Delhi District Court
Varinder Talwar vs Kotak Securities Limited on 28 February, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 59120 of 2016
Date of Institution : 17.01.2006
Final arguments heard : 03.02.2023
Date of Judgment : 28.02.2023
Varinder Talwar
S/o Sh. D.D. Talwar
R/o Q-1/7, DLF,
Phase-II, Gurgaon-122002
Haryana .....Plaintiff
VS.
1. Kotak Securities Limited
Through, its Chairman & Managing Director
having its Regd. Office at Bukhtawar, 1st Floor,
229, Nariman Point, Mumbai-400021
Also at
202-217, Ambadeep Building,
Kasturba Gandhi Marg, New Delhi-110001.
2. ICICI Bank
Through its Chairman & Managing Director,
Having its Regd. Office at Landmark,
Race Course Circle, Alkapuri
BARODA-390015
Also At
ICICI Bank Limited
Through its Branch Manager,
Cannaught Place Branch,
Cannaught Place, New Delhi.
Also at
CS No. 59120 of 2016
VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 1 of 35
ICICI Bank Limited
Through its Branch Manager,
SSF-81, HUDA Shopping Center, Sector-14
GURGAON-122001
3. HDFC Bank Ltd
Through its Chairman & Managing Director,
Having its Regd. Office at:
HDFC Bank House, Senapati Bapat Marg.
Lower Parel (West), Mumbai-400013
Also at
HDFC Bank,
Through its Branch Manager, Kalkaji, New Delhi.
4. Standard Chartered Bank
Through its Chairman & Managing Director,
23-25, M.G. Road, Fort, Mumbai
Also At
Standard Chartered Bank
Through its Regional Head (Operations)
Consumer Division, 10 Sansad Marg,
New Delhi ......Defendants
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for recovery of ₹ 28,60,000/- along with interest.
2. The case of the plaintiff as pleaded in the plaint is as follows. It is stated in the plaint that the plaintiff carries on the sale and purchase of securities/shares. The plaintiff was maintaining a DEMAT account with the defendant no.1 i.e. Kotak Securities Ltd. The defendant no.1 used to deposit the payments realized through sale of the plaintiff's CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 2 of 35various securities/shares into the plaintiff's nominated bank account maintained with the plaintiff's banker i.e. the defendant no.2 ICICI Bank. On 12/07/2004, a sum of ₹ 23,80,256.90 became due and payable by the defendant no.1 to the plaintiff. The plaintiff instructed the defendant no.1 to deposit a sum of ₹ 22,00,000/- out of the outstanding amount into the plaintiff's bank account maintained with the defendant no.2. The plaintiff was informed that the defendant no.1 had deposited a sum of ₹ 22,00,000/- in the plaintiff's account with the defendant no.2 ICICI bank at its Connaught Place Branch, New Delhi on 13/07/2004. However, after a few days, the plaintiff learnt that the money was not credited into the plaintiff's account. Upon a query raised by the plaintiff, the plaintiff was informed by Mr. D. Kanan, CEO of defendant no.1 that a cheque bearing no. 0179835 dated 12/07/2004 drawn on the defendant no.4 Standard Chartered Bank for sum of ₹ 22,00,000/- was deposited into the plaintiff's account with the defendant no.2. On the plaintiff's enquiry, the defendant no.2, vide its letter dated 28/07/2004 informed that upon checking the records it was found that no such cheque had been received and since the instrument had not been collected by the said bank it was requested that the matter may be taken up with the drawer's bank for further investigation in this regard. On 28/07/2005, the plaintiff personally visited the office of the defendant no.1 and met the regional manager and submitted in writing that inquiries made from the defendant no.2 bank had revealed that no such cheque had ever been deposited in the plaintiff's account and therefore it was requested that the CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 3 of 35matter be investigated and also requested to make the payment at the earliest. Thereafter, the defendant no.1 informed the plaintiff that the enquiry made by them from their banker i.e. the defendant no.4 Standard Chartered Bank had revealed that the cheque bearing no. 0179835 had been credited into the account of one Sunil Narang maintained with the defendant no.3 HDFC Bank, and not into the plaintiff's account. Thereafter, the plaintiff visited the office of the defendant no.1 and met Mr. D. Kanan, CEO of the defendant no.1, who handed over a photocopy of the cheque bearing no. 0179835 dated 13/07/2004 drawn on Standard Chartered Bank for sum of ₹ 22,00,000/- in favour of one Sunil Narang and a copy of pay-in-slip dated 13/07/2004 showing deposit of cheque with the ICICI bank. It was immediately pointed out by the plaintiff to the defendant no.1 that the cheque had been tampered with and bore the name of Sunil Narang, whereas ₹ 22,00,000/- was to be paid to the plaintiff. It is stated that the plaintiff had no concern whatsoever with the said Sunil Narang and did not even know him. Therefore, the plaintiff vide letter dated 31/07/2004 requested the defendant no.1 to pay the amount of ₹ 22,00,000/- failing which the plaintiff would take legal action.
3. It is further stated in the plaint that the statement of the defendant no.1 that the cheque was issued in the name of the plaintiff stood falsified from the fact that the said cheque had been altered and that there was no visibility of the plaintiff's name except the crosses xxxxx, whereas the name of Sunil Narang was manifest/clear on the cheque which had been issued by the defendant no.4 Standard CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 4 of 35Chartered Bank, and the alteration seemed to have been signed by the authorized signatories of the defendant no.1. The plaintiff, thereafter, approached the police authorities at Connaught Place and submitted a complaint in writing. On the basis of the complaint an FIR bearing no. 435 dated 20/07/2004 was recorded under sections 420/468/471/120B/34 IPC at the police station Connaught Place. However, till the date of filing of the suit, the plaintiff was not aware of the outcome of the investigation, if carried out. It is stated that thereafter, the defendant no.1 vide letter dated 11/08/2004 informed the plaintiff that the cheque bearing no. 0179835 dated 13/07/2004 drawn on the defendant no.4 Standard Chartered Bank for sum of ₹ 22,00,000/- was in fact one in favour of the plaintiff, and that the defendant no.1 had filed criminal complaint dated 02/08/2004 for commission of offences punishable under sections 419/426/467/468/478/120B IPC with the Deputy Commissioner of Police, Crime Branch, Economic Offences Wing, Qutub Institutional Area, New Delhi, and that on the basis of the said complaint, the police was conducting a criminal investigation which was in process.
4. It is further stated in the plaint that the defendant no.1 had wrongly given credit into the plaintiff's account for ₹ 22,00,000/- knowing fully well that the said amount had not been paid to the plaintiff. The plaintiff served legal notice dated 17/08/2004 upon all the defendants except the defendant no.4 stating that the plaintiff had been deprived of his money of ₹ 22,00,000/- and the interest thereon and demanded repayment. The defendant no.1 through its lawyer sent its reply dated 06/09/2004. It is stated in the CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 5 of 35plaint that the stand taken by the defendant no.1 that it had a contract/understanding with the defendant no.4 Standard Chartered bank regarding preparation of cheques through electronically transmitted data would not absolve the defendant no.1 from discharging its liability towards the plaintiff in as much as the plaintiff had not received the money. It is further stated that the cheque in question bearing the name of Sunil Narang also bore the signatures of the authorized representatives of the defendant no.1. It is further stated in the plaint that the defendants were jointly and severally liable to the plaintiff as it had been informed by the defendant no.1 that the cheque in question drawn on the defendant no.4 Standard Chartered bank was deposited with the defendant no.2 ICICI bank and ultimately the money was transferred into the account of Sunil Narang with the defendant no.3 HDFC Bank. It is stated that all the defendants were jointly and severally liable for depriving the plaintiff of his legitimate money. On this basis, the plaintiff has filed the present suit for recovery against the defendants.
5. The defendant no.1 has filed written statement in its defence. The defence taken by the defendant no.1 is as follows. The defendant no.1 has denied its liability to make payments as prayed for in the suit and has stated that the suit ought to be dismissed. It is stated that during the course of trading, several payments were made to the plaintiff by means of cheques prepared in favour of the plaintiff by the defendant. The said cheques were printed and issued by the bank of the defendant no.1, i.e. the defendant no.4 Standard Chartered Bank, based on the data CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 6 of 35sent electronically by the defendant no.1 in encrypted and non-editable format. The cheques so issued bore the facsimile signatures of two authorized signatories of the defendant no.1. Several payments were made to the plaintiff and as per the request of the plaintiff the cheques were deposited into the savings bank account of the plaintiff maintained with the defendant no.2 ICICI Bank, Connaught Place branch. The payment in dispute in the present case was also deposited on the request of the plaintiff through cheque bearing no. 179835 dated 12/07/2004 drawn on the Standard Chartered Bank in the savings account of the plaintiff maintained with the ICICI Bank. It is stated that the plaintiff had lodged a complaint with the defendant no.1 regarding the non-receipt of the payment in his account, to which the defendant no.1 sent a written reply to the plaintiff and advised him to verify the facts with his banker i.e. ICICI Bank. It is stated that however the banker of the plaintiff simply refused to acknowledge the receipt of the cheque in its Connaught Place branch. It is stated that upon enquiry it was learnt that the cheque deposited with the ICICI Bank Ltd was credited into the account of one Sunil Narang through HDFC bank. It is stated that it was further learnt from the bankers of the defendant no.1 that material alterations were done on the cheque and the name of the plaintiff was crossed out and the name of some unknown third person Sunil Narang was incorporated on the instrument. It is stated that the defendant no.1 lodged a criminal complaint with the Economic Offences Wing of the Crime Branch. It is further stated that the defendant no.1 had duly CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 7 of 35discharged its liability by payment of the amount, hence nothing was due and payable by the defendant no.1 to the plaintiff. It is further submitted that whatever material alteration/forgery had been done, was done at the end of the bankers of the plaintiff. It is further stated that the bankers of the plaintiff were liable for payment of the amount to the plaintiff if any, as the defendant no.1 had deposited the cheque with the ICICI Bank and ICICI Bank being an agent of the plaintiff was under an obligation to collect and credit the payment into the account of the plaintiff. On this basis, the defendant no.1 has prayed for dismissal of the suit.
6. The defendant no.4, i.e. Standard Chartered Bank, has filed its written statement and has denied any liability. It is stated by the Standard Chartered Bank in its written statement that with the ever-changing needs in the financial market the Standard Chartered Bank has developed and expanded the facilities which it provides to its customers. One such category of its customers which avails the facility provided by the bank are the share brokers who deal in the trading and sale and purchase of shares on behalf of their clients. The monies which accrue in favour of their clients are to be paid to the clients by the share broker in terms of the instruction received from the client. To facilitate this payment by the share broker to its clients, Standard Chartered Bank provides a unique facility whereby electronic instructions can be transmitted to the Standard Chartered Bank by such share brokers. A software developed for this purpose is installed in the computers of the share broker and the share broker enters CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 8 of 35payment instructions manually or uploads transactions from their ERP systems. Once these transactions are uploaded or the payment instructions are entered, thereafter these payment instructions are to be authenticated by the company officials of the brokers who put their signatures which are in digital or facsimile form by using Racal Crypton Calculators which are supplied by the Standard Chartered Bank. These encrypted signed payment instructions are transmitted to the Standard Chartered Bank over EQUANT, a virtually private network service through service provider. Thereafter, the bank on receiving these payment instructions verifies the digital signatures of the authorized officials of the share broker for purposes of processing the payments. The share broker can either instruct the payment to be made through electronic transfer in which case the money is transferred from the account of the share broker to the account of the customer or the payment could be instructed to be physically printed on cheques or demand drafts which are forwarded to the share broker. Each cheque or demand draft is then deposited into the account of the client of the share broker. This whole arrangement operates under an agreement for Straight Through Services. It is further stated that the defendant no.1 is one such share broker who has entered into the Straight Through Services Agreement with the Standard Chartered Bank as described above. In terms of the agreement, the Standard Chartered Bank in normal course receives electronic instructions from the defendant no.1 and the same are processed by the Standard Chartered Bank after verifying the digital or facsimile CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 9 of 35signatures of the authorized signatories of the defendant no.1. It is further stated that one such instruction was received from the defendant no.1 on 12/07/2004 and pursuant thereto the defendant no.4 processed the payment after duly verifying the digital/facsimile signatures of the authorized signatories of defendant no.1. As per the instructions, the Standard Chartered Bank printed a cheque bearing no.179835 for an amount of ₹ 22 lakh in the name of the plaintiff. This cheque along with other physically printed cheques was forwarded to the defendant no.1 vide postal cheque number details report dated 12/07/2004. The concerned cheque was handed over to the representative of the defendant no.1 on 13/07/2004 against receipt. As per the records maintained by the Standard Chartered Bank, the concerned cheque was presented by the defendant no.3 bank on 14/07/2004 to the Standard Chartered Bank under the High Value Clearing system and the said cheque was paid by the defendant no.4 in the ordinary course of business and without negligence. It is further stated by the Standard Chartered Bank that upon the receipt of the complaint dated 26/08/2004, the Standard Chartered Bank investigated at its own end and found that there was in fact an alternation appearing on the cheque where the name of Mr. Sunil Narang had been substituted in place of the name of the plaintiff. It is further stated that however, the signatures authenticating the alterations were the same as that of the authorized signatories and matched with the specimen held in the records of the Standard Chartered Bank. After the verification of the signatures in the normal course of banking business, the Standard Chartered Bank CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 10 of 35had paid the amount under the cheque without negligence.
7. The defendant no.2, i.e. ICICI Bank, has also filed its written statement and has denied any liability. It is the case of ICICI Bank in its written statement that no cheque was deposited into the plaintiff's account in ICICI Bank as claimed by the defendant no.1. It is also denied that any pay-in slip was issued by the ICICI Bank as alleged by the defendant no.1.
8. The defendant no.3, i.e. HDFC Bank, has also filed its written statement and has denied any liability.
9. Vide order dated 05/08/2008, the following issues were framed in the suit:
"1. Whether the defendants are jointly and/or severally liable to pay the plaintiff the amounts claimed in the suit alongwith an interest, if yes at what rate? OPP
2. Whether there is any cause of action against defendant no.4? OPD
3. Whether the suit is bad in law for mis-joinder or non-joinder of parties? OPD
4. Whether the defendant no.1, 2 and 3 jointly and/or severally performed their part of the obligation towards the plaintiff? OPD
5. Whether the relief if so granted against which defendant and to what extent?
6. Relief."
10. In support of his case, the plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence Ex.PW1/A. The plaintiff has relied upon the following CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 11 of 35documents:
a. Documents Ex.P-1/D2A and Ex.P-1/D2B; b. Copy of pay-in-slips dated 13.07.2004 and 19.09.2004 Ex.PW1/1 (colly);
c. Cheque no.179835 drawn on Standard Chartered Bank Ex.PW1/2;
d. FIR no.435/2004 Ex.PW1/3; e. Office copy of letter dated 31.07.2004 Ex.PW1/4;
f. Office copy of letter dated 25.08.2004 Ex.PW1/5;
g. Reply dated 26.08.2004 Ex.PW1/6; h. Rejoinder notice dated 28.08.2004 Ex.PW1/7; i. Office copy of response/communication dated 06.09.2004 Ex.PW1/8.
11. The defendant no.1 has examined as witness DW-1 Mr. Anoop Gupta, Vice President (Operations) in the defendant no.1 company. DW-1 has tendered his affidavit in evidence Ex. DW-1/A. He has relied upon the following documents:
a. Certified copy of Board Resolution dated
12.06.2003 Ex.DW1/1;
b. Copies of pay-in-slips dated 06.04.2004, 19.07.2004 and 13.07.2004 Ex.DW1/2 (colly);
c. Complaint dated 02.08.2004 Ex.DW1/3.
12. The defendant no.2 has examined as witness D2/W-1 Mr. Varun Anand, the Dy. Manager in the defendant no.2 bank. He has tendered his affidavit in evidence Ex.DW1/A-1. He has relied upon the document being power of attorney Ex.DW2/A. CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 12 of 3513. The defendant no.3 has examined as witness DW3, Mr. Gaurav Arora, the bank manager in the defendant no.3 bank. He has tendered his affidavit in evidence Ex.D3W1/A. The defendant no.3 has relied upon the documents Mark D3-A (colly. 5 pages) to Mark D3-B (2 pages).
14. The defendant no.4 has examined as witness D-4/DW-1, Mr. Rajiv Sharma, who is working in the defendant no.4 bank at the ITO Express building branch. He has tendered his affidavit in evidence Ex. D4/DW-1/A. He has relied upon the following documents:
a. copy of Post Cheque no. Details Report dated 12.07.2004 Ex. D4W-1/1;
b. pay-in-slip dated 13.07.2004 Ex. DW-1/2; c. original notices u/s 91 Cr.P.C. dated 02.08.2004 issued by Investigating Officer Ex. D4W-1/3 and Ex. D4W-1/4;
d. seizure memo Ex. D4W-1/5;
e. STS Cashier Order Batch Ex. D4W-1/6;
f. letter dated 26.08.2004 issued by defendant no. 1 Mark-A;
g. letter dated 16.09.2004 of defendant no. 1 Ex. D4W-1/8.
15. The learned counsel for the plaintiff has submitted that it is clearly admitted by the defendant no.1 that the amount of ₹ 22 lakh was due and payable by the defendant no.1 to the plaintiff. It is further submitted that it is also the admitted position that the amount of ₹ 22 lakh was never transferred from the account of the defendant no.1 to the plaintiff. It is submitted that it is the admitted position that the amount of ₹ 22 lakh was not paid by the defendant CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 13 of 35no.1 to the plaintiff. Accordingly, it is submitted that the plaintiff is entitled to decree of ₹ 22 lakh against the defendant no.1.
16. It is further submitted by the learned counsel for the plaintiff that the plaintiff has absolutely no role to play in respect of the alleged transaction pertaining to the cheque no. 0179835 which the defendant no.1 was claiming to have been made in the name of the plaintiff. It is submitted that it is the admitted position that the defendant no.4 was the banker of the defendant no.1. It is submitted that the dispute, if any, would be between the defendant no.1 and its banker the defendant no.4, with which the plaintiff has got no role to play. It is further submitted that the plaintiff does not even know the so-called 'Sunil Narang' and has no role to play in the amount of ₹ 22 lakh being transferred from the account of the defendant no.1 maintained with the defendant no.4 bank into the account of 'Sunil Narang' maintained with the defendant no.3 bank.
17. It is further submitted by the learned counsel for the plaintiff that it has clearly come out from the evidence of defendant no.4 that the signatures on the cheque no. 0179835 in respect of the alterations appeared to be that of the authorized signatories of the defendant no.1 and as such the defendant no.4 had cleared the cheque in the name of 'Sunil Narang'. It is submitted that the dispute, if any, would be inter se the defendant no.1 and the defendant no.4 and that the plaintiff has no role to play in the same.
CS No. 59120 of 2016VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 14 of 3518. It is submitted by the learned counsel for the plaintiff that the defendant no.1 is mala fide trying to wriggle out of its obligation to pay the amount of ₹ 22 lakh to the plaintiff. It is submitted that in case the defendant no.1 had been defrauded by fraudsters, it was for defendant no.1 to take steps to recover the amount from the fraudsters, however, instead of doing that, the defendant no.1 was falsely trying to make out a case that it had no liability towards the plaintiff. It is submitted that however, in so far as the plaintiff is concerned, the plaintiff had no role to play in whatever fraud had been committed and the defendant no.1 could not escape its liability.
19. It is further submitted that the other defendants-bankers are also liable to the plaintiff as there has been negligence at their end in dealing with the concerned cheque which the defendant no.1 claimed to have made in the name of the plaintiff.
20. On the other hand, the learned counsel for the defendant no.1 has submitted that the defendant no.1 had performed its obligations towards the plaintiff in full and there was no negligence on the part of the defendant no.1. It is submitted that it is the admitted position that the plaintiff used to instruct the defendant no.1 to deposit cheques in favour of the plaintiff into the plaintiff's account maintained with the defendant no.2 bank. It is submitted that as per the instructions of the plaintiff, the defendant no.1 got the cheque prepared for ₹ 22 lakh in favour of the plaintiff through the defendant no.4 bank. It is submitted that the concerned cheque was deposited by the defendant no.1 into the plaintiff's bank account maintained with the CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 15 of 35defendant no.2 bank. The deposit of the cheque was acknowledged by the defendant no.2 bank by giving its stamp on the pay in slip Ex.DW-1/2. It is submitted that the defendant no.1's obligation towards the plaintiff ended with the deposit of the cheque with the defendant no.2 bank. It is submitted that the defendant no.1 acted with due diligence and the factum of the deposit of the cheque with the defendant no.2 is evidenced through the stamped pay- in slip Ex.DW-1/2. It is submitted that accordingly, the defendant no.1 cannot be held liable for any loss or payment to the plaintiff after defendant no.1 had duly deposited the cheque.
21. The learned counsel for the defendant no.1 has further submitted that the plaintiff has stated in paragraphs 8 and 18 of the plaint that the pay in slip Ex.DW-1/2 bore the stamp of the defendant no.2 and therefore it is also admitted by the plaintiff that the cheque was deposited with the defendant no.2. It is submitted that the endorsement on the pay in slip is sufficient proof to show that the cheque in question was deposited with the defendant no.2. The learned counsel for the defendant no.1 has submitted that there was a presumption about the correctness of endorsement and it was for the party aggrieved by such endorsement to bring in evidence to rebut the presumption. It is submitted that the mere denial by the defendant no.2 was not enough and the defendant no.2 had failed to lead any cogent evidence to dispute the pay in slip Ex.DW-1/2.
22. The learned counsel for the defendant no.1 has further relied upon Master Circular on Customer Service bearing CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 16 of 35No. RBI/2008-09/261, and has referred to clause 13 thereof, and has submitted that in terms thereof every bank was required to make facility for acknowledgement of cheques at regular collection centres. It is submitted that as per this circular, customers could tender checks at the counter and obtain acknowledgement on pay-in slips. It is submitted that the defendant no.1 while depositing the cheque received an acknowledgement by the defendant no.2 on the pay-in slip Ex.DW-1/2.
23. The learned counsel for the defendant no.1 has further relied upon sections 16 and 114 of the Indian Evidence Act and has submitted that the defendant no.1 used to deposit the cheques into the plaintiff's account maintained with the defendant no.2 bank. In this regard, it is submitted that the defendant no.1 had on 06/04/2004 deposited one cheque bearing no. 165267 for Rs. 5,62,844.82 with the defendant no.2 and on 19/07/2004 had deposited two cheques for total amount of Rs. 12,12,586.47, against which acknowledgement was given by the defendant no.2 in the form of pay in slips. It is submitted that this was done in the common course of business and that the court would presume that even in the case of the concerned cheque, the defendant no.1 had in the usual course of business deposited the cheque against acknowledgement with the defendant no.2.
24. The learned counsel for the defendant no.1 has further submitted that as per the understanding between the defendant no.1 and the defendant no.4, the cheque was to be prepared by the defendant no.4. It is submitted that instructions were sent by the defendant no.1 to the CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 17 of 35defendant no.4 electronically to prepare the cheque in the name of the plaintiff. It is submitted that it has been proved on the basis of the evidence on record that the defendant no.4 had prepared the cheque in the name of the plaintiff. It is further submitted that the alteration on the concerned cheque was never authorized by the defendant no.1. It is submitted that the defendant no.1 did not have the facility to type on cheques and therefore could not have written the name of 'Sunil Narang' on the cheque. It is submitted that the defendant no.4 had not led any evidence to show that the defendant no.1 had authorized the alteration on the cheque.
25. The learned counsel for the defendant no.1 has further submitted that the defendant no.1 had no facility to print cheques and relied upon the defendant no.4 to print cheques with facsimile signatures of the officials of the defendant no.1 which were sent to the defendant no.4. It is submitted that the defendant no.4 has neither pleaded not led any evidence to show that the defendant no.1 had authorized or instructed the defendant no.4 to print any cheque in the name of 'Sunil Narang'.
26. The learned counsel for the defendant no.1 has further submitted that the defendant no.4 had prepared the cheque in the name of the plaintiff and had given the same to the defendant no.1. It is submitted that the defendant no.1 had deposited the said cheque with the defendant no.2 as evidenced by the pay-in slip. It is submitted that the concerned cheque was in the custody of the defendant no.2 and any material alteration on the cheque could not be attributed to the defendant no.1 and the defendant no.1 CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 18 of 35cannot be made liable. In this regard, the learned counsel for the defendant no.1 had relied upon the judgement of M.S. Anirudhan Vs. Thomco's Bank Ltd. AIR 1963 SC 746.
27. The learned counsel for the defendant no.1 has further submitted that the defendant no.2 being the bank/agent of the plaintiff being the collecting bank was liable for any loss caused to the plaintiff. In this regard, the learned counsel for the defendant no.1 had relied upon the judgement in Indian Overseas Bank Vs. Industrial Chain Concern (1990) 1 SCC 484.
28. The learned counsel for the defendant no.1 has further submitted that the plaintiff did not include 'Sunil Narang' in the suit. It is submitted that had 'Sunil Narang' been impleaded then the aspect of fraud would have clearly come out. It is submitted that as such the plaintiff had frittered away the chance for a complete adjudication of the matter regarding fixing liability of the loss caused to the plaintiff.
29. It is submitted by the learned counsel for the defendant no.1 that the defendant no.1 had performed all its obligations towards the plaintiff and could not be held liable for any loss caused to the plaintiff after it had deposited the cheque with the defendant no.2. On this basis, the learned counsel for the defendant no.1 has submitted that the suit ought to be dismissed qua the defendant no.1.
30. The learned counsel for the defendant no.4 Standard Chartered Bank has submitted that as per the records maintained by the defendant no.4 bank, the concerned CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 19 of 35cheque was presented by the defendant no.3 i.e. HDFC bank to the defendant no.4 under the high value Clearing system and the cheque was paid by the defendant no.4 in the ordinary course of business and without negligence. It is further submitted by the learned counsel for the defendant no.4 that upon receipt of the complaint dated 26/08/2004, the defendant no.4 investigated on its own and found that there was in fact an alternation appearing on the cheque where the name of 'Sunil Narang' had been substituted in place of the name of the plaintiff. It is further submitted that however, the signatures authenticating the alterations were the same as that of the authorized signatories and matched with the specimen held in the records of the defendant no.4, and as such after the verification of the signatures in the normal course of banking business, the defendant no.4 had paid the amount under the cheque without negligence. On this basis, it is submitted that the defendant no.4 bank had discharged its duties with due diligence and there was no liability on the part of the defendant no.4. On this basis, it is submitted that the suit ought to be dismissed qua the defendant no.4.
31. The learned counsel for the defendant no.2 i.e. ICICI Bank has submitted that the concerned cheque was never deposited with the defendant no.2 bank as alleged by the defendant no.1 and as such the defendant no.2 has no role to play in the entire transaction. It is submitted that the defendant no.2 has been unnecessarily dragged into the controversy and that there is no liability on the part of the defendant no.2. It is submitted that accordingly the suit ought to be dismissed qua the defendant no.2.
CS No. 59120 of 2016VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 20 of 3532. The learned counsel for the defendant no.3 i.e. HDFC Bank has submitted that an account in the name of Sunil Narang had been opened with it and that the defendant no.3 had carried out the due diligence in the opening of the bank account. It is submitted that the concerned cheque drawn on the defendant no.4 bank with the name of Sunil Narang was deposited with it and in the ordinary course, it was sent to the defendant no.4 bank for clearing. It is submitted that the defendant no.4 duly cleared the cheque and the money was transferred into the account of Sunil Narang and was subsequently withdrawn from the account. It is submitted that the defendant no.3 had sent the cheque to the defendant no.4 in due course and there was no negligence at its end. It is submitted that there is no liability on the part of the defendant no.3 bank and that the suit ought to be dismissed qua the defendant no.3.
33. I have considered the submissions of the learned counsel for the parties and I have perused the record, including the pleadings and evidence.
34. My issue-wise findings are as follows.
Issue 1. Whether the defendants are jointly and/or severally liable to pay the plaintiff the amounts claimed in the suit alongwith an interest, if yes at what rate? OPP Issue 2. Whether there is any cause of action against defendant no.4? OPD Issue 4. Whether the defendant no.1, 2 and 3 jointly and/or severally performed their part of the obligation towards the plaintiff? OPD Issue 5. Whether the relief if so granted against CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 21 of 35which defendant and to what extent?
35. The aforesaid issues are taken up together for discussion.
36. I shall first deal with the question of liability of the defendant no.1. It is admitted by the defendant no.1 that an amount of ₹ 22 lakhs was due and payable by the defendant no.1 to the plaintiff. However, what the defendant no.1 has claimed is that the defendant no.1 had got prepared cheque bearing no. 0179835 dated 12/07/2004 of ₹ 22 lakh in the name of the plaintiff from its banker i.e. the defendant no.4 and had deposited the same with the plaintiff's banker i.e. defendant no.2 on 13/07/2004 against pay-in slip. It is the case of the defendant no.1 that thereafter some forgery/alteration had been made on the cheque which was done at the end of the plaintiff's banker i.e. defendant no.2 bank due to which the money was transferred from the account of the defendant no.1 into the account of the so-called Sunil Narang. It is the case of the defendant no.1 that the liability, if any, is only that of defendant no.2 and that the liability of the defendant no.1 was extinguished when the cheque was deposited by the defendant no.1 with the defendant no.2.
37. After having given considerable thought to the submissions made by the learned counsel for the parties and having perused the evidence, I am unable to accept the submissions of the defendant no.1. Insofar as the primary liability of the defendant no.1 to pay amount of ₹ 22 lakhs to the plaintiff is concerned, there is no dispute about that. It is the admitted position that this amount was to be paid by the defendant no.1 to the plaintiff. The defendant no.1's CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 22 of 35case is that this liability stood extinguished when the cheque of ₹ 22 lakh was deposited by the defendant no.1 with the plaintiff's banker i.e. the defendant no.2. It is this defence of the defendant no.1 which is to be tested and which is the crux of the present suit. The onus to prove this defence was upon the defendant no.1. I would hold upon a perusal of the evidence that the defendant no.1 has failed to discharge the onus to prove its defence.
38. The stand of the defendant no.1 that it had deposited the cheque with the defendant no.2 appears to be doubtful. The sole basis of the claim of the defendant no.1 is the pay-in slip dated 13/07/2004 Ex.DW-1/2 which purports to bear the stamp of the defendant no.2. The defendant no.2 has clearly denied that it had received any cheque from the defendant no.1 in the name of the plaintiff as alleged by the defendant no.1. The pay-in slip dated 13/07/2004 Ex.DW-1/2 has been denied by the defendant no.2. The witness of the defendant no.2 i.e. D2/W-1 Sh. Varun Anand, Dy. Manager, ICICI Bank has deposed that as per the record of defendant no.2 bank, the cheque was never deposited with the ICICI bank. On being confronted during cross-examination with the pay-in slip dated 13/07/2004 Ex.DW-1/2, he has stated that the stamp on the pay-in slip may or may not be that of ICICI bank. The witness on behalf of the defendant no.1 i.e. DW1- Sh. Anoop Gupta, Vice President (Operations) in the defendant no.1 company, has admitted in his cross examination that the amount of ₹ 22 lakh had not been credited into the plaintiff's account from the account of the defendant no.1. It has clearly come out in his cross examination that he did CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 23 of 35not have direct knowledge that the concerned cheque had been deposited with the defendant no.2. As per his testimony, the cheque was collected from the defendant no.4 bank by an office boy namely Mr. Prakash Chander and that subsequently, the office boy deposited the cheque with the defendant no.2's Connaught Place branch at the counter. He has admitted that he did not accompany the said office boy for depositing the cheque in question. He has also stated that he cannot say whether the office boy had deposited the cheque in question over the counter or dropped the same in the drop box. He only states that the office boy had confirmed to him that it was deposited over the counter. Thus, his evidence regarding the deposit of the concerned cheque over the counter with the defendant no.2 is based on hearsay. The office boy namely Mr. Prakash Chander was never examined by the defendant no.1. Thus, the defendant no.1 has not been able to clearly establish that the concerned cheque was actually deposited by the defendant no.1 with the defendant no.2.
39. It has clearly come out in the evidence that the concerned cheque had been actually deposited with the defendant no.3 i.e. HDFC Bank with an alteration whereby the original name had been crossed out. The original name on the cheque is not even visible having been crossed out completely with xxxxxx marks. There is an interpolation whereby the name 'Sunil Narang' has been typed. Over this typed portion, there are the facsimile signatures which purport to be that of the authorized signatories of the defendant no.1. The defendant no.4 has already stated in its written statement that as per its record, the signatures CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 24 of 35matched with that of the authorized signatories of the defendant no.1 and that is how the cheque was cleared by the defendant no.4. It has clearly come out from the evidence that this concerned cheque after having been deposited with the defendant no.3 was sent by the defendant no.3 through the high value clearing system to the defendant no.4. This is as per the own case of the defendant no.4. As per the evidence of the defendant no.4, since the signatures appeared to be that of the authorized signatories of the defendant no.1, the cheque was cleared and the money was transferred from the account of the defendant no.1 maintained with the defendant no.4 into the account of 'Sunil Narang' maintained with the defendant no.3. Crucially, the defendant no.1 has not even called the authorized signatories whose signatures appear to have endorsed the interpolation on the concerned cheque i.e. Mr. S.A. Narayan and Mr. Vishwanath Iyer to depose. Thus, the authorized signatories have not even come forward in the present suit to depose that the signatures purporting to be their signatures on the interpolation on the concerned cheque, whereby the original name has been crossed out and the name of Sunil Narang has been added, were not theirs. These circumstances also make it doubtful that the cheque could have been deposited with the defendant no.2 bank.
40. It is the case of the defendant no.1 that it had deposited the cheque with the defendant no.2 and thereafter some fraud had taken place whereby material alterations were made in the cheque and forgery and fraud was committed and that the name of the plaintiff was crossed out and the name of CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 25 of 35Sunil Narang was added and the signatures of the authorized signatories were forged and that the cheque was deposited into the defendant no.3 bank wherein the account of 'Sunil Narang' was maintained, and that is how the amount of ₹ 22 lakh was transferred from the account of the defendant no.1 with the defendant no.4 bank to the account of Sunil Narang maintained with the defendant no.3. Even assuming that this case set up by the defendant no.1 to be true, there is nothing which extinguishes the liability of the defendant no.1 qua the plaintiff. At best, in such an event it could be said that a fraud had been committed upon the defendant no.1 and a loss had been suffered by the defendant no.1 on this account and the defendant no.1 was entitled to recover the loss from the persons or entities which were responsible for the fraud and/or those responsible for negligence. The defendant no.1 has failed to show that the plaintiff had any role to play in the forgery of the cheque or in the fraud through which the money was taken out from the account of the defendant no.1 and transferred into the account of Sunil Narang and thereafter withdrawn.
41. The defendant no.1 has been unable to show on what basis in law it can claim that its liability towards the plaintiff stood extinguished. It is not even the case of the defendant no.1 in its pleadings that there was any fraud or negligence on the part of the plaintiff. Even otherwise, there is no evidence to show any fraud or negligence on the part of the plaintiff. The stand of the defendant no.1 that its liability towards the plaintiff for sum of Rs. 22,00,000/- stood extinguished cannot be sustained. From the evidence on CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 26 of 35record, it does appear that some fraud was committed in the course of which an interpolation was done on the subject cheque and amount of Rs. 22,00,000/- was ultimately transferred from the account of the defendant no.1 maintained with the defendant no.4 bank into the account of the so-called Sunil Narang maintained with the defendant no.3 bank. The loss, if any, was ultimately caused to the defendant no.1 in as much as the money was transferred from its account. However, rather than pursuing the course of retrieving the money from the actual culprits who committed fraud and forgery or from the entities who were guilty of negligence, the defendant no.1 has adopted the course of conveniently stating that its liability to the plaintiff stood extinguished and that the loss was actually caused to the plaintiff and it was for the plaintiff to go after those responsible for the forgery in the cheque or the negligence in relation to the cheque. In this manner, the defendant no.1 has sought to shrug off its liability towards the plaintiff. The plaintiff has been unable to show on what basis in law, it is claiming that its liability stood extinguished. It is the admitted position that the amount of Rs. 22,00,000/- was never transferred from the account of the defendant no.1 into the account of the plaintiff. It would have been altogether a different matter if the money had been transferred from the account of the defendant no.1 to the plaintiff's account, and thereafter the money had been siphoned off from the plaintiff's account. In such an event, the defendant no.1 could have raised the defence that as it had already paid the money into the plaintiff's account, hence, its liability stood extinguished CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 27 of 35and it was for the plaintiff to seek his remedies against the culprits who fraudulently siphoned of the amounts and against the banks for negligence. However, such is not the case in the present suit. In the present suit, the money was never transferred from the defendant no.1's account into the plaintiff's account. The money was directly transferred from the defendant no.1's account into the account of the so-called Sunil Narang. The plaintiff has no role to play in this. It may have been that the defendant no.1 was preparing a cheque in the name of the plaintiff and due to fraud and forgery the cheque was interpolated and the amount transferred into the account of a third person, however, this cannot put the plaintiff to a disadvantage, since he is not involved in any fraud or negligence. The remedy of the defendant no.1 would have been to seek recovery of the amount from the culprits committing the fraud or the institutions guilty of negligence. However, instead of following this recourse, the defendant no.1 has conveniently sought to pass the buck to the plaintiff.
42. The learned counsel for the defendant has relied upon the case of M.S. Anirudhan Vs. Thomco's Bank Ltd. AIR 1963 SC 746 to argue that any material alteration in the cheque while in the custody of the defendant no.2 cannot be attributed to the defendant no.1 and the defendant no.1 cannot be bound with the concerned cheque. Firstly, I would hold that the defendant no.1 has failed to convincingly prove that the cheque had been deposited with the defendant no.2. Even assuming that the cheque was deposited with the defendant no.2 and there was some alteration in the cheque thereafter, the same would not in CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 28 of 35any case affect the rights of the plaintiff or extinguish the liability of the defendant no.1 qua the plaintiff. Ultimately, the loss having been suffered by defendant no.1 since the money was transferred from the account of defendant no.1 to the account of the so-called Sunil Narang, it was for the defendant no.1 to pursue its remedies against those guilty of fraud and forgery and those guilty of negligence. In so far as the judgment in M.S. Anirudhan (supra) is concerned, the facts in that case were completely different. In M.S. Anirudhan (supra), the Bank had filed a suit against the principal debtor and the surety. The suit was based against the principal debtor based on a promissory note executed by him in favour of the bank and against the surety on the basis of a letter of guarantee. The surety in his defence stated that the letter of guarantee was for Rs. 5,000 only and that it had been altered without his knowledge and consent into a sum of Rs. 20,000. It was held in that case that the document was not altered by the Bank nor with the bank's consent or connivance while the document was in its custody and that the document was apparently altered either by the principal debtor or the surety or by both. It was held that if it was altered by the surety or by both the surety and the principal debtor together, then the document still remained the document of the surety and the suit of the bank based upon the said document was competent against the surety, and even if it was altered by the principal debtor, in the facts it was not a material alteration as the document continued to represent what had been intended by the surety. The learned counsel for the defendant no.1 has primarily relied upon paragraph CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 29 of 3526 of the judgment in M.S. Anirudhan (supra) wherein it is observed that a material alteration made a document void. However, I fail to see how this observation helps the case of the defendant no.1 in the present suit. Even if the concerned cheque is taken to be void for material alteration, then at best it would give a right to the defendant no.1 to seek recovery/refund of the amount of Rs. 22 lakh from the person into whose account the money was actually credited i.e. the account of the so-called Sunil Narang or from the parties guilty of the fraud and forgery or from the parties guilty of negligence. The concerned cheque becoming void due to material alteration does not extinguish the liability of the defendant no.1 qua the plaintiff. The liability of the defendant no.1 qua the plaintiff was on account of the transaction in respect of shares and securities and the defendant no.1 has already admitted its liability on this account.
43. The learned counsel for the defendant no.1 has also relied upon the case of Indian Overseas Bank Vs. Industrial Chain Concern (1990) 1 SCC 484 to argue that it was only the collecting bank i.e. the defendant no.2 which was liable for the loss. Again, firstly, I would hold that the defendant no.1 has failed to prove that the cheque was actually deposited with the defendant no.2 bank. Further, any loss which has been caused by way of the fraud and forgery and/or negligence has, ultimately, been caused to the defendant no.1 and the defendant no.1 ought to have pursued its remedies for recovery of the amounts transferred from its account into the account of the so- called Sunil Narang with the defendant no.3 bank. The CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 30 of 35liability of defendant no.1 qua the plaintiff cannot said to have been extinguished merely because of the loss caused to the defendant no.1 by the fraud and negligence. In Indian Overseas Bank (supra), the plaintiff had filed a suit on the basis that the plaintiff had suffered loss on account of the alleged negligence by the defendant bank by negligently allowing one Sethuraman, manager of the plaintiff to open a fictitious account in the name of the plaintiff as its proprietor and helping him to pay in stolen drafts and cheques drawn in favour of the plaintiff and collecting the same and paying the proceeds to the said Sethuraman and closing the account thereafter. The Hon'ble Court ultimately found in the facts of the case that the bank was not negligent. The learned counsel for the defendant no.1 has primarily relied upon paragraph 23 of the judgment in Indian Overseas Bank (supra), in which it is observed that as an agent of the customer for collection the collecting bank is bound to exercise diligence in presentation of the cheques for payment within reasonable time and if the banker fails to present a cheque within a reasonable time after it reaches him then it is liable to the customer for loss arising from the delay. It is further observed that if the collecting bank collects for the customer he will be liable in conversion if the customer has no title, however, if he collects in good faith and without negligence he may plead statutory protection under section 131 of the Negotiable Instruments Act. Again, these observations are of no assistance to the defendant no.1. As already observed, firstly, the defendant no.1 has been unable to show that the concerned cheque CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 31 of 35was actually deposited with the defendant no.2. Even assuming that the cheque was deposited with the defendant no.2, the defendant no.1 has been unable to show how its liability qua the plaintiff stood extinguished. In Indian Overseas Bank (supra), the plaintiff had suffered the loss as a fictitious account had been created in its name and the cheques were in the plaintiff's name and hence, the plaintiff therein had sued the bank for negligence and conversion. In the present case, the concerned cheque had been manipulated in such a manner that ultimately the cheque was not in the name of the plaintiff. No money had been transferred into the account of the plaintiff and no money was transferred out of the account of the plaintiff. The loss was, in the real sense, actually suffered by the defendant no.1 from whose account the money was transferred into the account of the so-called Sunil Narang. It was for the defendant no.1 to seek its remedies to recover the amounts which were fraudulently transferred. However, the defendant no.1 cannot claim that its liability qua the plaintiff stood extinguished.
44. In the result, I would hold that the defendant no.1 is liable to the plaintiff for payment of amount of Rs. 22,00,000/-. I would also grant interest @ 12% p.a. from 17/08/2004, i.e. the date of the legal notice, until actual realization.
45. Now, coming to the question of liability of the defendants nos. 2 to 4.
46. The defendant no.4 was the banker of the defendant no.1 and did not have any banking relationship with the plaintiff. Ultimately, the loss was caused to the defendant CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 32 of 35no.1 as the money was transferred from its account to the account of Sunil Narang. In so far as the plaintiff is concerned, he did not suffer any loss in the sense that no amounts were siphoned off from his bank account. The plaintiff's real grievance is that the defendant no.1 did not discharge its liability to pay. It may be that the defendant no.4 owed a duty of care to and was liable to the defendant no.1 for the duty of care, but that would be a matter between the defendant no.1 and the defendant no.4 inter- se. In so far as the plaintiff is concerned, the plaintiff has been unable to show on what basis the defendant no.4 would be liable to the plaintiff.
47. In so far as the defendant no.2 bank is concerned, I have already held that it has not been proved that the concerned cheque had actually been deposited with the defendant no.2. It has clearly come out in evidence that the cheque was actually deposited with the defendant no.3 bank and upon presentation of the cheque by the defendant no.3 bank to the defendant no.4 bank, the cheque was cleared. The plaintiff has been unable to show on what basis the defendant no.2 would be liable to the plaintiff.
48. In so far as the defendant no.3 bank is concerned, the concerned cheque which was deposited with it was in the name of the so-called Sunil Narang. I do not find that there was any banking relationship between the plaintiff and the defendant no.3. At best, it was the defendant no.1 which could have claimed to recover its losses on account of any alleged negligence of the defendant no.3 bank. However, that is a different matter which is not subject of this suit. The present suit is only concerned with the liability of the CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 33 of 35defendants towards the plaintiff. The plaintiff has been unable to show on what basis the defendant no.3 would be liable to the plaintiff.
49. In the result, I would hold that the suit is liable to be dismissed qua the defendants nos. 2, 3 and 4.
50. The issues nos. 1, 2, 4 and 5 are decided accordingly.
Issue 3. Whether the suit is bad in law for misjoinder or non-joinder of parties? OPD
51. The suit does not suffer from misjoinder of parties. The defendant no.1 was a necessary party to the suit. The defendants nos. 2 to 4 were proper parties for proper adjudication of the dispute. The suit does not also suffer from non-joinder of necessary parties. The contention of the plaintiff that the so-called Sunil Narang was a necessary party is without any merit. Ultimately, the loss suffered on account of the fraud and/or negligence which had taken place was by the defendant no.1. It was for the defendant no.1 to seek appropriate remedies against the persons or entities responsible for the fraud and/or negligence. However, in so far as the plaintiff is concerned, the liability of the defendant no.1 qua the plaintiff did not get extinguished and the plaintiff was well within his rights to seek recovery from the defendant no.1. The plaintiff was not required to implead the so-called Sunil Narang as a party since no money from the plaintiff's account was transferred into the account of Sunil Narang, and in the ultimate analysis there was no loss suffered by the plaintiff as such. The loss suffered was by the defendant no.1 and it was for the defendant no.1 to seek its remedies against the culprits of the fraud and/or CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
Page No. 34 of 35negligence. It was sufficient for the plaintiff to file suit for recovery against the defendant no.1 which he had done. In the results, Issue No.3 is answered in favour of the plaintiff and against the defendants.
52. In the result, decree is passed in favour of the plaintiff and against the defendant no.1 only for sum of Rs. 22,00,000/- along with interest @ 12% p.a. from 17/08/2004 until actual realisation. The suit is dismissed qua the defendants nos. 2 to 4.
53. Costs in the suit are decreed in favour of the plaintiff and against the defendant no.1. The pleader's fees is computed as Rs. 30,000/-.
54. Let the decree-sheet be drawn up accordingly.
File be consigned to record room.
Judgment pronounced in open court.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/28.02.2023 CS No. 59120 of 2016 VARINDER TALWAR Vs. KOTAK SECURITIES LTD.
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