Appeal No. 27 of 2005. Case: Kishor S. Marudwar Vs Dena Bank and Anr.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Case NumberAppeal No. 27 of 2005
Party NameKishor S. Marudwar Vs Dena Bank and Anr.
JudgesS. S. Parkar, J. (Chairperson)
IssueBanking
Judgement DateAugust 03, 2008
CourtMumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)

Judgment:

S. S. Parkar, J. (Chairperson)

  1. This appeal has been filed by the original defendant No. 4 challenging the decree passed against him by the D.R.T., Pune. The respondent bank had filed the suit against four defendants. The claim of the bank as against the defendant No. 2 was withdrawn and the claim of the bank as against the defendant No. 3 was dismissed. The decree has been passed ultimately only against the defendant No. 1 borrower firm and the defendant No. 4 the guarantor who was not otherwise concerned with the borrower firm. On behalf of the appellant it is pointed out that the suit against the defendant No. 3 was dismissed on the ground that the respondent bank had not produced account extracts duly verified as required by the Bankers' Books Evidence Act. The account extracts which are produced do not bear the certificate as required by the Bankers' Books Evidence Act nor do they bear the certificate as per the amended provisions of the Bankers' Books Evidence Act and therefore they were held to be not admissible in evidence and therefore the liability could not be fastened on the defendant No. 3. It is also argued on behalf of the appellant that if the account extracts produced by the bank could not be read in evidence against the defendant No. 3 as held by the D.R.T., on the same ground the claim of the respondent bank was liable to be dismissed as against the appellant.

  2. However, perusal of the judgment of the D.R.T., shows that the decree was passed against the appellant for want of pleadings as the appellant had not filed his written statement. It is not in dispute as mentioned in the impugned judgment that the appellant had filed an affidavit dated 15th January, 2004. In para 10 of the said affidavit it is stated that the statement of accounts produced on behalf of the respondent bank for the period from 1st March, 1998 to 12th October, 2001 was not as per the amended provisions of the Bankers' Books Evidence Act and as such the Original Application i.e., the suit was liable to be rejected with costs. On behalf of the appellants an application was made on 3rd October, 2002 seeking direction against the respondent bank to supply documents and statement of accounts up to date to the appellant but neither the documents were supplied nor any order was passed on that application. Thus, the appellant was challenging the claim of the respondent bank on the ground that the respondent bank had not produced the statement...

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