Bank Of India vs Jagdish Chandra
2024 Latest Caselaw 12469 MP

Madhya Pradesh High Court

Bank Of India vs Jagdish Chandra on 3 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                                 ON THE 3 rd OF MAY, 2024
                                             SECOND APPEAL No. 290 of 2001

                           BETWEEN:-
                           1. BANK OF INDIA, A BODY CORPORATE CONSTITUTED
                           UNDER THE BANKING COMPANIES (ACQUISITION AND
                           TRANSFER OF UNDERTAKING) ACT, 1970 HAVING ITS
                           HEAD OFFICE AT EXPRESS TOWERS, NARIMAN POINT,
                           MUMBAI - 400 021

                           2. BANK OF INDIA, BRANCH MHOW, SIMROL ROAD,
                           MHOW, THROUGH ITS BRANCH MANAGER

                           3. TARUN PARIKH S/O AMBALAL PARIKH, BRANCH
                           MANAGER, BANK OF INDIA

                           4. BOI MUTUAL FUND, STOCK EXCHANGE BUILDING,
                           DALAL CHAMBER, STREET, BOMBAY

                           5. DETOMATICS LIMITED, STATE BANK OF INDIA,
                           BUILDING BANK STREET, BOMBAY

                                                                                     .....APPELLANTS
                           (NONE FOR THE APPELLANTS)

                           AND
                           JAGDISH CHANDRA S/O RADHESHYAM GOYAL, AGED :
                           47 YEARS, OCCUPATION : BUSINESS, R/O 1636, KAPADA
                           GALI, MHOW (MADHYA PRADESH)

                                                                                    .....RESPONDENT
                           (NONE FOR THE RESPONDENT)

                                 Th is appeal coming on for hearing this day, t h e court passed the
                           following:
                                                          JUDGMENT

The appellants have preferred this second appeal under Section 100 of Code of Civil Procedure, 1908 (in short, 'CPC') being aggrieved by the

judgment and decree dated 29/03/2001 passed by I Additional District Judge, Mhow, District Indore (M.P.) in Regular Civil Appeal No.22/2000, thereby by allowing the appeal filed by the respondent / plaintiff by setting aside the judgment and decree dated 23/02/2000 passed by Civil Judge, Class-I, Mhow, District Indore (M.P.) in Civil Suit No.5-B/1993, by which the suit filed by the respondent / plaintiff for declaration has been dismissed.

2. The brief facts of the case are that respondent / plaintiff filed a civil suit before the trial Court for declaration by stating that he being a member of the scheme known as BOI Mutual Fund 1990, as such he is entitled to get consequential benefit of the scheme. It is also alleged that requisite amount of

Rs.10,000/- has been deposited through an agent with required form of membership, but the defendants did not issue certificate of membership to plaintiff. Thereafter, plaintiff has sent a registered notice to the appellants / defendants No.1 and 4, but vide reply dated 19/12/1992 they have replied that plaintiff is not entitled to get the benefit of aforesaid scheme. Hence, it is prayed that defendants be directed to issue certificate under the scheme or in alternate Rs.10,000/- along with interest be returned to plaintiff.

3. The appellants / defendants denied all the plaint averments in their written statement by stating that a sum of Rs.10,000/- was neither deposited by the plaintiff nor by his agent. Since the amount as required under the scheme was not deposited, his form for membership was not at all forwarded to the Bank. The alleged agent, who is a retired employee of the Bank is well acquainted with the procedure. The suit filed by the plaintiff is suffering for mis- joinder and non-joinder of necessary party, therefore, the suit deserves to be dismissed.

4. The trial Court on the basis of the aforesaid pleading framed the issues

and directed both the parties to adduce their evidence and after recording the evidence, the trial Court has dismissed the suit filed by the respondent / plaintiff. Being aggrieved by the judgment and decree passed by the trial Court, respondent / plaintiff has preferred a first appeal, which has been allowed vide judgment and decree dated 29/03/2001 by reversing the judgment and decree dated 23/02/2000 passed by the trial Court. Hence, this second appeal by the appellants / defendants.

5. Learned counsel for the appellants / defendants contended that the First Appellate Court has committed a grave error of law and fact. The Appellate Court has erred in coming to the conclusion that plaintiff has deposited a sum of Rs.10,000/- on 30/08/1990 only on the basis of a counter part, but counter receipt was not filed and proved by the plaintiff. The First Appellate Court has ignored the material pleadings and the evidence adduced by the appellants. The amount, which has not been deposited in the bank could not find place in the register. The impugned judgment and decree passed by the First Appellate Court is erroneous. Hence, prays that appeal be allowed and the judgment and decree passed by the First Appellate Court be set aside with costs.

6. At the stage of final argument, both the parties remain absent and nobody appeared for final argument on their behalf, therefore, this appeal is

being decided on its own merit, on the basis of record of both the Courts below.

7. The following substantial question of law arises for consideration in this appeal:

"Whether, the learned lower appellate Court was justified in reversing the judgment and decree of the

trial Court specially in absence of the necessary documentary evidence on the strength of which the suit of respondent / plaintiff could have been decreed?"

8. The burden of proof lies upon the plaintiff that he has deposited the said amount in the appellant's Bank. The plaintiff can succeeds on his own strength. Respondent / plaintiff Jagdish Chandra Goyal (PW-1) before the trial Court categorically stated that he has deposited Rs.10,000/- in the Bank of India, Branch at Mhow on the basis of form issued by respondent No.1 i.e. Ex.-P/1, which was issued Mr. Parikh with the seal impression of the concerned Bank. He has deposited the money in the said scheme with a belief that he will get double amount after five years. His family members have also deposited the money in the said scheme and they have received the certificate sent by defendants No.1 and 2, but defendants No.1 and 2 did not issued any certificate to him. Then he sent a notice (Ex.-P/3) on 06/04/1991 to the Bank, thereafter, he received a reply (Ex.-P/4) from the Bank in which it has been mentioned that "you have not deposited money in the Bank". Detomatics Limited has also sent a letter dated 27/05/1991, then he sent a registered notice through his counsel to the defendants. Plaintiff in para 10 of his cross-examination admits that he has deposited an mount of Rs.10,000/- on the counter of concerned Bank and receipt (Ex.-P/1) has been issued by the Bank, but from perusal of the Ex.-P/1 it appears that nothing has been mentioned in the slip (Ex.-P/1) that in which scheme the amount has been deposited. Plaintiff Jagdish in para 15 also admits that earlier he has filed a petition before the Consumer Forum claiming the same relief, but the same has been dismissed.

9. Harprasad Mishra (PW-2) deposed that he has been appointed as an Agent by the Band of India in respect of POI Scheme and plaintiff and his

family members filled ten forms and deposited Rs.60,000/-. He has issued receipt (Ex.-P/1), but Harprasad in his cross-examination admits that cashier has not issued any counter slip in respect of deposit of amount of Rs.60,000/- and he did not receive any counter slip for the aforesaid deposit of Rs.10,000/-. Bank had not paid any commission to him in respect of deposit of Rs.10,000/- of Jagdish Chandra Goyal.

10. Apart from the above Tarun Kumar (DW-1) categorically stated in his statement that Harprasad Mishra was only an Agent and deposit receipt was issued by the Cashier and he has issued Ex.-P/1 on the belief that Harprasad has deposited the same form, but after matching it with the counter slip, it has been gathered that plaintiff Jagdish Chandra Goyal did not deposit the aforesaid amount in the Bank.

11. From perusal of the entire evidence available on record, it appears that the counter slip of the form is neither the proof of depositing the amount nor is having any evidentary value until and unless the counter receipt is shown to be in existence in this regard. The plaintiff has produced only a slip (Ex.-P/1) in the evidence, but he did not file counter receipt which was either in possession of the plaintiff or his Bank Agent Harprasad Mishra.

12. As per the Banking Rules the appellant Bank has to maintain record by entering all the transactions in the Bank records during the course of business, but the said amount was never deposited in the appellant Bank and could not find any space in register, therefore, on the basis of Ex.-P/1, which is not supported by any other relevant documents, the plaintiff has failed to prove alleged transaction of Rs.10,000/- in the aforesaid scheme, therefore, on the basis of aforesaid evidence the trial Court has rightly dismissed the plaintiff's suit.

13. The First Appellate Court has erred in coming to the conclusion that plaintiff has deposited a sum of Rs.10,000/- on 30/08/1990, which is not supported by any documentary evidence. Hence, the First Appellate Court has committed a grave error of law and fact in decreeing the suit in favour of the plaintiff by reversing the judgment and decree passed by the trial Court, which is based upon the cogent oral as well as documentary evidence available on record, therefore, the impugned judgment passed by the First Appellate Court is found against the law and facts available on record and it is also perverse with facts and circumstances of the case.

14. Accordingly, second appeal is allowed and the impugned judgment and decree dated 29/03/2001 passed by the First Appellate Court is hereby set aside by affirming the judgment and decree dated 23/02/2000 passed by the trial Court.

No order as to costs.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej