JUDGMENT
P.K. Deb, J. (Chairperson)
This appeal has been preferred by the above named appellant-Bank against the judgment and order passed by the then Presiding Officer, DRT, Allahabad in T.A. No. 1063 of 2000, whereby and whereunder the recovery claim of the appellant-Bank has been dismissed.
The brief facts of the case are as follows:
1. On the basis of open, current and mutual account, the appellant-Bank filed a suit No. 172/95 on 13th February, 1995 before the Court of Civil Judge, Ghaziabad (U.P.) for recovery of Rs. 43,83,2737- together with pendente lite and a future interest @ 24.70/% per annum with quarterly rest and cost and it was further prayed that if the amounts are not being paid by the defendant-borrowers, the hypothecated goods and mortgaged property be sold. One Shri B.B. Talpatra was the proprietor of Talpatra Enterprises and he was enjoying various credit facilities from the appellant-Bank in the form of temporary overdraft and term loan taking credit, etc. He executed D.P. Note for Rs. 9.00 lacs on 14th June, 1979 and also executed several other documents as per Banking Rules for the purpose of securing the same loan and also executed revival documents on; sveral dates, last one being on 3rd July, 1992. The loan limit was increased to Rs. 11.00 lacs and further credit limit was also given to the extent of Rs. 5.00 lacs and in total the amount of loan went up to Rs. 20 lacs. Besides hypothecating the goods, there was also equitable mortgage created by deposit of title deeds in respect of two immovable properties; one situated at Ghaziabad while the other at Calcutta. The loan account of Mr. Talpatra became sticky and for liquidating the loan amount with permission of the Bank, the Calcutta property was sold but then also the loan amount could not be liquidated and amount of Rs. 43,83,2737- remained due for which legal notice was sent, but then it could be found that Mr. Talpatra had already died and then the suit was filed against the present respondents who happened to be the legal heirs of late Shri B.B. Talpatra. On summons being served, the defendant-respondents appeared and filed their written statement. They did not deny regarding taking of loan, etc. but their main contention was that they could not be held liable for the loans taken by the predecessors as no property, nothing of the sort had come to their hands as legal heirs from late Shri Talpatra. While the suit was proceeding, the Tribunal was set up as per RDDBFI Act, 1993 and ultimately when jurisdiction of U.P. came to DRT, Allahabad, the same was transferred to the DRT, Allahabad for disposal. It should be further mentioned here that during the last stage of adjudication of T.A. No. 1063 of 2000 (re-numbered after the suit was transferred to the Tribunal), a Tribunal was set up at Lucknow having jurisdiction of Ghaziabad, but such notification being stayed by the Hon’ble High Court of Allahabad, the Original Application was adjudicated and finally disposed of by the impugned order by the then Presiding Officer Mr. A.S. Choudhary of D.R.T., Allahabad. In the impugned judgment, it has been held by the learned Tribunal that although specific denial was not there by the defendants in respect of the loan and the accounts submitted regarding the loan accounts by the appellant Bank, but such documents and accounts of the loan had not been proved by adducing evidence from the side of the appellant-Bank and hence claim has been dismissed as a whole. Hence the present appeal.
2. Only point in this appeal is as to whether the Presiding Officer, DRT, Allahabad had committed error in dismissing the whole claim of the appellant-Bank for non-producing of evidence, when the loans taken and accounts submitted from the side of the Bank had not been denied from the side of the defendant-respondents.
3. Learned Counsel for the Bank has urged in support of the appeal that when the case of the appellant-Bank regarding taking of loan by the predecessor of the defendant-respondents had not been denied nor was there any specific denial regarding the accounts being maintained by the Bank, the copy of which have been submitted along with the plaint itself before the issues were framed, then the claim of the Bank for the purpose of recovery should be construed to be admitted and as such even if no evidence has been adduced, the Presiding Officer had no other alternative but to decree the recovery claim and there was no scope for dismissing the claim. In support of his contention, he has referred the provisions of Section 58 of the Evidence Act read with Order 13 of the CPC His further submission is that the impugned judgment is a nullity in the eye of law, when there was already a notification regarding setting up of a Tribunal at Lucknow. Learned Counsel appearing for and on behalf of the respondent has controverted the submissions of the learned Counsel for the appellant as mentioned above, stating that the duty is cast upon the plaintiff to prove his case to the satisfaction of the Court, even if there was no specific denial regarding the maintaining of the proper accounts as contemplated under Section 34 of the CPC read with Banker’s Books Evidence Act, 1891. He has also referred to the denial regarding the plaint case as made in the written statement in support of his contention. On the basis of the submission made by the learned Counsel for both the parties, I have perused the records of the Tribunal below and also the materials thereon.
4. Section 58 of the Evidence Act runs as follows:
58. Facts admitted need not be provedNo fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which; before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.
5. If the above provision is being read in its proper perspective along with the rider given in the proviso, then it becomes clear that admitted facts did not require to be proved but then also as per rider in the proviso, the Court may require the facts admitted to be proved besides the admission itself. In the present case the documents filed along with the plaint had not been specifically admitted anywhere in the written statement filed by the defendants. Although the factual aspects regarding taking of loan, etc. had not been denied which may be construed as admitted, but there was no notice from the side of the appellant-Bank to the defendants to ask for admission of the documents as per the procedure provided under the CPC as contemplated under Order 13, of the CPC When there is no admission of the documents specifically, then it remains the duty of the plaintiff who claims relief on the basis of such documents must prove it. In the present case, it appears that by order dated 5th February, 2001, the Tribunal asked both the parties to file affidavits regarding evidence as contemplated under the Act. The appellant did not file so, although the defendant-respondents had filed. On later date defendants filed some other documents to be taken into evidence. Appellants raised objection, but then they were asked to pay Rs. 2,0007- as cost to the defendants’ Counsel, but that was also not paid by the appellant-Bank. When there is no specific denial of the factual aspect of the plaintiff, then presumption goes that those are admitted facts but in the nature of the case, when recovery claim is based on documents relating to accounts and also hypothecation, etc., then definitely the plaintiff must prove it, even in an ex parte judgment. I do not think that the learned Tribunal had committed error in holding that when the appellant’s side had not pix ved their case; the recovery claim is liable to be dismissed, but then the position is to be considered on other angle. The defendants had not said a word excepting a vague denial regarding the plaint case with respect to loan being taken by the predecessor of the defendants, rather their only case was that they were not liable as legal representatives/heirs to repay the debts of their predecessor. In such circumstances, the appellant-Bank thought that when their case regarding the documents filed along with the plaint had not been denied in the written statement by any specific averment, then the case of the Bank was being admitted by the respondent-defendants, but then there was an order by the Tribunal to prove their case by filing evidence. Although the language of that order is not in conformity with the rider given under Section 58 of the Evidence Act, but then also the appellants were duty bound to prove their case. They ought not to have lightly taken the presumptive admission of the case of the appellant-Bank. In that way definitely the appellants are negligent. But considering the matter that public money is involved that too of several lacs, the learned Tribunal ought not to have dismissed the case without further giving opportunity to the appellant, when in the written statement there is no specific denial regarding regular accounts being maintained by the appellant-Bank in course of their Banking business as admissible under Section 34 of the CPC read with the permission of Banker’s Books Evidence Act. In such circumstances, the dismissal of the appellant’s case after observing that there was no denial of the appellant’s case by the defendants in their written statement is definitely an uncalled for one. I do not want to go in the merit of the case as the dismissal has been recorded only on a technical ground.
6. In the result, the appeal is allowed. The impugned judgment is hereby set aside and the matter is sent back to the DRT, Lucknow to take up the case afresh by giving further opportunity to both the applicants and defendants to adduce evidence either by filing affidavit or otherwise. But such opportunity is being given to the appellant to prove their case only on paying of cost of Rs. 10,0007- to the defendants through their Counsel within a month next from this date. Send down the records to the DRT, Lucknow for proceeding according to the law in the light of the observation made above. It is further made clear that if the cost imposed is not being paid within a period mentioned above, the dismissal order recorded in the original case shall remain intact.
7. Appeal is thus allowed with rider of cost as mentioned above imposed on the appellant-Bank. It is further made clear that the T.A. No. 1063 of 2000 (may be renumbered before the DRT, Lucknow) should be disposed of within a period of six months positively from the date of receipt of the record and also on deposit of cost of the appellant-Bank.