Full Judgment Text
$~R-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of hearing and Order: 29 August 2017.
+ RFA 70/2009
STANDARD CHARTERED BANK
..... Appellant
Through: Mr. Sanjay Gupta, Mr. Ateev Mathur,
Ms. Jagriti Ahuja, Advocates
versus
SBI & ANR.
..... Respondent
Through: Ms. S.L. Gupta, Advocate for SBI
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
O R D E R
% 29.08.2017
P.S. TEJI, J. (ORAL)
1. Aggrieved by the judgment and decree dated 31.10.2008, passed
by the learned Additional District Judge, Delhi, the appellant has
preferred this present appeal.
2. The facts as enumerating from the record are that the
plaintiff/respondent had filed a suit for recovery of Rs.10,63,180/-
against the defendant/appellant bank. The plaintiff/respondent bank had
a current bank account of National Thermal Power Corporation (NTPC)
and the NTPC during the course of reconciliation of their said current
bank account, mentioned four forged cheques, namely- No.566603 for
Rs.3,08,000/-, No.566623 for Rs.1,48,000/-, No.566634 for
Rs.2,80,000/- and No. 566610 for Rs.2,67,000/-, which were not issued
R.F.A. No.70/2009 Page 1 of 7
by them and all the said cheques were drawn in favour of one Mahesh
Divedi, and had been debited to their said account and the said forged
cheques were collected in clearing by the defendant/appellant bank. The
defendant No.2 is alleged to have approached the defendant/appellant
bank, posing himself as Mahesh Divedi for the purpose of opening a
th
saving bank account around 16 November, 1999. The
defendant/appellant bank allegedly, without making any inquiry as to the
credentials of defendant no.2 opened the said account, thereby not
following the requirement as laid down under Section 35A of the
Banking Regulation Act, 1949. The defendant no.2 is said to have made
an initial deposit in his bank account, which was withdrawn
subsequently in part and soon thereafter, the four cheques mentioned
above were all given to the defendant/appellant bank for collection,
which the defendant/appellant bank permitted the withdrawal of the four
cheques by the defendant no.2. It is further alleged that the customer of
the plaintiff/respondent bank, NTPC had stated clearly that all the said
four cheques were forged and had not been issued by the NTPC or under
its authority.
3. The defendant/appellant bank in its written statement has stated
that one Mahesh Divedi opened a savings account with them. The said
account was opened in pursuance of the compliance of RBI guidelines
and in accordance with the prevalent banking norms and practices. Mr.
Mahesh Divedi, subsequently deposited the said four cheques which
were sent for clearing by the defendant/appellant bank in their normal
course of banking business. The said cheques were said to have been
first cleared by the payee bank which is the plaintiff/respondent bank in
R.F.A. No.70/2009 Page 2 of 7
the present matter. Upon receiving a clearance by the payee bank, the
account of Mahesh Divedi was said to have been credited with the
proceeds of the said four cheques. Subsequently, Mahesh Divedi
withdrew the amount of the cheques so credited to his account. The
defendant/appellant bank has categorically stated in its written statement
that opening of a bank account and the clearing of a cheque are two
different issues and the same cannot be clubbed together. Furthermore,
the defendant/appellant bank was well within its duty of opening the
bank account of Mahesh Divedi as it followed all the necessary
guidelines prescribed by the RBI and thus it cannot be held responsible
by the plaintiff/respondent bank which is the payee bank in this case
with respect to wrongful clearing of the cheque.
4. Replications to the written statements were filed on behalf of the
plaintiff/respondents. On the basis of pleadings of the parties, following
issues were framed by the Court below:
(a) Whether the present suit has been filed by a duly
authorized person? OPP
(b) Whether the plaintiff is entitled to claim the suit
amount? If so, against whom? OPP
(c) Whether the plaintiff is entitled to claim interest? If so,
at what rate, on what amount and for which period?
OPP
(d) Whether this court has no territorial jurisdiction to try
and decide the present suit? OPD-1
(e) Whether the defendant is liable to pay the suit amount
to the plaintiff on account of any negligence? OPP
(f) Whether the suit is bad for non joinder of parties? OPD
R.F.A. No.70/2009 Page 3 of 7
(g) Relief
5. To prove its case, the plaintiff/respondent bank examined PW1-
P.G.Tayal, PW2-K.C.Goel, PW3-Rakesh Mohan Chaudhary and PW4-
Rajinder Kumar and on the other hand, the defendant/appellant bank
examined only one witness being DW1-Ramesh Kumar Wahi.
6. All the issues framed by the court below were decided in favour
of the plaintiff/respondent bank and against the defendant/appellant.
Accordingly the impugned judgment and decree dated 31.10.2008, was
passed in the suit. Being aggrieved by the said judgment and order this
instant appeal is preferred.
7. The defendant/appellant bank has alleged that the NTPC had
informed the plaintiff/respondent bank that the four cheques in question
had not been issued by NTPC. Furthermore, NTPC alleged negligence at
the ends of appellant/defendant bank and the same was admitted at the
banks instance. It is the submission of the defendant/appellant bank that
it was infact NTPC’s money which was paid into the account of Mahesh
Divedi and it was thus, NTPC which was put at a loss. It was further
contended on behalf of the defendant/appellant that the account holder -
Mahesh Divedi was not made a party to the suit. Further, the
defendant/appellant bank has contended that it was protected under
Section 131 of Negotiable Instruments Act. It was submitted by the
defendant/appellant bank that it is not disputed that cheques were
presented to the plaintiff /respondent and cleared by the same. The
proceeds of the said cheques were collected in good faith and without
R.F.A. No.70/2009 Page 4 of 7
negligence by the defendant/appellant bank, thus the appellant bank was
entitled to protection under Section 131 of Negotiable Instruments Act.
8. Learned counsel appearing on behalf of the appellant referred the
judgment of this court in W.P. (C) No. 6201/2014 titled as Axix Bank vs.
Punjab National Bank & Anr, decided on 20.03.2015 to contend that if
the defendant/appellant bank happened to be negligent then the appellant
is equally negligent. Therefore, the decree should have been passed
keeping in view the contributory negligence about the entire sum. The
argument advanced by counsel is contrary to the pleadings before court
below. As per the defendant/appellant he had followed the procedure
regarding opening of account as per normal business norms and the
amount collected from the plaintiff/respondent bank and credited in the
account of the customer. Therefore, there was no plea or finding of the
court below that there was contributory negligence on the part of the
parties. Four cheques, being - No.566603 for Rs.3,08,000/-, No.566623
for Rs.1,48,000/-, No.566634 for Rs.2,80,000/- and No. 566610 for
Rs.2,67,000/-, which were cleared in bonafide believe that the same has
been sent by the financial institution, i.e. the bank and subsequently it
was found that the cheques were forged against which the payments
were made.
9. I have heard the submissions made on behalf of counsel appearing
for both the sides and perused the material placed on record as well as
the impugned judgment.
10. After hearing both the sides, this court observes that the main
grouse of the defendant/appellant bank is that it had been working as a
R.F.A. No.70/2009 Page 5 of 7
Financial Institution under the bonafide practice of the bank and in the
same capacity it opened the said account of Mahesh Divedi. The
defendant/appellant bank cannot be said to be negligent for opening the
account and neither for the amount collected from the plaintiff bank
which was debited to the account of their customer Mr. Mahesh Divedi.
Ultimately he is a beneficiary, so the present appellant cannot be made
to suffer a loss on account of the day to day business transactions being
taken place under the bonafide practice of the bank.
11. The admitted fact in the present case is that the cheques were
deposited by Mr. Mahesh Divedi who happened to be the customer of
the defendant/appellant bank and if a wrong claim with respect to the
forged cheques or documents by Mr. Mahesh Divedi is made, then the
bank need not suffer in that respect. It has emerged during the course of
arguments on the basis of the record that Mahesh Divedi was known to
the appellant bank and as per the NTPC, it was under no obligation to
pay any amount to Mr. Mahesh Dwivedi nor to the State Bank of India,
i.e., the plaintiff/respondent. In such a scenario, this court, on the basis
of the case of the defendant, is of the view that the defendant bank
should not be made to suffer on account of any payment debited to the
account of Mahesh Divedi or released to him. As a result, the appellant
would always be at a liberty to claim the decretal amount or to sue
Mahesh Divedi for the loss suffered by the appellant on account of
payment of this decretal amount with respect to the release of payment
to him.
12. So far as the impugned judgment and decree passed by the trial
court, this court observes that in view of the aforesaid discussion, the
R.F.A. No.70/2009 Page 6 of 7
issues have been rightly decided by the Court below in favour of the
plaintiff/respondent bank and against the defendant/appellant. There is
no error in the judgment and decree passed by the trial court and the
same is accordingly upheld.
13. The present appeal stands disposed off.
P.S.TEJI, J
AUGUST 29, 2017
pkb
R.F.A. No.70/2009 Page 7 of 7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of hearing and Order: 29 August 2017.
+ RFA 70/2009
STANDARD CHARTERED BANK
..... Appellant
Through: Mr. Sanjay Gupta, Mr. Ateev Mathur,
Ms. Jagriti Ahuja, Advocates
versus
SBI & ANR.
..... Respondent
Through: Ms. S.L. Gupta, Advocate for SBI
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
O R D E R
% 29.08.2017
P.S. TEJI, J. (ORAL)
1. Aggrieved by the judgment and decree dated 31.10.2008, passed
by the learned Additional District Judge, Delhi, the appellant has
preferred this present appeal.
2. The facts as enumerating from the record are that the
plaintiff/respondent had filed a suit for recovery of Rs.10,63,180/-
against the defendant/appellant bank. The plaintiff/respondent bank had
a current bank account of National Thermal Power Corporation (NTPC)
and the NTPC during the course of reconciliation of their said current
bank account, mentioned four forged cheques, namely- No.566603 for
Rs.3,08,000/-, No.566623 for Rs.1,48,000/-, No.566634 for
Rs.2,80,000/- and No. 566610 for Rs.2,67,000/-, which were not issued
R.F.A. No.70/2009 Page 1 of 7
by them and all the said cheques were drawn in favour of one Mahesh
Divedi, and had been debited to their said account and the said forged
cheques were collected in clearing by the defendant/appellant bank. The
defendant No.2 is alleged to have approached the defendant/appellant
bank, posing himself as Mahesh Divedi for the purpose of opening a
th
saving bank account around 16 November, 1999. The
defendant/appellant bank allegedly, without making any inquiry as to the
credentials of defendant no.2 opened the said account, thereby not
following the requirement as laid down under Section 35A of the
Banking Regulation Act, 1949. The defendant no.2 is said to have made
an initial deposit in his bank account, which was withdrawn
subsequently in part and soon thereafter, the four cheques mentioned
above were all given to the defendant/appellant bank for collection,
which the defendant/appellant bank permitted the withdrawal of the four
cheques by the defendant no.2. It is further alleged that the customer of
the plaintiff/respondent bank, NTPC had stated clearly that all the said
four cheques were forged and had not been issued by the NTPC or under
its authority.
3. The defendant/appellant bank in its written statement has stated
that one Mahesh Divedi opened a savings account with them. The said
account was opened in pursuance of the compliance of RBI guidelines
and in accordance with the prevalent banking norms and practices. Mr.
Mahesh Divedi, subsequently deposited the said four cheques which
were sent for clearing by the defendant/appellant bank in their normal
course of banking business. The said cheques were said to have been
first cleared by the payee bank which is the plaintiff/respondent bank in
R.F.A. No.70/2009 Page 2 of 7
the present matter. Upon receiving a clearance by the payee bank, the
account of Mahesh Divedi was said to have been credited with the
proceeds of the said four cheques. Subsequently, Mahesh Divedi
withdrew the amount of the cheques so credited to his account. The
defendant/appellant bank has categorically stated in its written statement
that opening of a bank account and the clearing of a cheque are two
different issues and the same cannot be clubbed together. Furthermore,
the defendant/appellant bank was well within its duty of opening the
bank account of Mahesh Divedi as it followed all the necessary
guidelines prescribed by the RBI and thus it cannot be held responsible
by the plaintiff/respondent bank which is the payee bank in this case
with respect to wrongful clearing of the cheque.
4. Replications to the written statements were filed on behalf of the
plaintiff/respondents. On the basis of pleadings of the parties, following
issues were framed by the Court below:
(a) Whether the present suit has been filed by a duly
authorized person? OPP
(b) Whether the plaintiff is entitled to claim the suit
amount? If so, against whom? OPP
(c) Whether the plaintiff is entitled to claim interest? If so,
at what rate, on what amount and for which period?
OPP
(d) Whether this court has no territorial jurisdiction to try
and decide the present suit? OPD-1
(e) Whether the defendant is liable to pay the suit amount
to the plaintiff on account of any negligence? OPP
(f) Whether the suit is bad for non joinder of parties? OPD
R.F.A. No.70/2009 Page 3 of 7
(g) Relief
5. To prove its case, the plaintiff/respondent bank examined PW1-
P.G.Tayal, PW2-K.C.Goel, PW3-Rakesh Mohan Chaudhary and PW4-
Rajinder Kumar and on the other hand, the defendant/appellant bank
examined only one witness being DW1-Ramesh Kumar Wahi.
6. All the issues framed by the court below were decided in favour
of the plaintiff/respondent bank and against the defendant/appellant.
Accordingly the impugned judgment and decree dated 31.10.2008, was
passed in the suit. Being aggrieved by the said judgment and order this
instant appeal is preferred.
7. The defendant/appellant bank has alleged that the NTPC had
informed the plaintiff/respondent bank that the four cheques in question
had not been issued by NTPC. Furthermore, NTPC alleged negligence at
the ends of appellant/defendant bank and the same was admitted at the
banks instance. It is the submission of the defendant/appellant bank that
it was infact NTPC’s money which was paid into the account of Mahesh
Divedi and it was thus, NTPC which was put at a loss. It was further
contended on behalf of the defendant/appellant that the account holder -
Mahesh Divedi was not made a party to the suit. Further, the
defendant/appellant bank has contended that it was protected under
Section 131 of Negotiable Instruments Act. It was submitted by the
defendant/appellant bank that it is not disputed that cheques were
presented to the plaintiff /respondent and cleared by the same. The
proceeds of the said cheques were collected in good faith and without
R.F.A. No.70/2009 Page 4 of 7
negligence by the defendant/appellant bank, thus the appellant bank was
entitled to protection under Section 131 of Negotiable Instruments Act.
8. Learned counsel appearing on behalf of the appellant referred the
judgment of this court in W.P. (C) No. 6201/2014 titled as Axix Bank vs.
Punjab National Bank & Anr, decided on 20.03.2015 to contend that if
the defendant/appellant bank happened to be negligent then the appellant
is equally negligent. Therefore, the decree should have been passed
keeping in view the contributory negligence about the entire sum. The
argument advanced by counsel is contrary to the pleadings before court
below. As per the defendant/appellant he had followed the procedure
regarding opening of account as per normal business norms and the
amount collected from the plaintiff/respondent bank and credited in the
account of the customer. Therefore, there was no plea or finding of the
court below that there was contributory negligence on the part of the
parties. Four cheques, being - No.566603 for Rs.3,08,000/-, No.566623
for Rs.1,48,000/-, No.566634 for Rs.2,80,000/- and No. 566610 for
Rs.2,67,000/-, which were cleared in bonafide believe that the same has
been sent by the financial institution, i.e. the bank and subsequently it
was found that the cheques were forged against which the payments
were made.
9. I have heard the submissions made on behalf of counsel appearing
for both the sides and perused the material placed on record as well as
the impugned judgment.
10. After hearing both the sides, this court observes that the main
grouse of the defendant/appellant bank is that it had been working as a
R.F.A. No.70/2009 Page 5 of 7
Financial Institution under the bonafide practice of the bank and in the
same capacity it opened the said account of Mahesh Divedi. The
defendant/appellant bank cannot be said to be negligent for opening the
account and neither for the amount collected from the plaintiff bank
which was debited to the account of their customer Mr. Mahesh Divedi.
Ultimately he is a beneficiary, so the present appellant cannot be made
to suffer a loss on account of the day to day business transactions being
taken place under the bonafide practice of the bank.
11. The admitted fact in the present case is that the cheques were
deposited by Mr. Mahesh Divedi who happened to be the customer of
the defendant/appellant bank and if a wrong claim with respect to the
forged cheques or documents by Mr. Mahesh Divedi is made, then the
bank need not suffer in that respect. It has emerged during the course of
arguments on the basis of the record that Mahesh Divedi was known to
the appellant bank and as per the NTPC, it was under no obligation to
pay any amount to Mr. Mahesh Dwivedi nor to the State Bank of India,
i.e., the plaintiff/respondent. In such a scenario, this court, on the basis
of the case of the defendant, is of the view that the defendant bank
should not be made to suffer on account of any payment debited to the
account of Mahesh Divedi or released to him. As a result, the appellant
would always be at a liberty to claim the decretal amount or to sue
Mahesh Divedi for the loss suffered by the appellant on account of
payment of this decretal amount with respect to the release of payment
to him.
12. So far as the impugned judgment and decree passed by the trial
court, this court observes that in view of the aforesaid discussion, the
R.F.A. No.70/2009 Page 6 of 7
issues have been rightly decided by the Court below in favour of the
plaintiff/respondent bank and against the defendant/appellant. There is
no error in the judgment and decree passed by the trial court and the
same is accordingly upheld.
13. The present appeal stands disposed off.
P.S.TEJI, J
AUGUST 29, 2017
pkb
R.F.A. No.70/2009 Page 7 of 7