P L D 1966 Supreme Court 684 (PLP)

HAMOODUR RAHMAN, J.-This appeal has come before us under a certificate granted by the High Court of West Pakistan, Lahore, on the 24th of November 1961, certifying it to be fit for appeal to this Court, not only because the value of the subject- matter in dispute was more than Rs. 25,000 but also because "two of its Judges had differed with each other" and the appeal was decided after a reference t9 a third ]earned Judge, The appeal before the High Court arose out of a suit insti tuted by the respondent on the 21st of February 1950, in, the Court of a Civil Judge, First Class, Qasur Camp, Lahore, for the recovery of a sum of Rs. 25,662-3 from the appellant-firm. Khawaja Muhammad Siddiq, the sole proprietor of the said firm, was also joined as a defendant in the said suit. The respondent, which is a public limited company registered under the Companies Act, filed the plaint in the suit through one Muhammad Khan, who described himself as the "Principal Special Officer of the plaintiff bank with respect to the bank's refugee branches from the Indian Dominion after its partition from Pakistan Dominion." The competency of the said Muhammad Khan was further averred in the plaint as follows: "Being conversant with the facts of this case relating to Delhi branch of the bank, he is able to depose about the same." The plaint was also signed and verified by him as the "Principal Special Officer and General Attorney." The allegations, upon which the suit was brought, were that Khawaja Muhammad Siddiq, who was the owner of the premises in Chandni Chowk, Delhi, rented by the respondent for its Delhi office, applied in February 1947, for two cash-credit accommoda tions up to the limits of Rs. 20,000 and Rs. 10,000 respectively and agreed to pay interest thereon with monthly rests at 5%. These accommodations were sanctioned by the Board of Directors of the respondent at Lahore on the 8th of February 1947, subject to the applicant executing the necessary documents. Conse quently, on the 21st of February 1947, the defendant No. 2 Khawaja Muhammad Siddiq executed two demand promissory notes (Exhs. P. 1 and P. 3) for Rs. 20,000 and Rs. 10,1;00 respec tively as also two cash credit agreements (Exhs. P. 2 and P. 4). These were all signed by him for and on behalf of his firm Muhammad Siddiq Muhammad Umar as its sole proprietor. There is no mention in these documents of any other security or pledge of goods. The accommodations thus appear to be clean over-drafts without any security. Between the 21st of February 1947, and the 23rd of January 1948, the said defendants, in pursuance of the above cash-credit accommodations, borrowed various amounts from the bank as also deposited moneys to their credit in the said accounts leaving a debit balance of Rs. 22,717-4. After this date no further amounts were deposited by the appellants. Thereafter, due to communal disturbances the appellants evacuated to Karachi and the respondent shifted its Delhi office to Lahore, but the accounts were not closed although there were very few transac tions after January 1948. From February 1949, the respondent began demanding the re-payment of the amount standing to the debit of the appellants in the said accounts but the appellants refused to pay. The suit out of which this appeal arises was then instituted. The appellants contested the suit and denied that anything was due from them to the respondent. In the written statement, however, the execution of the promissory notes and the cash-credit agreements was not dented nor was any case of pledge of goods set up but it was merely contended that the documents were not admissible in evidence for want of proper stamp. It was further pleaded that "it is not admitted that the person filing suit has any authority to file it or to sign or verily pleadings, or that he is the Principal Officer of the bank. His act in filing the suit not being properly legally authorised, whether he be principal officer or not, the suit is liable to dismissal on this ground alone." The jurisdiction of the Civil Judge at Lahore was also challenged, even though in the cash credit agreements it was specifically provided that the "bank will be at liberty to sue the borrowers at Lahore". The bank filed a replication in which it disclosed that the said Muhammad Khan was not only a Principal Officer but also a "duly authorised general-attorney under a duly registered power- of-attorney by the plaintiff-bank in his favour executed long before the Partition of India." On these pleadings the following issues were raised by the Court:- (1) Whether Mr. Muhammad Khan is competent to file this suit on behalf of the plaintiff bank? (2) Were the documents, mentioned in para. No. 2 of the plaint executed by the defendants? (3) If issue No. 2 is answered in the affirmative, then are these documents admissible in evidence? (4) What amount, if any, is due to the plaintiff bank from the defendant ? (5) Has this Court the jurisdiction to try this suit? (6) Relief. In support of its case the bank examined the attorney Muhammad Khan, Sheikh Inayat Ali who was at the relevant time the Manager of the Delhi Branch and one Abdul Haq Ghauri to show that all the documents relating to the debts pay able to the bank at Delhi had been brought over from there in June 1947. The Manager of the erstwhile Delhi Branch proved that he knew the appellants and that the bank had given them two cash credit advances in Delhi up to the limits of Rs. 20,000 and Rs. 10,000 respectively and that in respect of these advances the pronotes and the cash credit agreements had been executed in his presence by Khawaja Muhammad Siddiq, who signed as the sole proprietor of the firm and on its behalf, and that these papers were made over by him in June 1947, to a person sent from the Lahore office for bringing them to Lahore. No question was directed in cross-examination to dispute the execution of these documents or to challenge the cash credit account standing in the name of the appellant-firm in the Delhi office of the respondent nor was it suggested that any kind of pledge of goods had been made as security for these advances. The only point on which cross-examination was directed was as to the admissibility of the pronotes and the agreements in evidence. Muhammad Khan, the constituted attorney, stated that the bank had executed a general power-of-attorney in his favour on the 20th of December 1942, and got it registered and that he had filed the plaint in the suit under the instructions of the Managing Director by virtue of the authority given to him by the general power-of-attorney. He also filed a certified copy (Exb. A) of this power, as the original had been lost during the disturbances following the partition of the country. Before Partition he was the Manager of the Batala Branch and the original power was there with him but after Partition he came to Lahore and was appointed as Special Officer, Refugee Branches. He maintained that he had correctly prepared the statement of accounts accord ing to the books of the bank. The books of the bank were not tendered in evidence but a certified copy (Exh. P. 5) of the entries therein was put in under section 4 of the Bankers' Books Evidence Act. Apart from this he, it appears, had no personal knowledge of the transactions and did not depose about them. He too was cross-examined only as to his authority to file the suit. The last witness Abdul Haq, who was in June 1947, an employee in the Central Office of the bank at Lahore, merely stated that in June 1947, he went to Delhi and brought back all the documents relating to the debts payable to the bank from the Delhi Branch. He brought these documents under the orders of the then Managing Director of the bank and that at the rele vant time Inayat Ali was the Manager incharge of the Delhi Branch. As against this the only witness examined on behalf of the defendants was Khawaja Muhammad Siddiq himself. He admitted that he had dealings with the bank at Delhi and that he executed the pronotes and the cash credit agreements, but he denied that he had taken any loan or advance of any specified amount from the bank. According to him he executed the above mentioned documents "for fixing the limit of the loan." He for the first time in his evidence set up the story that: "I kept my goods with the plaintiff as security on various occasions and obtained amounts from the plaintiff-bank against the aforesaid goods." 13e disputed the correctness of the accounts and main tained the "loans" were to be repaid at Delhi. In cross-examination, however, he was made to admit that he had also a current account with the bank and that he had borrowed moneys from the bank but curiously enough he could neither remember regarding which account the above-mentioned documents were executed by him, nor could he estimate as to how much money he had borrowed from the bank. It will be noticed that for the first time in the course of his deposition in Court he set up the case of the advances having been made against the security of goods, but he adduced no further evidence in support of his claim. After his evidence the case was adjourned on several Occasions on the ground that there was a likelihood of a compromise but eventually no compromise was effected and the case was fixed for arguments on the 7th of June 1952. But was again adjourned and arguments were ultimately heard on the 22nd of June 1952. The trial Court held that it had jurisdiction to hear the suit that the promissory notes and cash credit agreements were executed by the defendants and were admissible in evidence but on the 1st and the 4th issue the findings were against the bank. According to it, the denial of the authority of Muhammad Khan by the defendants shifted the onus upon the plaintiff to prove such lawful authority not only by producing the Articles of Association of the Company and the relevant resolutions of its Board of Directors but also by establishing:- (1) that such a power-of-attorney could be given, (2) that the Directors of the Company were competent to execute the power, (3) that it was properly executed in accordance with law, and (4) that the Directors had acted in a meeting to arrive at a decision by means of a regular resolution to authorise Muhammad Khan to file the plaint. Before the trial Court neither the Articles of Association were filed nor was any resolution of the Board of Directors put in nor was any time asked for to produce these documents or, adduce further evidence, although Muhammad Khan had failed to give any satisfactory answer to the questions put in cross-examination for eliciting these facts. He did not know the full details. He merely produced a copy of the power-of-attorney that was said to have been given to him. In the absence of these materials the trial Court held that the "suit cannot be taken as an act of an authorised person", as it had not been proved that the power-of attorney was a valid power. With regard to issue No. 4 also it took the view that section 4 of the Bankers' Books Evidence Act was controlled by section 34 of the Evidence Act, as the former section was intended merely to save banks from carrying their original records to a Court of law. Therefore, merely submitting the statement of account certified under the Bankers' Books Evidence Act was not sufficient. Some further "intrinsic corroboration" had to be produced to guarantee the veracity of the said accounts, and as no such corroborative evidence had been adduced the "self-serving" statements of accounts filed by the bank were not by themselves sufficient to charge the defendants with any liability. The suit was, accordingly, dismissed, but the parties were left to bear their own costs. On appeal to the High Court by the bank the learned Judges of the Division Bench constituted to hear the appeal differed. One of the learned Judges agreed with the view taken by the trial Court, whilst the other took the view that the trial Court was wrong in taking the view that: (1) the statement of account filed under the Bankers' Books Evidence Act was not sufficient to charge the defendants with liability, and (2) that the plaintiff bank was in law required to establish the points referred to by the trial Judge to make the suit filed by Muhammad Khan, an attorney appointed under a registered power-of-attorney bearing the common seal of the company, a competent suit. This Bench formulated the points of difference as follows:- (1) Was the suit out of which this appeal has arisen validly instituted on behalf of, the Australasia Bank Ltd.? (2) Has it been proved by the evidence on the record that the amount of Rs. 25,662-3-0 is due from the defendant to the plaintiff? The third learned Judge to whom the case was then referred felt that to enable him to pronounce judgment in the case it was necessary to see the Articles of Association of the bank as also other documents relating to the appointment of Muhammad Khan as the Bank's attorney as also to examine the person who was the Managing Director of the bank at the relevant time. He, accordingly, on the 28th of March 1960, ordered the production of such additional evidence. This order was further clarified on the 27th of May 1960, and it was recorded that the evidence summoned was required "to find out whether or not Muhammad Khan was competent to sign and present the plaint" and "whether the suit was properly instituted." This order was sought to be challenged by a petition for special leave to appeal to this Court but the petition was dismissed. Thereafter the Memorandum and Articles of Association (C. W. 1/1) of the bank and a copy of the resolution (C. W. 1/2) of the Board of Directors dated the 20th of December 1942, were filed to show that the Board of Directors had actually at a meeting approved the granting of the power-of-attorney to Muhammad Khan and its registration and that they were empowered to do so. Khawaja Bashir Bakhsh, who was at that time the Managing Director of the bank, was also examined. He after seeing the power-of-attorney pointed out that clause 6 thereof gave Muhammad Khan the power to lodge suits on behalf of the bank and confirmed that the power was executed and registered after the Board of Directors had authorised it. It was signed by him as the Managing Director and also by two other Directors as required by the Articles of Association. In cross-examination he further clarified that the Board's meeting at which this authority was given was attended by three Directors including himself, although the Articles of Association only required the presence of two Directors to form a quorum. This power, according to him, remained operative throughout the period of 9 years from 1942 to 1951 during which be remained the Managing Director of the bank. He also corroborated Muhammad Khan to the extent that the latter was after Partition put in charge of the branches of the bank which had been left in India. It was also elicited from him in cross-examination that he knew Khawaja Muhammad Siddiq, the second defendant in the suit and that he recollected that the defendant-firm had pledged certain goods with the Chandni Chowk Branch of the bank at Delhi. It was specifically put to him that the said defendant had on several occasions complained to him of the non-return of the goods pledged "in connection with the money which is the subject matter of the present suit." He replied that this may have been done but as far as he could remember he gave the defendant a delivery order for the said goods, but as the defendant was declared an evacuee in India he probably did not get those goods. It is worth noting that this question also impliedly admits that some moneys are due from the firm to the bank but that the firm seeks to set off the value of the pledged goods against this amount. After considering this additional evidence the third learned Judge agreed that the suit must be held to have been competently instituted, even if the oral testimony of Khawaja Bashir Bakhsh is excluded from consideration. With regard to the second question also he agreed that the trial Court was wrong for substantially the same reasons as were given by the learned Judge who was inclined to decree the bank's suit. In this view of the matter since the majority opinion was for allowing the appeal, the appeal was allowed with costs throughout. The first question urged by the learned counsel appearing in support of this appeal is that the reference to the third learned Judge was incompetent and, therefore, upon there being a difference of opinion between the two learned Judges who originally heard the appeal the decree of the trial Court should have been confirmed under subsection (2) of section 98 of the Code of Civil Procedure. Section 98 of the Code of Civil Procedure provides as follows:- "98. (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority, (if any) of such Judges. (2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed: Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters patent of any High Court." Learned counsel has urged that the power of making a reference to a third Judge is derivable only from the proviso to subsection (2) and since this only deals with a difference of opinion on a point of law, the reference in the present case of the questions formulated by the learned Judges could not have been made. The first question, it is said, is a mixed question of law and fact and r the second question only raises a question of fact. It is true that under the proviso to section 98 of the Code of Civil Procedure a reference to a third Judge can only be made in the case of a difference on a question of law, but this is not the only provision of law under which a reference can be made to a third Judge in a High Court. Such a power is also contained in 1 clause 26 of the Letters Patent of the Lahore High Court, which prescribes:-

26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they stall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the A majority of the Judges who have heard the case, including those whose first heard it." It will be observed that in this clause there is nothing indicate that the reference can only be of a point of law. This clause deals with all kinds of differences of opinion and all that required under this clause is that the points of difference should b formulated by the Bench making the reference. The reference under the Letters Patent may be on a point of fact as well as of law. There can also be no manner of doubt that section 98 of the Code of Civil Procedure does not abrogate the Letters Patent, for subsection (3) thereof expressly provides that nothing in section 98 shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. Section 4 of the C. P. C. also makes the provisions of the Code applicable where no specific; provision to the contrary is contained in any special or local law in force or where there is no special jurisdiction or power which may have been conferred by or under any other law for the time being in force. It is thus clear that there is no substance in this objection and the reference made in the present case was fully competent. If authority is needed for the proposition that section 98 does not affect the jurisdiction of the High Courts under the Letters Patent, reference may be made to the opinion of the Judicial Committee in the case of Bhaidas Shivdas v. Bhai Gulab and others (48 1 A 181) and to a Full Bench decision of the Lahore High Court itself in the case of Mst. Sardar Bibi v. Haq Nawaz Khan and another (A I R 1934 Lah. 371). The next point raised on behalf of the appellants in this case is that the admission of additional evidence by the third learned Judge was improper, as there was already abundant evidence on the record to come to a decision one way or the other and, in fact, the Division Bench had already decided the case on the basis of the evidence on the record without any difficulty. The admission of additional evidence had thus amounted to improperly allowing the plaintiff in the suit a further opportunity of filling up the lacunae in its evidence. In support of this contention reliance has been placed on certain observations made by this Court in the case Muhammad Ikhlas and others v. Muhammad Ismail (P L D 1963 S C 50 1 A 183) where my Lord the Chief Justice after referring to the provisions of sub-rule (2) of rule 27 of Order XLI of the Code of Civil Procedure observed as follows:- "It is clear that more is required under this sub-rule than mere repetition of the provisions in sub-rule (1); the reasons would be expected to be factual, leading to an inference of necessity for proper determination." Learned counsel, however, overlooks that in the same judgment it has also been observed that "substantial cause for allowing fresh evidence would, therefore, seem to be mere necessity for proper determination of the case." In that case the finding of the Court was that no sufficient reason had been given for calling for additional evidence and that there was on the record such evidence as made it "patently possible" to make a complete adjudication of the issues raised therein. The present case is clearly distinguishable, for, as we have already pointed out, the learned Judge calling for additional evidence had clearly indicated in his order the nature of the' evidence required and further clarified by his subsequent order that the purpose for which the evidence was required was to find B out whether the person who had presented the plaint had been authorised to do so and as to whether the suit had been competently instituted. These were sufficient "factual" reasons even within the principle laid down in the above-mentioned decision for the admission of additional evidence. It is true that in the case of Parsotim and others v. Lal Mohar and others (58 1 A 254) the Judicial Committee had observed that the provisions of this rule were "clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the appellate Court," but even in this case it was conceded that if the appellate Court finds the additional evidence "needful" it may be admitted when some "inherent lacuna or defect becomes apparent" to the Court. This defect may also be pointed out by a party, but "the requirement must be requirement of the Court upon its appreciation of the evidence as it stands." The rules of procedure are not made "for the purpose of hindering justice" as stated by the Privy Council itself in the case of Indrajit Pratab Sahi v. Amar Singh and others (3) and, as such, we should not give such a restricted interpretation to the provisions of rule 27 of Order XLI of the Code of Civil Procedure as would, in effect, amount to tying down the hands of the appellate Court and stand in the way of doing complete justice in a cause. The rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. If it comes to this conclusion, then it has the power to call for additional evidence subject to the condition that it must record its reasons for doing so, in order that a higher Court may be able to ascertain that the need was not merely imaginary but based upon factual grounds. In the present case, all these conditions are satisfied. It is significant that even the Court originally hearing the appeal had felt the necessity of such evidence and had even offered to given time to the parties to produce the same, but the parties had not themselves availed of this opportunity. It was apparent from the pleadings that the suit was being instituted by a constituted attorney of a public limited company. He could only do so if he was duly authorised in that behalf and occupied one or other of the offices mentioned in Rule 1 of Order XXIX of the Civil Procedure Code. A copy of the power of-attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remained to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of a public limited company. For this purpose a reference to the Articles of Association of the company was certainly necessary see whether the Directors were competent to delegate such power. It was not necessary to see whether the Directors; had in fact approved of the giving of such power-of-attorney to the person who presented the plaint. This was, however, proved by the production of the resolution of the Board of Directors as a matter of abundant caution. The additional. evidence was to that extent, therefore, in our opinion, rightly admitted. This was all that was required. It was not necessary', to call the Managing Director as the Court calling for the additional evidence itself realized subsequently. Even the production of the resolution could have been dispensed with, as it was not strictly necessary. This brings us to the next question as to whether the suit bad been competently filed. As already stated, one of the learned Judges of the High Court had taken the view that since the power-of-attorney had affixed to it the common seal of the company, there was a presumption that the power-of-attorney was lawfully, executed, and then the onus was on the other side which challenged the validity of the power-of-attorney to show that it was ultra vires the powers of the company. The third learned Judge evidently did not agree with this view, for, if he had done so he would not have called for the additional evidence. We are unable to uphold the view that the production of the power-of-attorney bearing the common seal of the company was by itself sufficient. In saying this the learned Judge has evidently overlooked that as a rule the Articles of Association of a company contain special provisions prescribing for the manner in which the seal of the company may be affixed and that those who deal with a company are bound to see that the document on the face of it accords with those provisions of the Articles. It is only when it does so and the instrument is on the face of it regular, persons dealing with a company have a right to presume that the seal so affixed has been duly affixed, that the Directors were duly appointed and their signatures duly made. The burden only then shifts to prove the contrary on those who allege it. Again, the law requires that, prima facie, those who deal with a person acting under or purporting to act under a power-of attorney are put upon enquiry and are bound to satisfy them selves as to the authenticity of that power. It is only when such a person acts or purports to act under a properly executed power that the principal cannot repudiate his action. This rule has been accepted as settled ever since the decision of the Court of Exchequer Chamber in England in the case of Royal British Bank v. Turguand ((1856) El & BI 327). According to this rule persons dealing with a company are bound to read the public documents of a company, i.e. its Memorandum and Articles of Association, and to satisfy themselves that the transaction entered into or proposed to be entered into is not inconsistent therewith, but they are not bound to do more, nor are they required to enquire into the regularity of the internal proceedings or what has been called "the indoor management of the company", for, they are entitled to assume that all other things have been done regularly. There are, of course, exceptions to this rule, but we are not concerned with those exceptions here. We have referred to these provisions in order to indicate that once the authority of Muhammad Khan to present the plaint was challenged, a reference not only to the power-of-attorney was called for but also to the Articles of Association of the company. It will be observed that in the preamble to the Articles of Association it is clearly stated that the regulations contained in Table `A' of the First Schedule to the Companies Act shall not apply to this company but only the Articles adopted shall apply. Under Article 125 thereof Khawaja Bashir Bakhsh was appointed the permanent Chairman of the Board of Directors for as long as he was qualified and willing to act as such. Under Article 123 two Directors were sufficient to form a quorum and at a meeting at which this quorum was present the meeting could under Article 126 exercise all or any of the authorities and powers and directions given by or under the Articles of the company. Article 131 vested the general control of the company in the Directors and Article 132, inter alia, gave them power to institute, conduct, defend, compound or abandon legal proceedings and to authorise or empower "the managers or other officers for the time being of the company to exercise and perform all or any of the powers, authorities and duties con ferred or imposed upon the- Directors." Articles 135 provided that the custody of the common seal of the company shall be with the Chairman of the company and that the seal shall not be used except by the authority of the Directors or a Committee of the Directors in the presence of one Director at least who shall sign every instrument to which the seal is affixed and every such instrument shall be countersigned by the permanent Chairman or some other person appointed by the Directors. Now a reference to the power-of-attorney itself shows that it was signed by two Directors and the permanent Chairman and it was also sealed with the common seal of the company. The said three Directors also appeared before the Registrar for presenting this document and there admitted its execution. We have also now the resolution of the Board of Directors passed on the 20th of December 1942, which approved the terms of the power-of attorney to be given to Muhammad Khan as also its registration. Clause 6 thereof gave him the power to commence, prosecute, or enforce or defend, answer or oppose any suit or other legal proceedings and clause 8 thereof expressly authorised him to make, sign, execute, present and file all applications, plaints, petitions or written statements, etc. It is clear, therefore, that Muhammad Khan was properly and lawfully empowered by the Directors who themselves had express power given to them under the Articles of Association to delegate their authority and the delegation so made empowered Mr. Muhammad Khan to sign, execute and present plaints on behalf of the company. The suit was, therefore, in our view, rightly held to have been competently filed. The next question that arises for consideration is as to whether the evidence on the record has established that the amount claimed was due from the defendants. In the High Court at the original hearing of the appeal one of the learned Judges observed that there was "ample corroborative evidence contained in the admissions made by the defendants themselves" to justify the acceptance of the accounts filed under section 4 of the Bankers' Books Evidence Act, 1891, even if section 34 of the Evidence Act controlled the aforesaid section, but he went on and expressed the view that "even if no such evidence was available . . . . . . the effect of section 4 of the Bankers' Books Evidence Act is not limited to enabling a bank to produce copies of its account books and dispensing with the production of the original." In his view the case of a bank stood on a somewhat different footing by reason of section 4 of the Bankers' Books Evidence Act, which made the statements submitted in accordance with the provisions thereof admissible "as evidence of the matters, transactions and accounts therein recorded." The other learned Judge disagreed with this view. According to him, a certified copy of an entry in a banker's book filed under section 4 of the Bankers' Books Evidence Act was not by itself sufficient to charge any person with liability. He was also of the view that, apart from the statement of accounts so filed, there was no other evidence worth the name to corroborate the same and, there fore, the plaintiff in the suit had failed to prove its claim. The third learned Judge, who heard the reference, merely endorsed the opinion of the learned Judge who disagreed with trial Court gar without giving any reason of his own. The appellants have supported the view taken in the dissenting judgment. It is necessary, therefore, to examine first the scope of section 4 of the Bankers' Books Evidence Act, which provides as follows :- "

4. Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings, be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise." It will be observed that all that this section says is that the certified copy shall be prima facie evidence of the existence of such an entry in the books of the bank and shall be admitted as evidence of the matters, transactions and accounts therein recorded to the same extent as the original entry itself is now by law admissible, but no further or otherwise. It does not purport, therefore, to give the certified copy any greater efficacy than the original itself. It merely provides a simplified mode of proof of the original entry, provided the original entry itself is relevant to the enquiry or was admissible under the law prevailing in 1891. The Evidence Act, which was enacted in 1872, was a law applic able on the date of the enactment of the Bankers' Books Evidence Act, and it clearly governed the proof of the original entry lf under that Act the original entry was not by itself sufficient to charge a person with liability the certification of that entry under the latter Act could not make it so. We must not also confuse between admissibility in evidence and sufficiency to charge with liability. It is with the latter that we are concerned here and this is not dealt with by the Bankers' Books Evidence Act. Even with regard to section 3 of the English Bankers' Books Evidence Act, 1879, which stops at the word "recorded" and does not contain the rest of the words to be found in section 4 of our own Act, Paget in his law of Banking has observed that the "object of the above Act is to avoid the inconvenience and dislocation of business, formerly entailed on bankers by their being compelable to produce their books in legal proceedings," but even so it seems that in England where the bank is itself a party to the litigation it can still be compelled to produce its original books under a supoena duces tecum. Thus in the case of Douglass v. Lloyds Bank Limited ((1929) 34 Commercial Cases 263) the bank was made to produce its old deposit ledgers to trace the deposit alleged to have been made in 1866 and not repaid. The bank could produce its old ledgers only up to 1873. Hence the Court held that since the bank had no record of the subsistence of this deposit it confirmed its view that the deposit had been repaid. The same is the view of the learned Editor of Halsbury's Statutes, 2nd Edition (Vide Volume 9, page 599). We are unable, therefore, to agree that the mere production of a certified copy of the account was by itself sufficient to charge the defendants with liability. The copy produced was tantamount, however, to production of entries from the original books of account. Those entries could have been admissible in evidence only for the purposes mentioned under the Evidence Act and to the extent therein provided. Section 34 of the Evidence Act provides that "Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability." It is clear from this section that corroboration is necessary of the entry to charge a person with liability, but as to what should be the nature or the extent of the corroboration no hard and fast rule can be laid down, for, that must depend on the circumstances surrounding each transaction and the reliability of the manner in which the account has been kept. There can be no doubt in the present case that the entries were relevant in evidence. The question, therefore, now is as to whether there were such corroborative circumstances as to make them also sufficiently reliable for charging the defendants with liability. Two of the learned Judges of the High Court have taken the view that the admissions of the defendants were alone sufficient to furnish such corroboration. We have already referred to the oral evidence of the witnesses which shows that the statement of account had been properly prepared from the relevant books of account and that the defendants did have an overdraft account with this bank. This has now been further confirmed by the additional evidence of the Ex-Managing Director of the Bank. The defendant Muhammad Siddiq had himself in his evidence also admitted the execution of the pronotes and the cash credit agreements and the fact that he had executed these for "fixing the limit of the loan" which he had taken or could take from the bank. But in his evidence he set up the case that these advances were made against the security of goods which had not been returned to him. The Ex-Managing Director admitted the pledge of goods but stated that a delivery order for these goods was issued in favour of this defendant but the goods could not be taken delivery of as he had in the meantime been declared an evacuee by the Government of India. Even assuming that some goods were pledged with the bank as security for the advance this does not, in our opinion, absolve the defendant from his liability to clear his dues. The banker only acquires a lien over such pledged goods for the recovery of his dues and has a right, after notice to the debtor, to sell those goods to reimburse himself But it is only where such a sale is actually held that the debtor can claim an adjustment of the sale proceeds of the goods against the amount claimed by the bank There is no evidence in the present case that any goods were, in fact, sold by the bank or that the bank still retains any goods as such security. Apart from the above, we have also examined the certified copy of the statement of account filed under section 4 of the Bankers' Books Evidence Act and we find therefrom that not only the withdrawals but also the deposits made by the defendants have been shown therein. So far as the deposits are concerned, they were entries against the interest of the bank and were thus clearly admissible in evidence as admissions under section 21 of the Evidence Act. But, besides being so admissible, these regular entries of deposits also furnish inherent evidence of the reliability of the said statement of account. They disclose a mutuality in the account which by itself is a guarantee of its reliability and are assurance that even the debit entries or withdrawals shown therein were, in the circumstances, genuine evidence of transactions actually entered into. We cannot, therefore, help observing that after the defendant had admitted that he had an account with the bank and had also borrowed money from the bank on the basis of the arrangement for which he had admittedly executed the promissory notes and the cash agreements there could be no manner of doubt that he had an overdraft account. This has also been corroborated by Inayat Ali, the then Manager of the Delhi Branch. Again, it is clear that the withdrawals had taken place by cheques, the numbers of which have been mentioned in the statement of account (Exh. P. 5). It would have been quite easy for the defendant to challenge the correctness of these entries by a reference to the cheque counterfoils which normally would have been in his possession. The fact that this was not done clearly shows that the defence was not in a position to challenge the correctness of those entries. The evasive answers given by the defendant as to the details of his transactions with the bank also confirm us in the view that the defendant had no real answer to the claim. These facts, in our view, did furnish abundant corrobora tion of the entries in the statement of account, and, therefore, even under section 34 of the Evidence Act those entries so corroborated were admissible and were sufficient to charge the defendants with liability for the amount claimed. In this view of the matter we are, though for slightly different reasons, in agreement with the majority opinion in the High Court that the plaintiff's suit should have succeeded. We, accordingly, dismiss this appeal with costs. A. H. Appeal dismissed.