that before permission under Order 18, Rule 17-A of the Code of Civil Procedure is granted, the party seeking admission of additional evidence should show to the Court that it could not produce such evidence despite its best efforts or that the evidence was not in its knowledge. Permission to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure can be granted by the Court only on satisfaction of the condition enumerated in clause (aa) of Rule 27(1) of Order 41 of the Code of Civil Procedure. However under clause (b) of Order 41 Rule 27(1), the Appellate Court can allow such evidence or document to be produced which the appellate Court requires in order to enable it to pronounce the judgment or requires it for any other substantial cause.

7. In Amar Singh and Anr. v. Sheo Narain and Ors., 1993 P.L.J. 11, a Division Bench of this Court held that the additional evidence can be allowed if required by the Court to pronounce the judgment or to further substantial cause. In that case, the court allowed the plaintiff-respondent to produce copy of the order dated 14.10.1988 passed by the Collector, Rewari by observing that the said document was required for doing full justice.

8. In Telu Ram Jain v. Aggarwal Sons, (1991-2) 100 P.L.R. 214, a learned single Judge of this Court took the view that the Appellate Court can permit production of the certificate of registration of the partnership firm where the suit had been dismissed on the technical ground of non-registration of the plaintiff.

9. In Kishan and Anr. v. Narain Dass and Ors., A.I.R.1989 P & H 267, a learned single Judge gave a wider interpretation to order 41 Rule 27(l)(bb) of the Code of Civil Procedure when he observed:-

'Rule 27 of Order 41 of the Code of Civil Procedure, the appellate Court can receive additional evidence not only when it requires such evidence to enable it to pronounce the judgment but also for any other substantial cause. There may well be cases where even though the Court finds that it is able to pronounce the judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce the judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.'

10. In Wasawa Singh Bhagat Singh v. Jagir Singh Hira Singh and Anr., A.I.R. 1965 Punjab 494, a learned single Judge of this Court held that the expression 'for any other substantial cause' in Cl. (b) of Rule 27 of Order 41 must be read with the word 'requires' in the beginning of the sentence. These words could not be construed in the narrow sense suggested by the doctrine of ejusdem generis. The discretion to allow additional evidence may be exercised when in the interests of justice, a point is required to be cleared up.

11. In Yudhister v. Ashok Kumar, A.I.R. 1987 S.C. 558, their Lordships of the Supreme Court upheld the action of the Appellate Court constituted under the Haryana Urban (Control of Rent and Eviction) Act 1973 to admit the additional evidence and observed that the Appellate Authority had the jurisdiction to admit additional evidence which was warranted by the facts and pleadings of the case.

12. In Muniyappa v. S.V. Ramakrishna, A.I.R. 1956 Mysore, 47, a Division Bench of Mysore High Court held that dismissal of the previous application for adducing additional evidence cannot be a bar to the order of remand directing the lower court to allow plaintiff to adduce additional evidence. The Division Bench further interpreted Order 41 Rule 27(b) of the Code of Civil Procedure and held as under :-

'Under Order 41 Rule 27 Clause (b), the appellate Court has jurisdiction and discretion to direct that additional evidence, either oral or documentary, be produced. Under this provision the admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The expression 'substantial cause' confers a wide discretion on the appellate Court to admit additional evidence when the ends of justice require it.'

13. In Union of India v. Angrup Thakur, A.I.R. 1969 Delhi 279, a Division Bench of Delhi High Court that the appellate court can admit official document delegating executive power of the Central Government to the State Government in the interest of justice.

14. In Hindustan Petroleum Corporation Ltd. v. R.P. Aggarwalla and Brothers (Pvt.) Ltd., A.I.R. 1986 Cal. 403, a Division Bench of Calcutta High Court held that there may be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner and such case will be covered by order 41 Rule 27(1) (b) of the Code of Civil Procedure.

15. In Thatithoi Chiru and Ors. v. Ningampao Kabui, (deceased by L. Rs.) and Ors., A.I.R. 1990 Gauhati 7, a learned single Judge of the Gauhati High Court held that a certified copy of the public document can be allowed to be adduced as additional evidence in appeal.

16. The scrutiny of the order passed by the learned Additional District Judge in the light of the above mentioned judgments shows that he has not committed any patent illegality pertaining to jurisdiction nor can it be said that he has acted with material irregularity. Shri Mittal's submission that the Appellate Court has ignored the contradictory plea raised by the respondent does appear to be attractive but in my opinion, there is no real in consistency in the stand taken by the respondent in its application under Order 18 Rule 17-A and the application under Order 41 Rule 27 of the Code of Civil Procedure. In both the applications the reasons given is nothing more than inadvertence on the part of the bank and the Advocate. The learned Additional District Judge in my opinion was fully justified in accepting the application for taking on record the statement of account which is required to be maintained by the Bank in accordance with the provisions of a Statute, namely, the Act.

17. Section 4 of the Act reads as under :-

'4. Mode of proof of entries in bankers' books-Subject to the provisions of this Act, a certified copy of any 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, transactions and accounts therein recorded in every -case where, and to the same extend as, the original entry itself is now by law admissible, but not further or otherwise.'

18. In Kalyan Lahiri v. The State, 1980 Crl. L.J. 484, a Division Bench of Calcutta High Court has held that where original scroll showing deposits by the Bank were not produced, the true copies of the original scroll certified by the competent bank authorities are admissible in evidence in view of the provisions contained in Section 4 of the Act.

19. In Sri Kumar Krishna Rohtaqi and Ors. v. State Bank of India and Ors., 1979 Tax. L.R. (NOC) 119, a Division Bench of Patna High Court held that where claim against the company was based on the entries in the books of account maintained by the bank, it was sufficient to annexed the copies of the accounts with the plaint and prima facie proof of the transaction can be inferred in view of Section 4 of the Act.

20. In United Industrial Bank Ltd. v. G.C. Dey, A.I.R. 1974 Cal. 151, a learned single Judge of the Calcutta High Court has interpreted Section 4 and held as under :-

'Where a plaintiff bank has produced a statement of account showing the amount due by the defendant and the statement of account was duly certified under the Act, the statement of account must be admitted as prima facie evidence of the fact that the amount was due and no further evidence is required to pass a decree against the defendant even though the defendant did not appear at the trial.'

21. It is, therefore, clear that by virtue of Section 4 of the Act, the statement of account is treated as a public document and the same is prima facie sufficient to prove the claim of the Bank. Therefore, by allowing the respondent to produce the statement of account the learned Additional District Judge has not committed any illegality.

22. Another important aspect of the matter which deserves to be taken note of is the larger public interest involved in such matters. The plaintiff-respondent is a public institution which deals with financial matters. The officers and the employees of respondent-bank are the trustees of the public fund and, therefore, each one of them is under a solemn duty to secure and safeguard the public money. Recent past has seen several scams involving officials of the banks in general and Public Sector Banks in particular. These financial institutions have suffered immensely due to acts of omissions and commissions of their officers and employees. Another factor which is responsible for causing losses to these public financial institutions is growing tendency amongst the people to take loans and not to repay the same. Huge business transactions are carried out on the basis of money advanced by public financial institutions but seldom the loan money is returned. This necessitates filing of suits and petitions by the bank and other financial institutions. Most of these cases are conducted without due care and diligence resulting in further losses to these institutions. At times, the officers and employees, high or low, of these public institutions connive with the private individuals to defeat the genuine and just cases. The present one is also a typical example of lack of care on the part of the officers of the bank, who did not bother to file even the statement of account alongwith the plaint. It is, indeed, unfortunate that during the pendency of the proceedings before the trial Court, the learned counsel did not realise the importance of the statement of account and did not call upon the concerned officers to produce the same. Learned Additional District Judge was convinced of the fact that substantial failure of justice would be occasioned if the statement of the account maintained by the Bank is not allowed to be produced. Precisely for this reason learned Additional District Judge observed that under Order 41 Rule 27 of the Code of Civil Procedure the Appellate Court can allow the additional evidence to be produced even in a case where the lower Court has refused to admit evidence which ought to have been admitted or the evidence which could not be produced by a party after due diligence. Rationale of the order passed by the Additional District Judge can be discovered from the following observations made by him :-

'There is no dispute about the fact that the statement of account is such a document which would be necessary for just decision of the case in order to know as to what amount is due from the defendants.'

23. In my opinion, there is no error in the impugned order requiring interference by this Court Under Section 115 of the Code of Civil Procedure. I am of the view that even if the case of the respondent may not be covered by order 41, Rule 27(1) (aa), the impugned order can be sustained with reference to Order 47 Rule 27(b) of the Code of Civil Procedure.

24. Before parting with the case, I would refer to the judgments of this Court on which Shri Mittal has placed reliance. ,

25. In Madan Mohan Aggarwal v. Smt. Mansadevi and Ors., (supra) this Court held that additional evidence cannot be allowed after conclusion of the arguments. The same view has been reiterated in Ram Gopal Banarsi Dass v. Satish Kumar and Anr. (supra). Of course, the learned Judge who decided the later case did not give his own reasons but simply followed the earlier judgment in. Madan Mohan Aggarwal's case.

26. In Sat Pal v. Ram Kumar (supra) the learned Single Judge followed the, decision in Madan Mohan Aggarwal's case and in Ram Gopal Banarsi Dass v. Satish Kumar and Anr. (supra), but expressed his reservation about the correctness of the view taken in Madan Mohan Aggarwal's case (supra). I too entertain serious doubts about the correctness of the proposition laid down in Madan Mohan Aggarwal's case. However, for the purpose of this case it is not necessary to deal with this aspect further because I am not called upon to make an adjudication on the legality or otherwise of the order passed by the learned trial Court rejecting the application filed by the plaintiff-respondent under Order 18 Rule 17A of the Code of Civil Procedure.

27. For the reasons mentioned above, the revision petition is dismissed.


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