Karnataka High Court
State Bank Of Mysore vs Tamilnadu Mercantile Bank Ltd on 10 July, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
REGULAR FIRST APPEAL No.1120/2010
Between :
State Bank of Mysore
An Associate of State Bank of India
Constituted under the State Bank of
India (Subsidiary Banks) Act 1959
Having it's Head Office at K.G. Road
Bangalore-09
Inter Alia having a branch known as
Bangalore branch at Avenue Road
Bangalore- 560 009
Rep. by it's Chief Manager
Accounts Sri Sequeira. ...Appellant
(By Sri N Suryaprakash, Adv.)
And :
1. Tamilnadu Mercantitle Bank Ltd.,
Mahalakshmi Chambers
No.29, M.G. Road
Contonement
Bangalore-560 001.
2. M/s. A.P. Electronics
No.321/1, C.M.H.Road
Indira Nagar
Bangalore-560 038. ... Respondents
(By Sri P.H. Ramalingam, Adv. for R1
R2- Served)
2
This appeal is filed under Section 96 of CPC, against
the Judgment and decree dated 20.03.2010 passed in
O.S.1950/2001 on the file of the X-Addl. City Civil Judge,
Bangalore, dismissing the suit for recovery of money.
This appeal coming on for hearing, this day, the Court
delivered the following :
JUDGMENT
The appellant herein is the plaintiff in O.S.No.1950/2001. The Court below by its judgment dated 20.03.2010 has dismissed the suit filed by the appellant. The appellant is therefore before this Court.
2. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3. The plaintiff is the payee-Bank and the first defendant is a Collecting bank in respect of the second defendant. In that regard, a demand draft for a sum of Rs.31,500/- dated 31.03.1998 is said to have been presented by the first defendant on behalf of the second defendant as a collecting banker. The plaintiff herein on accepting the same has cleared the demand draft. 3 The Collecting bank has settled the same in favour of the second defendant. However, the plaintiff has subsequently noticed that the demand draft had been forged and as such, the plaintiff had been put to loss in paying the said amount. Hence, a notice was issued to the defendants and the suit in question was filed.
4. Though the suit summons had been served on the defendants, the second defendant did not enter appearance and as such was placed exparte. Despite the first defendant being represented by a counsel, they did not choose to file the written statement. Accordingly, the Court below after taking note of the evidence tendered by the plaintiff has however dismissed the suit.
5. The learned counsel for the plaintiff while assailing the judgment passed by the Court below would contend that the Court below was not justified in arriving at the conclusion that the plaintiff has not proved its case before the Court below with reference to insufficient pleading and evidence. In that regard, it is 4 contended that the averments made in the plaint have not been disputed by the defendants nor the evidence tendered had been challenged by way of cross- examination. Since the material facts pleaded in the plaint had been proved by way of evidentiary affidavit, the same should have been accepted by the Court below, more particularly keeping in view the provision contained under Order 8 Rule 5 of CPC. It is therefore his case that the Court below was not justified in coming to the conclusion that there was no specific pleading in the plaint.
6. Learned counsel for the first defendant who is the first respondent herein would however oppose the contention of the learned counsel for the plaintiff. It is contended that even in the absence of the written statement, the Court below had a duty enjoined upon it to satisfy itself with regard to the averments and the claim made in the suit and in that regard, the Court below was perfectly justified in arriving at its conclusion. It is also contended that in any event, the 5 first defendant is a Collecting Banker who had an obligation towards his client to clear the demand draft, more particularly when the demand draft was the one issued by a branch of the plaintiff-bank itself, they had no reason to doubt the same and sent the same for clearance. It is therefore contended that they were not negligent and they cannot be held liable in any case. Even before this Court, the second respondent has remained unrepresented, despite service.
7. Having noticed the rival contentions and having perused the plaint filed before the Court below, it would indicate that the plaintiff-Bank in fact has referred to the transaction in detail and has further indicated the reasons and the manner in which the demand draft had been cleared mainly due to the fact that the same had been presented through the first defendant which is Collecting Banker, who was required to exercise due care and caution before accepting and forwarding for clearance. As such, it was cleared. It is thereafter when they had noticed the defect in the 6 demand draft, they had taken the immediate steps. Keeping in view the said contentions which had been put forth in the plaint and the documents which have been marked in support of the affidavit which had been filed through one Sri Srinivas, who was working as a Manager of the plaintiff-Bank, it could be seen that the plaintiff in fact had discharged the primary burden which rested on them more particularly in the absence of challenge to the plaint averments and the evidence affidavit.
8. In a matter of the present nature, the suit in any event could have been dismissed only if there was an appropriate defence put forth by the defendants and the evidence tendered had been challenged by way of cross-examination and relevant materials were also produced. In a normal circumstance, in the absence of such appreciation, it would have been open for this Court in a first appeal to reappreciate the material and arrive at a conclusion. However, having noticed the contention put forth on behalf of the first defendant and 7 having perused the document which is produced as Ex.P3 viz., the reply notice dated 05.10.1999, which had been issued by the first defendant indicating the reasons as to why they cannot be held liable, I am of the opinion that the matter requires appropriate reconsideration by the Court below after permitting the first defendant to put forth their contention by way of written statement so that the plaintiff also would have the opportunity of placing all materials before the trial Court in response to the contention and the Court below after framing appropriate issues and casting burden on the parties could dispose of the matter in accordance with law.
9. Therefore, the judgment dated 20.03.2010 impugned in this appeal passed in O.S.No.1950/2001 is set aside. The matter is remitted to the X Addl. City Civil Judge, Bangalore to restore O.S.No.1950/2001 on file and provide opportunity to the first defendant to put forth its contention. The Court below shall also issue fresh suit summons to the second defendant. Since the 8 plaintiff and the first defendant are before this Court, they shall appear before the trial Court without further notice on 27.08.2012 as the first date of appearance.
Since the matter has been remanded, the appellant is entitled for refund of the Court fee paid on this appeal. The appeal is allowed in part accordingly. L.C.Rs. to be returned forthwith.
Sd/-
JUDGE akc/bms