BHARAT BANK LTD Vs. SHEOJI PRASAD

JUDGEMENT

(1.) The plaintiff (Bharat Bank Limited) is the appellant, and the appeal arises out of a suit for recovery of a sum of Rs. 7357/15/3 including interest. The plaintiff bank is a registered company having its head-office at Delhi and branches at several places in India. One of the branches of the company is situate in mahalla Saraiyaganj in the town of Muzaffarpur. The defendant carries on grain business at Bairagnia within the district of Muzaffarpur in the name and style of Messrs Ram Ganesh Ram Sheoji Prasad. In November 1944 he applied to the plaintiff bank at Muzaffarpur for opening a cash credit account with the bank up to the limit of Rs. 100,000 on the security of grains. The plaintiff company acceded to this request and allowed the defendant to open a cash credit account with the bank on 1-3-1945. On this very date the defendant executed a promissory note in favour of the bank for Rs. 100,000 promising to pay interest at the rate of one per cent. per annum above the rate fixed by the Reserve Bank of India subject to a minimum rate of 6 per cent. per annum with monthly rest. The defendant put the bank in control of his store of grains stored in his godown at Bairagnia. On 21-9-1945 there was an adjustment of account and a sum of Rs. 18,448/10/3 was found due to the bank. This amount included Rs. 543-11-6 as interest, and the entire adjustment was confirmed by the defendant on 22-9-1945. The plaintiff's allegation is that as in spite of repeated demands the defendant did not clear up the account and pay the dues and that as the amount of the gram pledged with the bank was deteriorating the plaintiff, after giving due notice to the defendant, sold the grain on 29-11-1945 in presence of the defendant to one Messrs. Ramlagan Sah Balkuer Prasad of Bairagnia for a sum of Rs. 9200, which price was accepted as fair by the defendant. Thereafter, in January 1946 the defendant paid a sum of Rs. 2500 to the plaintiff for which a credit had been given by the plaintiff. After deducting the amount for which the gram was sold and also after making allowance to the defendant for the payment of Rs. 2500 made in January 1946, the balance claimed by the plaintiff is Rs. 7357/15/3. The defendant admitted that by adjustment of accounts Rs. 18,448/10/3 had been found due from him, but he resisted the plaintiff's claim on the ground that the gram had been sold without any proper or reasonable notice and that the price fetched at the sale was consequently insufficient. According to the defendant's contention the 3350 maunds' of gram which be had deposited with the plaintiff and which had been sold should according to the then prevailing market rate, have fetched a price of Rs. 32,662/8/-. It is therefore that the defendants contends that he is entitled to get credit not only for the sum of Rs. 32,662/8/- but also for the price of bags in which the gram had been kept, besides the sum of Rs. 2500 for which credit has been given to him in the plaint.

(2.) The learned Subordinate Judge has held that the gram was not sold after a reasonable and a proper notice and that the value of the gram sold calculated at the rate of Rs. 9/12/- per maund would come to Rs. 32,662/8/-, besides the price of bags and the sum of Rs. 2500 actually paid to the plaintiff. In this view of the matter learned Subordinate Judge has dismissed the claim of the plaintiff.

(3.) The learned Government Advocate, who argued this appeal on behalf of the plaintiff-appellant, strongly relied on the letter, Ext. 1(a), which, in his opinion, conclusively established that the sale had been confirmed by the defendant. The witness who has proved this letter is the Manager of the plaintiff bank, and his statement so far as this letter is concerned is that it was given to him by the defendant Sheoji Prasad and that it was signed by him in his presence. Though the Manager is a fairly respectable witness, his statement to this effect cannot be accepted for the simple reason that the letter does not seem to bear any signature and the writing on the letter has not been proved by him. The defendant stoutly denies having given any letter to the Manager by the way of confirmation of the sale, and it is curious that the letter on which the Manager or the bank relies does not bear any signature. If the bank considered it necessary to obtain any letter from the defendant by way of confirmation of the sale, they should have insisted on the defendant signing that letter. There being no signature on the letter and the writing having not been proved, it is difficult to reject the testimony of the defendant that he did not give any letter to the Manager or to anyone else in the bank confirming the sale. We are not, therefore, able to take a view different from the one taken by the learned Subordinate Judge so far as this letter is concerned.