Sh. Jugal Kishore vs Bank Of India
2011 Latest Caselaw 5772 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 750/2002

%                                                        28th November, 2011

SH. JUGAL KISHORE                                         ..... Appellant
                            Through      Mr. Vineet Jhanji, Advocate.

                   versus

BANK OF INDIA                                          ..... Respondent
                            Through      Mr. V.K. Tandon, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.     The challenge by means of this Regular First Appeal (RFA) filed

under Section 96 Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the Trial Court dated 28.2.2002. By the impugned judgment,

the Trial Court dismissed the suit as barred by limitation by refusing to give

benefit to the appellant / plaintiff of the provision of Section 14 of the

Limitation Act, 1963 for the time taken by the appellant / plaintiff before the

Consumer Forum. It is not disputed that if the time spent in the litigation

before the Consumer Forum is excluded, then, the subject suit will be within

RFA No. 750/2002                                                            Page 1 of 5
 limitation.

2.     The facts of the case are that the appellant / plaintiff pleaded that he

had an account with the respondent / Bank and on 8.5.1994 after

withdrawing a sum of `25,000/- he was left with a credit balance of

`1,20,000/- in his account. The appellant / plaintiff pleaded that he never

got a new cheque book from the respondent / defendant / Bank and he was

shocked to learn on 21.5.1994 that a huge amount of `1,20,000/- was

debited from his account on 10.5.1994. It transpired that in fact a certain

cheque from a cheque book, which was allegedly received by the appellant /

plaintiff, was used for withdrawing the amount. The cheque in question was

the cheque bearing No.454652 of `1,20,000/-.

3.     When a legal notice was sent to the respondent / Bank, the respondent

/ Bank firstly stated that the said cheque bearing No.454652 was missing

from its records as also the acknowledgment slip indicating receipt of

cheque book by the appellant / plaintiff.

4.     The appellant / plaintiff, thereafter, filed a complaint before the

Consumer Forum, which was, however, dismissed because the Consumer

Forum found that the cheque requisition slip bore the signature of the

appellant / plaintiff of having received the cheque book.    The     Consumer

Forum, however, clearly observed that the appellant / plaintiff is left with the
RFA No. 750/2002                                                             Page 2 of 5
 remedy of Civil Courts in case the appellant / plaintiff is still of the opinion

that he has been defrauded.

5.     Before proceeding further, I may only state that it is settled law that

once a signature on a cheque of a customer of the bank is forged, there is no

mandate upon a bank to pay the amount, and the customer on showing the

cheque bearing his forged signature, is, entitled to recovery of the amount

from the bank, unless the bank shows that there was no negligence in

dealing with the subject cheque.

6.     A reference to the judgment of the Consumer Forum dated 1.12.1998

clearly shows that all these aspects have not been dealt with by the

Consumer Forum, and the only aspect dealt with is that there was no

deficiency of service because the appellant / plaintiff was found to have

signed the cheque requisition slip and, therefore, the receipt of the cheque

book. There is no discussion in the judgment of the Consumer Forum of the

fact that the subject cheque has been forged and, therefore, the forged

cheque not being a mandate upon the respondent / Bank to make payment

thereunder. Further and obviously, therefore, there is no discussion on any

alleged findings of lack of negligence of the respondent / Bank. As has

already been stated above, the Consumer Forum at the end of the judgment

observed that "complainant if so advised may seek his remedy in Civil
RFA No. 750/2002                                                             Page 3 of 5
 Courts".

7.     A reference to the impugned judgment shows that the Trial Court has

held that the Consumer Forum in fact went into the merits of the matter and,

therefore, the judgment of the Consumer Forum will effectively operate as

res judicata. I have already stated above, the issue is with regard to a forged

cheque not being a mandate upon the Bank to pay, and any issue of alleged

negligence of the Bank or non-negligence of the Bank was not an issue and

not decided by the Consumer Forum.

8.     In my opinion, therefore, the Trial Court was not justified in declining

the benefit of Section 14 of the Limitation Act, 1963 to the appellant /

plaintiff inasmuch as the appellant / plaintiff was bonafidely pursuing his

remedy in a wrong Court/forum i.e. the Consumer Forum, instead of the

appellant/plaintiff having approached the Civil Court. A plaintiff should not

be thrown out from the court, unless his case and the averments made by

him are looked into after proper trial in the case. This is, more so required in

the present case because of the fraud pleaded by the appellant/plaintiff and

the respondent / Bank pleading very surprisingly that the subject cheque was

lost and no longer available with it.

9.     I however note that I need not go into these aspects in detail herein,

because these aspects as to whether the cheque bore a forged signature of the
RFA No. 750/2002                                                             Page 4 of 5
 appellant / plaintiff or whether the respondent / Bank committed no

negligence and, therefore, they were not liable are aspects which will be

decided after trial in the suit at the stage of passing a final judgment.

10.    In view of the above, appeal is allowed. Impugned judgment dated

28.2.2002 is set aside. Appellant / plaintiff is granted benefit of Section 14

of the Limitation Act, 1963 by excluding the period / time taken in pursuing

the litigation before the Consumer Forum. The suit is, therefore, held to be

within limitation. The Trial Court will now, hear and dispose of the suit in

accordance with law and give findings on the merits of the matter, except the

issue of limitation. Parties are left to bear their own costs. Trial Court

records be sent back.

11.    Parties to appear before the District & Sessions Judge, Delhi on

5.1.2012 and on which date, the District & Sessions Judge will mark the suit

to a competent court for disposal in accordance with law.



                                               VALMIKI J. MEHTA, J.

NOVEMBER 28, 2011 dk