Punjab & Sind Bank vs M/S. Textile Syndicate & Ors.
2012 Latest Caselaw 4509 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS)No.1923/2003

%                                                                30th July, 2012

PUNJAB & SIND BANK                                      ..... Plaintiff
                  Through:                   Mr. Rajinder Wali, Advocate.

                      versus

M/S. TEXTILE SYNDICATE & ORS.                 ..... Defendants
                   Through: Mr. D.P.S. Guliani, Defendant No.4 in
                            person.

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


    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

This suit CS(OS) No.1923/2003 was filed by the plaintiff-bank

against total of four defendants. Defendant Nos.1 and 2 were the beneficiaries

of the amounts received under the unauthorized banker's/Manager's cheque.

This Manager's/Banker's cheque was issued by the then Manager Mr. S.K.

Tyagi/ defendant No.3 under his signatures. Since the Manager's cheque

book was in the joint custody of the defendant No.3 with the defendant No.4

(defendant No.4 being the Accountant), liability of defendant no.4 is also

alleged.

2. This suit was originally filed in this Court, however, the suit was

thereafter transferred to the Debt Recovery Tribunal (DRT) after passing of

the Recovery of Debts Due to Banks and Financial Institutions Act, 1993

(RDDBFI Act). The O.A. before the DRT was decreed against the defendant

Nos.1 and 2, however, the DRT returned the OA so far as defendant Nos.3 and

4 are concerned to this Court inasmuch as the amount claimed as against the

defendant Nos.3 and 4, being the Manager and the Accountant of the plaintiff-

bank respectively, was not a 'debt' as per the definition of this expression

under the RDDBFI Act inasmuch as it did not arise out of a business

transaction of the bank and recovery against defendants no. 3 & 4 thus could

not be the subject matter of recovery under RDDBFI Act. After the file has

been received from the DRT, plaintiff-bank has led evidence. Defendant

Nos.3 and 4 failed to lead evidence and therefore their right to lead evidence

was closed.

3. The facts of the case as averred by the plaintiff-bank in the plaint

are that the defendant Nos.3 and 4, being the Manager and Accountant of the

plaintiff-bank at Guru Nanak Market, Hemkunt Colony, Greater Kailash I,

New Delhi branch illegally utilized a leaf from the Manager's cheque book

bearing No.485494 and transferred an amount of ` 25 lacs to the defendants

no. 1 & 2. This amount was credited in the account of the defendant Nos.1

and 2 and was utilized by the said defendants. The basic cause of action in the

plaint is the loss of money caused to the plaintiff-bank on account of the

aforesaid facts.

4. Plaintiff-bank has filed affidavits by way of evidence of Sh. J.S.

Tib as PW-3 and Sh. P.S. Kohli as PW-2. The two witnesses of the bank have

proved on record the factum with respect to credit of the amount under the

Manager's cheque bearing No.485494 for ` 25 lacs. The manager's cheque

has been proved and exhibited as Ex.PW3/1. The witness of the bank has

deposed to the fact that this banker's cheque was deliberately torn off, except

a portion thereof which was attached to the counterfoil, so as to destroy all

evidence with respect to making out of the banker's cheque. In my opinion

therefore defendant No.4 is also jointly and severally liable with the defendant

No.3 inasmuch as the custody of the manager's cheque book was jointly with

the defendant Nos.3 and 4.

5. The defendant Nos.1 and 2 had admitted their liability by means

of a letter dated 24.5.1993, and which aspect has been taken note of by the

DRT while passing the judgment against the defendant Nos.1 and 2 on

21.11.2001. The contents of the letter dated 24.5.1993 will thus also bind the

defendants no. 3 & 4. The statement of account of the bank has also been

filed and exhibited as Ex.PW3/4 and which contains the necessary entries.

The legal notice dated 30.4.1988 has been proved and exhibited as Ex.PW3/5

and the corresponding postal receipts have been proved and exhibited as

Ex.PW3/6 to Ex.PW3/12.

6. In my opinion, nothing material has been extracted from the

deposition of either PW-3 or PW-2 inasmuch as the deposition with respect to

the banker's cheque being unauthorisedly issued has not been shaken.

Similarly, there is already a decree against defendant Nos. 1 and 2 showing

that the amount was credited to the account of the defendant Nos.1 and 2 and

the plaintiff-bank was caused loss of this amount.

7. I may also state that now the Supreme Court in the case of Gulzar

Ali Vs. State of H.P. (1998) 2 SCC 192 has clarified that it is not necessary

that the documents can only be proved by the person before whom the

document is signed etc under Section 47 of the Evidence Act, 1872 and the

Supreme Court has held that under Section 47 a person who keeps custody of

the record can always prove the same. The Supreme Court has held that

ingredients as stated in Section 47 of the Evidence Act, 1872 are not

exhaustive of the methods of proving the documents in a case. The argument

of the defendant no.4 therefore that the statements of the witnesses of plaintiff

have no value as they were not posted in the branch at the relevant time is an

argument which I reject.

8. Once the defendants no. 3 & 4 failed to step into the witness box

to prove their case and had no courage to stand to the test of cross-

examination, the evidence led on behalf of the plaintiff has necessarily to be

believed.

9. In view of the above, the suit of the plaintiff-bank is decreed

against defendant Nos.3 and 4 for a sum of ` 25 lacs alongwith interest @ 9%

per annum simple pendente lite and future till realization. Plaintiff will also

be entitled to costs of the suit. Decree sheet be prepared.

VALMIKI J. MEHTA, J JULY 30, 2012 Ne