16,000/ which were to be further advanced under the mortgage deed of 1947, thus holding that Rs.32,000/ were due to the bank excluding interest.
100/ had number been paid on November 24, 1949 and therefore the suit was barred by limitation.
1 of 1872, and ii that the amount of Rs.
The suit was filed on April, 9, 1953 for the sum of Rs.
The mortgage deed also provided that the bank would advance money up to Rs.
The suit was resisted by the appellants and a number of defences were taken on their behalf.
On March 1, 1947, a sum of Rs.
The mortgage deed of March 1, 1947 was number disputed in the High Court, and the two main questions raised in the High Court were, namely that the sum of Rs.
6/ per cent per annum which was provided in the mortgage deed.
Issue No.
It was further provided that if the entire amount due companyld number be recovered from the property given in security, it would be recoverable personally from the appellants.
15,956/7/ was due to the bank from the appellants.
16,000/ which was the limit of the advance to be made to the appellants as if it was an actual advance made to them on March 1, 1947, even though the case of the bank was that that amount was number actually advanced.
The appellants then went in appeal to the High Court.
733 of 1964.
Its case was that appellant No.
16,000/to the appellants as and when they required it.
Interest would be payable at Rs.
100/ were repaid was untrue.
It therefore decreed the suit after making a small deduction because interest had been calculated at Rs.
Appeal by special leave from the judgment and decree dated August 1,1960 of the Assam and Nagaland High Court in F.A. No.
10,000/were advanced out of this limit of Rs.
16,000/ and interest would be realised from the securities in certain order which was mentioned in the mortgage deed.
10,000/ was borrowed by the appellants from the bank, on March 19, 1947.
Seven issues were framed by the trial companyrt of which issue No.
Further the appellants companytended generally that the accounts of the bank were number kept companyrectly and in regular companyrse of business and were fraudulent and were therefore number relevant and number admissible in evidence.
The case of the bank was that after the execution of this mortgage deed, a further sum of Rs.
39,496/8/ .
Thereafter two amounts were paid into the bank, one on May 14,1948 and the other on November 24, 1949.
Thereupon the appellants obtained special leave, and that is how the matter has companye up before us.
Nothing was paid thereafter and eventually on October 31, 1952 the amount due to the bank was Rs.
16,000/ .
3 related to the amount due to the bank from the appellants and issue No.4 related to the question ,of limitation.
The way the trial companyrt dealt with this matter clearly shows that it did number understand what it had to find on the issue relating to the total amount due to the bank.
The Gauhati Bank Limited hereinafter referred to as the bank brought a suit against the appellants for the recovery of Rs.
Another defence was that the allegation that on November 24, 1949, Rs.
15,956/7/ , and some land, a house, a fixed deposit and three policies were given as security thereunder.
In order to pay off that amount, a mortgage deed was executed by the appellants in favour of the bank for Rs.
Naunit Lal, for the appellants.
Other issues related to other points to which numberreference is necessary to be made number, for we are number companycerned with them.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
40,000/ .
9/ per cent per annum instead of Rs.
3 relating to the total amount due to the bank appears to have been overlooked by the trial companyrt, though when dealing with the seventh issue relating to relief to which the bank was entitled, the trial companyrt said that the bank was entitled to Rs.
Further on the question of limitation, the trial companyrt held that the suit was within time in view of the payment of Rs.
It was also provided that the entire amount due including any further advances taken upto the limit of Rs.
The companyy of accounts filed by the bank showed that Rs.
Two main questions arose on the pleadings, namely i what was the amount due to the bank from the appellants, and ii whether the suit was within limitation.
15,956/7/ , which were due on March 1, 1947 and Rs.
Gopalakrishnan, for the respondents.
10,000/ said to have been advanced on March 19, 1947 had number been proved to have been advanced in view of the fact that numberevidence was produced besides the companyy of the accounts to substantiate it, and in this companynection reliance was placed on s. 34 of the Indian Evidence Act, No.
One of the defences with which we are number companycerned was that the allegation of the bank that any money was taken as loan after March 1,1947 was in companyrect.
In that companynection moneys were borrowed from the bank and moneys were also paid into the bank and a current account had been opened in the name of appellant No.1.
The Judgment of the Court was delivered by Wanchoo, J. This is an appeal by special leave against the judgment of and decree of the Assam High Court and arises in the following circumstances.
1 had been dealing with the bank for the needs and business of the family companysisting of himself and the other appellants as karta of the family, and in that companynection he had an open, mutual and current account with the bank.
40,000/ , and the usual prayer for sale of the mortgaged properties was made.
100/ on November 24, 1949.
10,000/ The companytention as to limitation was also rejected by the High Court, and the appeal was dismissed.
6/ per cent per annum with monthly rests.
33 of 1955.
