AS/42/1954 of MAKKAR PILLAI & SONS LTD. Vs JOSEPH MATHAI on 19 November 1956

Judgment.

VaredarejaIyengar,J:

Thesuit which has given risetothis-appeal was for money due under Exhibit D hypotheca--tion bond dated 1741107 andsecuring the balanceunder an overdraft account opened by the 1st defend-ant with the South Indian Peoples Bank Ltd.,(inliquidation).The plaintiff isthe purchaser ofthe rights of the Bank under ExhibitD from theOfficial Liquidator.According tothe plaintiff an-amount of Rs.3001-153 pies was outstanding due--at theclose of the transaction on 29-81109conrespondingto ll-4-1934 and this, along with interest,-came to Rs.695415-6 pies for which theclaim wasmadein thesuit, which was laid on 24-6-1118.Thelst defendant wasex parte.The2nd defendant whohad been impleaded as purchaser of the propertycharged under Ext D, putthe plaintiff to proof of-the Pattuvaravu transaction and of the amount actually due.Heobjected specifically however thattheinterest liability had been put down in excess.

2. The court below on a previous occasion,on16th December 1947,decreedthe suitin favour oftheplaintiff,though disallowing his prayer for furtherevidence.It found,for the purpose,tbat the 1stdefendant had Pattuvaravu dealings on foot of Ext Dhypothecation bond tothe extent of the principalamountclaimed butthe method of calculation of--.__,.....,,...,.,--fnterest was not correct and had to be modified.

The 2nd defendantthen preferred appeal beforethe Travancore-Cochin High Court as A.S.No. 1-of1124(T) while the plaintiff filed cross-appealin respect of the interest disallowed.The HighCourt,by itsjudgment; in the appeal dated lstOctober1952observed that the ledger andjournalmaintained by the Bank had alone been producedinthecase without any attempt at proving the validi-ty or genuine·character ofthetransactions,thelst defendant even, who wasex parte,not havingbeen examined.The plaintiffexamined as P.W.2had no personal knowledge about any of thet;ran--sactions, nor wasthecashier of the Bank examined as P.W.l able tospeak tothe transactions.The-chequessaid to have been drawn by the lst defendant on the Bank had not also been produced andmoreoverthejournal itself was not complete andat any rate the pages which were to contain theentries corresponding tothe firsttwoentriesin-Ext A(l) ledger were missing.Taking these circumstances intoconsideratjon the High Court allow-•edthe appeal but, in view of theinterestsinvolved,they directedthe court below to dispose of thecase de novo after examination ofcertain witness-es as pre_yed for by the plaintiff.Af_ter remand asabove, further evidence was letin on behalf of boththe plaintiff and the 2nd defendant and thecourtbelow has once again decreedthesuit practicallyon the original basis.Hence this appeal by the2nd defendant.

3. Learned Counsel forthe 2nd defendant --appellBnt contendsthatthe position of'the plaintiff bas not materially improved afterthe remandosathatthere isstill no legalevidence k •

in thecasesufficienttojustify the decreeinappeal.However,having heard learned Counseland scrutinised theevidence, we have no hesita-tion insaying thatthiscriticism is entirelyunjustified.Theevidence let in'in the case hasdisclosed thatthe South Ind1an People's Bank Ltdwasthe S'"C':Cessor - in-interest ofthe Tgvancore'-Peoples Bank Ltd.,and itwas mostly insettlement of the 1st defendant's original pro-noteliability tothe latter Bank that Ext D itselfcameinto existence.P.Ww.4 and 5 who wereexamined in thecase after remand were co-directorsof South Indian People[I]s Bank Ltd.,along with the1st defendar1t,P.W.4 being also an agent of .theBank.P.W.4 hasswornthet himself and otherdirectors of the Bank requested the lst defendant--to d:tscha.rse his pronote liability either by paymrent, or by executingsecurity deed and the 1stdefendant then offered to and didexecute Ext Doverdraft agreement for Rs.4900sothat the Bank-could adjustthe balance of the pronote debtaftersetting offthe probableamount due to himunder a Chi tty scheme ,from the Travancore People[I]sBank Ltd.,~lso taken over bythe South IndianPeople's Bank.P.W.4 also proves Ext A pro-noteloan ledger and Ext A(1)overdraft account ledgerand also Ext Bjournal ofthe Bank.Ext A shows---that on 23-111931 an amount of Rs.463450 was duetothe Bank from the 1st defendant underthe pro-note.On December 8,1931, Rs.3000 werecredited inthataccount beingthe proceeds of achequeissued by the-1st defendant as againstthe overdraft account Exhibit A(l) which shows a correspond:i_ng debit. P.W.4hassworn that hoobtained the concerned cheque from the 1st defendantand alsospeakstotherespective debit and credit.P.W.5speaksgenerally of the liability of the lst defendant,mder the uro-note and over-draft agreement.Itis no doub-i:;true thatthese and other entriesin-the accounts are in thehandwriting of clerkP.C.Mathew whose examination also wassought forby the plaintiff at time of remand and that hehas not been examined in the case. Learned Counselfor the plaintiff - respondent explainsthat thisP.C. Mathew could not be got atsubsequent totheremand.Wethink theexplanation can be acceptedin the circxstances.Anyhow P.W.4 had sworn thatthe accounts were maintained in the usual course'and under ~issupervision and that all thechequescovered b xts A and B accounts did pass underhisscruti~v.The evidence of P.W.l cashier ofthe Bank, t"hough geners.lly discountea bytheremandjudgment, my also be referred to atthisstage totheextent at least itspeakstothe debitentry of Rs.3001-15-3 pies as on 11-4-1934 aIs made'-in P. W .1 s own handwriting.Learned Counsel forthepell·ntsaysthat Ext B is in e mutilated"form and thechequessuuport:i..ngthe entriesin-Et A(l)overdraft account arestill not forthcoming.B,1t these defects do not,in our opinion,much metter in the circumstances.Ttshold not beforgotten,after all,that the2nd defendant doesnot deny theliability of the 1st defendant on anycount but hasonly put the ulaint:t.ff to proof.The1std.efendant who had notice ofthe assignment infavour ofthe plaintiff did not repudiate hisliability and does not also contestthiscase.P?we ho1d therefore thatthe court below was perfectly \

justified in its finding,on the evidence onrecord, that the plaint'transaetion has beenfully proved and· there is no substm1ee in-~:-.~-~-~·· -,.,.,.,this appeal.. :ca3,The appeal fails in the result and,,,/,,,,,.-4.,,;)"/_......,,,.,, it is dismissed with costs.

'~IJt'November 1956.-\1