# SWARAN LATA GHOSH v. H. K. BANERJEE AND ANR

- **Citation:** [1969] 3 S.C.R. 976
- **Court:** Supreme Court of India
- **Decided:** 1969-03-12
- **Case number:** Civil Appeal No. 662 of 1966
- **Bench:** J. C. Shah, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/swaran-lata-ghosh-v-h-k-banerjee-and-anr-4709
- **Pages:** 7

## Headnote

Practice and Procedure-Chartered High Court-Judgment-Duty to
give reasons.
After the death of the appellant's husband who was an attorney-atlaw, the first respondent filed a suit on the original side of the Calcutta
High Court against the appellant and her minor son, for a decree for
Rs. 15,000 and interest claiming that the amount was deposited with the
appellant's husband for the purpose of investing it and that the appellant's
husband agreed to pay interest at certain rates.
The appellant filed a
written statement denying the claim in its entirety. The first respondent
produced extracts of bank accpunts to show that the money had passed
but there was no documentary evidence supporting the case relating to
the agreement between him and the appellant's husband.
To prove his
case and the terms of the deposit which according to him were orally
agreed upon, the first respondent examined himself and three other wit~
nesses.
The appellant appeared by counsel and the cross-examination on
behalf of the appellant was elaborate and showed that the claim wa,s contested fully and that the defence was not confined to the extent of the
appellant's liability.
The trial Judge gave a pe'rsonal decree against the
appellant but did not frame any issues or record any reasons in support
of his conclusion.
In appeal under the
Letters Patent, thou2h several
grounds on the merits were raised in the memorandum of appeal, the
appellate Bench also did not give any reasons but merely modified the
decree by limiting it to the estate inherited by the appellant.
In appeal to this Court,
HELD: Under 0. XLIX, r. 3(5), Civil Procedure Code, rr. 1 to' 8
of O. XX do not apply to a Chartered High Court in the exercise of its
ordinary or extraordinary original jurisdiction, and hence, a Judge of a
Chartered High Court is not obliged to record a judgment giving reasons
in accordance with- the provisions of 0. XX, rr. 4(2) and s.· But the
High Court must exercise judicial discretion in exercising that powe'r, be·
cause, the recording of reasons is intended to ensure that the decision was
not the result of a whim or fancy but of a judicjal approach, that the
adjudication was according to law and procedure e·stablished by law, and
that when the judgment is subject to appeal, the .Appellate Court may
have adequate material on which it may determine whethe~ the fac~ \~:e~e
properly ascertained and t~e law has been co~rectly apph~d ~esulting ID
a just decision.
The privilege of not recording reasons IS mtended to
apply where the action is undefended, wher~ the parties are not at iss~e
on any substantial ~auer.~ in a summary trial w~ere. leav~ to ~efend is
not granted, in making interlocutory orders or m disposing of formal
proceedings. [979 F-H; 980 F-Hl
In the present case, since there \Vas a contes~ _on m.erits, in the absenef
of any documentary evidence in the hand-wntmg of the
appellants
husband, the burden of proving hi• claim lay on the J!rst respondent, and
the oral testimony adduced by him had to be exammed m the context
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SWARAN LATA V, H. K. BANERJEE (Shah, J,)
977
of : (a) absence of correspondence relating to the transactions between
the first respondent and the appellant's husband; (b) absence of books
of account in support of the transaction; (c) improbability of such a
transaction between an attorney and his tjlient; (d) absence of previous
business o:r professional relationship between the
first
respondent
and
appellant's husband; (e) absence of vouchers supporting the alleged payment of interest, and similar weighty circumstances. In reaching his con·
clusion, the trial Judge had to consider the probabilities and circumstances
of the case and hence, there should have been a full record of the reasons
for his conclusion.[980 A-E; 981 D-G)

## Text

976
SWARAN LATA GHOSH
v.
H. K. BANERJEE AND ANR.
March 12, 1969
(J. C. SHAH AND A. N. GROVER, JJ.)
Practice and Procedure-Chartered High Court-Judgment-Duty to
give reasons.
After the death of the appellant's husband who was an attorney-atlaw, the first respondent filed a suit on the original side of the Calcutta
High Court against the appellant and her minor son, for a decree for
Rs. 15,000 and interest claiming that the amount was deposited with the
appellant's husband for the purpose of investing it and that the appellant's
husband agreed to pay interest at certain rates.
The appellant filed a
written statement denying the claim in its entirety. The first respondent
produced extracts of bank accpunts to show that the money had passed
but there was no documentary evidence supporting the case relating to
the agreement between him and the appellant's husband.
To prove his
case and the terms of the deposit which according to him were orally
agreed upon, the first respondent examined himself and three other wit~
nesses.
The appellant appeared by counsel and the cross-examination on
behalf of the appellant was elaborate and showed that the claim wa,s contested fully and that the defence was not confined to the extent of the
appellant's liability.
The trial Judge gave a pe'rsonal decree against the
appellant but did not frame any issues or record any reasons in support
of his conclusion.
In appeal under the
Letters Patent, thou2h several
grounds on the merits were raised in the memorandum of appeal, the
appellate Bench also did not give any reasons but merely modified the
decree by limiting it to the estate inherited by the appellant.
In appeal to this Court,
HELD: Under 0. XLIX, r. 3(5), Civil Procedure Code, rr. 1 to' 8
of O. XX do not apply to a Chartered High Court in the exercise of its
ordinary or extraordinary original jurisdiction, and hence, a Judge of a
Chartered High Court is not obliged to record a judgment giving reasons
in accordance with- the provisions of 0. XX, rr. 4(2) and s.· But the
High Court must exercise judicial discretion in exercising that powe'r, be·
cause, the recording of reasons is intended to ensure that the decision was
not the result of a whim or fancy but of a judicjal approach, that the
adjudication was according to law and procedure e·stablished by law, and
that when the judgment is subject to appeal, the .Appellate Court may
have adequate material on which it may determine whethe~ the fac~ \~:e~e
properly ascertained and t~e law has been co~rectly apph~d ~esulting ID
a just decision.
The privilege of not recording reasons IS mtended to
apply where the action is undefended, wher~ the parties are not at iss~e
on any substantial ~auer.~ in a summary trial w~ere. leav~ to ~efend is
not granted, in making interlocutory orders or m disposing of formal
proceedings. [979 F-H; 980 F-Hl
In the present case, since there \Vas a contes~ _on m.erits, in the absenef
of any documentary evidence in the hand-wntmg of the
appellants
husband, the burden of proving hi• claim lay on the J!rst respondent, and
the oral testimony adduced by him had to be exammed m the context
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SWARAN LATA V, H. K. BANERJEE (Shah, J,)
977
of : (a) absence of correspondence relating to the transactions between
the first respondent and the appellant's husband; (b) absence of books
of account in support of the transaction; (c) improbability of such a
transaction between an attorney and his tjlient; (d) absence of previous
business o:r professional relationship between the
first
respondent
and
appellant's husband; (e) absence of vouchers supporting the alleged payment of interest, and similar weighty circumstances. In reaching his con·
clusion, the trial Judge had to consider the probabilities and circumstances
of the case and hence, there should have been a full record of the reasons
for his conclusion.[980 A-E; 981 D-G)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 662 of
1966.
Appeal by special leave from the judgment and order date<.!
August 4, 1964 of the Calcutta High Court in Appeal from Original Order No. 99 of 1963.
D. N. Mukherjee, for the appellant.
S. C. Majumdar, for the respondents.
The Judgment of the Court was delivered by
Shah, J.
Birendra Krishna Ghosh-hereinafter called
"Ghosh-was practising as an attorney-at-law in the High
Court of Calcutta. He died in August 1950. H. K. Banerje~
the first respondent herein-commenced in 1951
an action in
'he High Court of Calcutta on the original side against Swaran
.ata and Arun Kumar-widow and minor son respectively of
Jhosh-for a decree for Rs. 15,000 claiming that it was
the
balance of "capital deposits"
due to him
from
Ghosh
and
Rs. 1,535 interest due thereon.
The plaintiff claimed that he
had deposited with Ghosh Rs. 6,000 on December 10, 1946 for
the "specific purpose of investing the amount" and the latter
agreed to pay interest at the rate o.f 6% per annum and to repay
the same or any portion thereof when demanded; that on or
about February 17, 1948, he had deposited Rs.
10,000 with
Ghosh also for "the specific purpose of investing"
that
sum,
and the latter had agreed to pay interest at the rate of 7 % per
annum and to repay the same or part thereof when demanded;
that under the agreement Ghosh paid diverse sums of money as
interest, and on July 3, 1947 Ghosh repaid Rs. 1,000 out of
Rs. 6,000 deposited; and that the balance of Rs.
15,000 and
Rs. 1,535 interest due thereon were repayable by the defendants
to the plaintiff.
Swaran Lata filed a written statement denying the claim of
the plaintiff. She denied that the sums of Rs.
6,000 and
Rs. 10,000 were entrusted to or deposited with her husband as
alleged by the pl~intiff; she denied that her husband repaid any
amounts towards mterest or part payment of principal; and she
978
,
SUPREME COURT REPORTS
[ 1969] 3 S.C.R.
i
submitted that the suit was in any event barred by the law of
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limitation.
The trial of the suit commenced before Law, J., on July 12,
1962. In support of the plaintiffs case four
witnesses
were
examined. The plaintiff tendered in evidence extracts from certain Bank accounts and correspondence. He produced no· documentary evidence in support of his case that any amount
was
deposited with Ghosh, on terms set out in the plaint. Apparently he relied upon the entries in the extracts from the statements of account with the United Bank of India Ltd., the Imperial Bank of India, the Hooghly Bank Ltd. and
correspondence between him and Swaran Lata. The learned Judge by
order dated August 17, 1962, passed the following order :
"There will be a decree for Rs. 15,000 with interest on judgment on Rs. 15,000 at 6% per annum and
costs.
No interim inrerest allowed."
Pursuant to that order a decree was drawn up.
Against the decree Swaran Lata appealed to the High Court
under cl. 15 of the Letters Patent, and raised several grounds in
the memo of appeal on -the merits. The High Court disposed of
the appeal by a short judgment observing :
"We think that the plaintiff sufficiently proved the
case made in the plaint. On the 10th December, 1946
the plaintiff entrusted and
deposited with
Birendra
Krishna Ghosh a sum of Rs. 6,000 for the express and
specific purpose. of investing the sum to yield interest
at the rate of 6% per annum. He also entrusted and
deposited with Bircndra Krishna Ghose on the
17th
February 1948 a sum of Rs. 10,000 for 'the express
and specific purpose of investing the sum to yield interest at the rate of 7% per annum.'"
The Court observed that the amounts paid to Ghosh were deposits, within the meaning of Art. 60 of the Indian Limitation Act,
1908, and since interest was paid in respect of both the deposits
within three years of the institution of the suit, no question
of
limitat.ion arose, and the Trial Court had "rightly decreed
the
suit.''
The High Court, however, modified the decree passed
by the Trial Court and declared that the liability of the
defendants was not persona] and was limited only to "the assets and
properties" of Ghosh received by them.
With special leave,
Swaran Lata Ghosh has appealed to this Court.
The defendants had filed a written statement denying
the
avernments in the plaint and had contested the claim of the plaintiff.
The learned Judg.o apparently raised no issues.
We have
found in the printed paper book no record of any issues raised.
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SWARAN LATA V. 11. K. BANERJ.l!E (Shah, J,)
979
On behalf of the plaintiff, witnesses were examined to prove the
two deposits and the terms of the deposit which it was claimed
were orally agreed upon. Th=re was no documentary evidence
supporting the case of the plaintiff relating to the agreements
between him and Ghosh.
There was also no documentary evidence supporting the case of payment of interest on the amounts
deposited, or of re-payment of a part of the principal.
Indisputably the pleadings of the parties raised substantial issues of
fact for trial, and a lengthy trial was held. But the kamed Trial
Judge delivered no judgment. He merely decreed the
claim.
The decree was on the face of it erroneous, because it directed
Swaran Lala and her minor son Arun Kumar personally to pay
the amount decreed;
Trial of a civil dispute in Court is intended to achieve, according to Jaw and the procedure of the Court, a judicial deterntination between the contesting parties of the matter in controversy.
Opportunity to the parties interested in the dispute to present
their respective cases on questions of Jaw as well as fact, ascertainment of facts by means of evidence tendered by the parties,
and adjudication by a reasoned judgment of the dispute upon a
finding on the facts in controversy and application of the Jaw to
the facts found, are essential attributes of a judicial trial. In a
judicial trial the Judge not only must reach a conclusion which
he regards· as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental
process leading from the dispute to its solution. - A judicial determination of a disputed claim where substantial questions of law
or fact arise is satisfactorily reached, only if it be supported by
the most cogent reasons that suggest themselves to the Judge :
a mere order deciding the matter in dispute noi supported by
reasons is no judgment at all. Recording of reasons in support
of a decision of a disputed claim serves more purposes than one.
It is intended to ensure that the decision is not the result of whim
or fancy, but of a judicial approach to the matter in contest : it
is also intended to ensure adiudication of the matter according
to Jaw and the procedure established by Jaw. A party to the
dispute is ordinarily entitled to know the grounds on which the
Court has decided against him, and more so, when the judgment is
subject to appeal. The Appellate Court will then have adequate
material on which it may determine whether the facts are properly ascertained, the Jaw has been correctly applied and the
resultant decision is just. It is unfortunate that the learned TrialJudge has recorded no reasons in support of his conclusion, and
the High Court in appeal merely recorded that they thought that
the plaintiff had sufficiently proved the case in the plaint.
The defendants it is true Jed no oral evidence and produced
no documentary evidence: But the defendants -had apparently
LU Sup CJ/69-13
~80
SUPREME COURT REPORTS
(I 969) 3 s.C.R
no personal knowledge about the transactions and there is
no
clear evidence on the record that the first defendant Swaran Lata
had in her possession any books of account of the deceased which
she could have produced and had withheld. The burden of proving the claim in all its details lay upon the plaintiff. Absence of
documentary evidence in support of the case. made the burden
more onerous.
We are unable to agree with counsel for the plaintiff that
"for all practical purposes" the action was undefended and that
the Trial Judge recorded merely formal evidence in proof of the
plaintiff's case.
The defendants had filed a written statement
denying the plaintiff's claim, had appeared by counsel at
the
trial, and had challenged the plaintiff's evidence by intensive
cross-examination.
The plaintiff who was the principal witness
was asked as many as 31 7 questions and his examination appears
to have. taken the better part of a day.
In the course of the
examination in attempting to elicit the truth the learned Judge
took no mean or insignificant part. Three more witnesses were
also examined.
We are also unable to agree that the only plea raised at the
trial and in the Court of appeal was about the personal liability
of the defendants. The evidence led at the trial and the crossexamination amply establish that the defendants defended
the
claim on the merits.
The High Court in appeal modified the
decree and restricted it to the estate inherited by the defendants
from Ghosh. But there is no reason to hold that the only point
argued before the Trial Court related to the extent of liability of
the defendants. The grounds in the memorandum of appeal belie
that submission.
·
It is true that rr. I to 8 of 0. 20 of the Code of Civil Procedure are, by the express provision contained in 0. 49 r. 3 cl. ( 5)
inapplicable to a Chartered High Court in the exercise of its
ordinary or extraordinary original civil jurisdiction. A Judge of
a Chartered High Court is not obliged to record a judgment
strictly according to the provisions contained in rules 4 (2) and
5 of 0. 20 Code of Civil Procedure. But the privilege of not
recording a judgment is intended normally to apply where the
action is undefended, where the parties are not at issue on anv
substantial matter, in a summary trial of an· action where leave
to defend is not granted, in making interlocutory orders or in
disposing of formal proceedings and the like. Order 49 r. 3 of
the Code of Civil Procedure undoubtedly applies. to the trial of
suits; but the question is not one merely of power but of exercise
of judicial discretion in the exercise of that power. The function of a judicial trial is tu hear and decide a matter in contest
between the parties in open court in the presence of parties
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SWARAN LATA v. a 1:. BANELJEE (Shah, I.)
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according to the procedure prescribed for investigation of the dispute, and the rules of evidence. The conclusion of the Court
ought normally to be supported by reasons duly recorded. This
requirement transcends all technical rules of procedwe.
We may assume that the learned Trial Iudge was satisfied
that the claim of the plaintiff deserved to be decreed. But the
judgment of the learned Trial Judge was not final : it was subject
to appeal and unkss there was a reasoned judgment recorded by
the Trial Judge, an appeal against the judgment may turn out to
be an empty formality. A CoUit of appeal generally attaches
great value to the views formed by the Judge of First Instance
who had seen the witnesses and noted their demeanour. How
the Judge who tried the suit reacted to the evidence of a witness
may not always be found from the printed record.
The plaintiff's case was founded upon extracts of Bank accounts : the extracts however do not evidence the agreement
under which the money passed from the plaintiff to Ghosh. The
plaintiff had to prove not only that money passed from him to
Ghosh; he had to prove that money passed under the agreement
pleaded by him. Oral testimony of the plaintiff had to be
examined in the context of several weighty circumstances e.g.
complete absence of documentary evidence in the handwriting of
Ghosh; absence of correspondence relating to the transactio.as
between Ghosh and the plaintiff; absence of books of account in
support of the transactions; improbability of a transaction of the
nature pleaded between an attorney and the plaintiff; absence of
any previous business or professional relationship between Ghosh
and the pla'1!tiff; absence of vouchers supporting the alleged payment of interest and repayment of part of the principal and other
important circumstances. In reaching a conclusion the Court
had to consider the probabilities and the circumstances in which
the plaintiff alleged that he had deposited the two sums of money
with Ghosh. It was essentially a case in which there should have
been a full record of the reasons which persuaded the learned
Trial Judge to reach the conclusion he did. A mere order directing payment of the money, not supported by reasons, does not do
duty for a judgment according to law.
We are, therefore, constrained to come to the conclusion that
there has been no real trial of the defendants' case. It is a very
unfortunate state of affairs that eighteen years after the date on
which the suit was instituted, we have to remand the suit for trial
according to law. But we sec no other satisfactory alternative.
The decree passed by the High Court is set aside. The suit
stands remanded to the Court of First Instance for trial according to law. It will be open to the learned Judge who tries the
suit io proceed on tke evidence already on the record.
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SUPREME COURT REPORTS
( i969] 3 S.CJl.
parties desire to lead any additional evidence, he will give them
opportunity in that behalf. If the learned Judge is of the opinion
that the witnesses should be examined over again before him, he
may adopt that course.
As costs till now incurred are thrown away on account of
circumstances for which the parties may not be held responsible,
we direct that there will be no order as to costs till this date.
We may state that the observations made by us in the course
of this judgment are not intended to express any opinion by this
C0urt on the merits of the dispute.
V.P.S.
Case remanded.
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