Delhi District Court
M/S EPack Polymers Pvt. Ltd vs ) The Standard Chartered Bank on 27 July, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 30/2013
Unique I. D. No. 02401C0226342012
M/s EPack Polymers Pvt. Ltd.,
2584, Rohatagi Mansion, 2nd Floor,
Hamilton Road, Kashmere Gate,
Delhi110006.
Through authorized Representative
Sh. Sanjay Singhania.
......Plaintiff
Versus
1) The Standard Chartered Bank,
Regional Office at :
Sansad Marg, New Delhi
Branch office at :
Vasant Vihar,
New Delhi110057.
Through Chairman/Authorized Person/Manager
CS30/2013
M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 1 of 29
2) Reserve Bank of India,
Through The Governor
Sansad Marg, New Delhi110001.
3) M/s Mahavir Impex,
through Proprietor
Sh. Vijay Jain @ R.K. Jain,
C208, Anurag Villa, RNP Park,
Bhayandar (E) Thane,
Maharashra401105.
.......Defendants
SUIT FOR RECOVERY OF RS. 12,26,753/ AND MANDATORY
INJUNCTION
Date of institution of suit : 24.12.2003
Arguments concluded on : 07.07.2015
Date of pronouncement of judgment : 27.07.2015
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs. 12,26,753/ with interest and seeking mandatory injunction against the defendants. Factual matrix of case of plaintiff in brief is as follows. Sh. Sanjay Singhania is the authorized person/Director of plaintiff CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 2 of 29 company and authorized by resolution of the Board of Directors in the meeting held on 19.12.2002 to file present suit. Plaintiff was having C.C. Account No. 01600070036 with State Bank of India, Sector18, Noida. Plaintiff came to know from their account with said State Bank of India that Rs. 9,47,300/ was debited against cheque no. 085949 dated 09.04.2001, drawn on State Bank of India, Dharam Palace Complex, Sector18, Noida, on 10.04.2001 in favour of one M/s Mahavir Impex (proprietor Sh. Vijay Jain), Thane, Maharashtra, the defendant no3. Said cheque was not issued by plaintiff and came in hands of M/s Mahavir Impex by manipulation and in connivance with some persons and had been cleared by defendant no1 bank branch in respect of account no. 22505439669 in the name of M/s Mahavir Impex, C208, Anurag Villa, RNP Park, Bhayandar (E), Thane, Maharashtra. Plaintiff lodged police complaint for which FIR No. 34/2001 was registered at P.S. Surajpur, Gautam Budh Nagar under Sections 420/468/469/471 IPC against M/s Mahavir Impex. Defendant no3 is a fictitious firm and had opened account with defendant no1 for the purpose of committing fraud. During investigation by police and by plaintiff, it was revealed that defendant no1 acted illegally and against the guidelines prescribed by CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 3 of 29 the Reserve Bank of India, defendant no2 for opening of account. Aforesaid account of defendant no3 was opened illegally by defendant no1 against rules. Details of defendant no3 were fictitious. Photocopy of ration card, name of firm, signature of proprietor and photographs were also fictitious. Proper introduction of defendant no3 was not taken by defendant no1 nor verification of record was done before opening the account. Before opening the account, defendant no1 had also not taken any evidence of witness. Defendant no1 had also not taken any care for such heavy withdrawals in such a case which was a new account. Plaintiff claimed that on account of violating the rules and Reserve Bank of India guidelines and for involvement of staff of defendant no1, plaintiff suffered loss of Rs. 9,47,300/ for which defendant is liable to compensate to plaintiff. Had defendant no1 Bank taken care in opening account, operating of account and complied with guidelines and rules, plaintiff would not have suffered the loss and the culprit could have been identified, if the guidelines were followed by defendant no1 Bank. Plaintiff has claimed Rs. 9,47,300/ as principal and Rs. 2,79,453/ as interest on said sum @ 12% per annum from 10.04.2001 till date of institution of the suit from defendants jointly and severally. It is also CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 4 of 29 submitted that plaintiff had served legal notice dated 15.10.2001/15.12.2001 to defendant no1, whereas defendant no1 gave false and frivolous reply dated 18.02.2002 embodying of not being negligent and having complied the guidelines of Reserve Bank of India. Plaintiff had also prayed for passing of decree for mandatory injunction, directing defendant no2 to cancel and revoke license and permission granted to defendant no1 for running the banking business.
2. In the filed written statement, defendant no1 took preliminary objections viz., (i) plaintiff had no cause of action against defendant no1; (ii) the cheque deposited by defendant no3 in its account was collected by defendant no1 in ordinary course of business in good faith and without negligence and if there is any negligence, it is of the banker of the plaintiff and defendant no1 cannot be made to suffer on account of lapse and negligence of the paying bank; (iii) plaintiff had no privity of contract with defendant no1; (iv) suit was bad for misjoinder and nonjoinder of necessary and proper parties; (v) defendant no1 is neither a necessary nor a proper party; (vi) the suit was lacking territorial jurisdiction; and (vii) suit had not been instituted by a duly authorized CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 5 of 29 person. Also had been averred that defendant no1 Bank had opened the account of defendant no3 on the basis of photocopy of the ration card of proprietor of defendant no3 Sh. Vijay Jain, somewhere in February, 2001 after completion of all formalities as per Reserve Bank of India guidelines and a cheque was also attached with account opening form for being deposited in the account of defendant no3. Also was averred that cheque in dispute, amounting to Rs. 9,47,300/ was deposited in the account of defendant no3, somewhere in April 2001 i.e. after the gap of about two months of opening the account by defendant no3, which was not likely to raise any suspicion in the mind of officials of defendant no1 Bank. Opening of the account and collecting of amounts under cheque from the payee bank in the account of the customer cannot be said to be a similar transaction or transaction in same series unless they are in close proximity. After the aforesaid cheque was cleared by the payee bank i.e. banker of the plaintiff, same was duly credited in the account of defendant no3 in April 2001, therefore, in the facts and circumstances of the case also the defendant no1 was not liable. Since, cheque deposited by defendant no3 in its account was collected by defendant no1 Bank in ordinary course of business in good faith and without any negligence for CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 6 of 29 which defendant no1 Bank cannot be made to suffer since it was outside the purview of the collecting bank to stop the release of the amount so collected in the account. It was also stated that it is not the case of the plaintiff that signature of the cheque was forged or cheque was not issued in favour of defendant no3. In entire plaint, plaintiff is silent about how the cheque reached in custody of defendant no3 from plaintiff without knowledge of plaintiff. To strengthen the fabricated story, plaintiff lodged the FIR. Defendant no1 averred that the account in question was opened by defendant no1 bank after due diligence and following guidelines of Reserve Bank of India on the basis of ration card of proprietor of defendant no3. The documents and cheque submitted by defendant no3 for opening account raised no suspicion. While opening current account, it was not necessary that an introduction is required on the account opening form nor there was any necessity to take any evidence of witness before opening the account. Defendant no1 denied of having not taken any care with regard to heavy withdrawal of the account. Defendant no1 further averred that it had committed no illegal acts for either opening the account or in collection of the payment of the cheque nor its staff was involved in any fraudulent act. There were no CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 7 of 29 guidelines, which read that the account opening formalities are to be completed in presence of bank officials in bank premises. Defendant no1 denied of remaining averments of the plaint in toto and in particular.
3. Defendant no2 filed separate written statement taking preliminary objections viz., (i) present suit is wholly misconceived and not maintainable; (ii) plaintiff had not made out a case for non compliance of conditions, contemplated under section 22(4) of the Banking Regulation, 1949 for cancellation of license of defendant no1, issued by defendant no2 to carry on banking business; (iii) defendant no2 was neither a necessary nor a proper party; (iv) there is no privity of contract between the plaintiff and defendant no2; (v) there is no cause of action for filing the present suit; (vi) this court had no jurisdiction to entertain and try the present suit; (vii) suit had not been properly valued and proper court fees had had not been paid; (viii) the issues involved in the suit relates to individual transaction and the dispute was between the plaintiff and defendant no1. Also was averred that since there was no privity of contract between plaintiff and defendant no2, no monetary decree can be passed against defendant no2 as defendant no2 has not CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 8 of 29 failed to discharge or neglected to discharge any of its duty. Even if, any action on part of defendant no1 bank resulted in violation of the directions/guidelines issued by defendant no2, it does not necessary entail cnacellation of licence. Defendant no2 denied the averments of the plaint parawise.
4. Following is the order dated 22.07.2004 of my Ld. Predecessor : "11/04 22.07.2004 Pre : None for plaintiff.
RC AD of Deft. no.3 received with the report that defendant has left the given address. Deft. no. 1 and 2 have already been served. As per observation given in AIR 1986 Delhi 195 DB Para 8 and 15 if registered letter sent at correct address is received with such report, it is proper service. It was also so observed by Hon'ble Supreme Court in JT 1996 (1) SC
669. Plaintiff is directed to lead evidence by way of affidavit with original documents. The same will be exhibited on the next date and case will also be argued same day. It is adjourned to 27.07.2004 for exparte evidence / argument.
Sd/ ADJ/DELHI 22.07.2004 CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 9 of 29 At this stage, Ld. Cl. For deft. no.1 Sh.
A.K. Mathur filed WS. Its copy to be given to plaintiff placed on record. Deft. no. 2 has already filed WS. Earlier order to examine plaintiff witness will not be relevant in the light of filing WS by defts. It is adj. to 27.07.04 for replication, if any.
Sd/ ADJ/DELHI/22.07.2004"
In terms of aforesaid order, defendant no3 was proceeded against exparte.
5. Plaintiff filed replications to the written statements of the defendants to controvert the contentions of the written statements and to reiterate the averments of the plaint.
6. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 23.08.2004 :
1)Whether suit is not maintainable in view of preliminary objection no1 in WS? OPD
2)Whether plaintiff has privity of contract with defendant no1 bank? OPP CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 10 of 29
3)Whether the suit filed is bad for mis joinder and nonjoinder of necessary parties?
OPD
4)Whether this court has no territorial jurisdiction to try the suit? OPD
5)Whether suit has been filed by duly authorized person? OPP
6)Whether suit is not maintainable against RBI in view of Section 22(4) of Banking Regulation Act? OPD
7))Whether plaintiff is entitled for relief claimed? OPP
8)Relief.
7. Plaintiff examined its authorized representative Sh. Sanjay Singhania as PW1 vide affidavit Ex PI before Ld. Local Commissioner as per order of my Ld. Predecessor. PW1 relied upon documents i.e., (i) true copy of resolution dated 19.12.2002 Ex PW1/1; (ii) incorporation certificate alongwith Memorandum and Article of Association Ex CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 11 of 29 PW1/2; (iii) statement of account issued by State Bank of India, showing debit of Rs. 9,47,300/ against cheque no. 085949 exhibited as Ex PW1/3; (iv) copy of FIR No. 34/2001, P.S. Surajpur, Gautam Budh Nagar u/s 420/468/469/471 IPC exhibited as Ex PW1/4; (v) the photocopy of state guidelines of Reserve Bank of India and letter dated 04.05.1995 of Chief General Manager given exhibits as Ex PW1/5 and Ex PW1/6, respectively; (vi) copy of notice dated 15.10.2001/15.12.2001 exhibited as Ex PW1/7; (vii) postal receipt and UPC receipt exhibited as Ex PW1/8 and Ex PW1/9, respectively; and (viii) reply dated 18.02.2002 to notice of plaintiff exhibited as Ex PW1/10.
Sh. R.K. Sikka, Manager SBI (Commercial Branch), Sector18, Noida, U.P. was examined as PW2 before Ld. Local Commissioner as per order of my Ld. Predecessor. PW2 relied upon the computerized statement of account of the plaintiff as PW2/1; attested copy of cheque no. 00085949 dated 09.04.2001 Ex PW2/2 of Rs. 9,47,300/ drawn on SBI.
SubInspector Mahesh Chandra, Investigating Officer of case crime no. 34/2001, P.S. Surajpur, Gautam Budh Nagar, UP was examined before my Ld. Predecessor also as PW2. CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 12 of 29
8. Sh. Munir Ahmed Khan, Assistant Ahlmed of the court of Chief Judicial Magistrate, Gautam Budh Nagar, Noida PhaseII, was partly examined in chief on 25.05.2007 before my Ld. Predecessor. On 25.05.2007, the further examination of witness PW3 was deferred as account opening form stated to have been kept in a sealed envelop was not brought by the witness. PW3 was not got further examined by plaintiff. Incomplete testimony of PW3 cannot be read in evidence.
9. On 11.03.2011, since none had appeared on behalf of plaintiff, the case was dismissed in default by my Ld. Predecessor. Vide detailed order dated 03.12.2012 of my Ld. Predecessor, the application under Section 5 of Limitation Act and other application under Order IX Rule 9 CPC of plaintiff were allowed subject to cost and suit was restored to its original number and position. On 02.09.2014, evidence of plaintiff was closed before my Ld. Predecessor after proxy counsel for plaintiff gave statement to that effect.
10. Defendant examined its operation officer Sh. Prabhas Kumar as DW1 vide affidavit Ex DW1A. DW1 relied upon documents i.e. CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 13 of 29 copies of account opening form and ration card marked as MarkDX1 (colly).
11. I have heard arguments addressed by Sh. D.D. Dayani, Ld. counsel for plaintiff, Sh. Amol Sharma, Ld. counsel for defendant no1 and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments filed on behalf of plaintiff and defendant no1 and have also examined the record of the case.
12. My issue wise findings are as under : Issue No(6) Whether suit is not maintainable against RBI in view of Section 22(4) of Banking Regulation Act? OPD Aforesaid issue no6 was treated as preliminary issue by my Ld. Predecessor and following is the order dated 28.09.2004 of my Ld. Predecessor in terms of which issue no6 stands previously decided in CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 14 of 29 favour of defendant no2 as regards the first relief : "Suit no. 11/04 28.09.2004 Pr. Ld. Counsel for plaintiff.
Sh. P.S. Rana.
Ld. Counsel for deft. no. 2 Sh. H.S. Parihar.
Ld. Counsel for deft. no.1 Ms. Indrani Mukherjee.
None for deft. no. 3.
Today, case was fixed for argument on Issue no. 6 which was framed to the effect "Whether suit is not maintainable against RBI in view of Section 22 (4) of Banking Regulation Act". Argument heard.
According to Ld. Counsel for defendant no. 2, there is no bar to file suit as such against RBI, but, bar is there to direct RBI to cancel licence of particular bank. Ld. Counsel for plaintiff has agreed not to press the first relief sought against defendant no. 2 which was to the effect that the decree for mandatory injunction directing defendant no. 2 to cancel and revoke licence and permission granted to defendant no. 1 for running bank business may be passed. In view of the statement of Ld. Counsel for plaintiff, the first relief sought against defendant no. 2 for direction to defendant no. 2 to cancel CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 15 of 29 and revoke licence of defendant no. 1 is deleted and it will not be part of the plaint. Signature of Ld. Counsel for plaintiff obtained on the order sheet. According to plaintiff counsel, defendant no. 2 is proforma party as regards the second relief. Accordingly, it is for the bank to participate or not. Issue no. 6 decided accordingly in favour of defendant no. 2 as regards the first relief. The matter is adjourned to date already fixed i.e. 1/11/2004 for P.E. Sd/ (D.S. PAWERIYA) ADDL. DISTRICT JUDGE DELHI. 28.9.2004"
Findings on Issue No(5) Whether suit has been filed by duly authorized person? OPP
13. In affidavit Ex P1, PW1 Sh. Sanjay Singhania deposed of being authorized by plaintiff company vide resolution Ex PW1/1 dated 19.12.2002 to file the present suit and appoint Advocate and sign all relevant papers. Ex PW1/1, the certified copy of the resolution of plaintiff company embodies the following resolve of plaintiff company CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 16 of 29 that legal action should be taken against defendant no1, 'as it had opened a fictitious account through cheque was presented for payment to M/s Mahaveer Impex vide cheque no. 085949 of Rs. 9,47,300/ debited to our account on 10.04.2001.' It was also resolved therein authorizing PW1 to sign all documents to take this legal action and PW1 was authorized to appoint advocate and fix its remuneration. With respect to the fact of the matter, PW1/plaintiff company passed resolution Ex PW1/1 and legal action interalia includes filing of the civil suit. PW1 has accordingly proved that he was authorized to take legal action including the filing of the suit for and on behalf of plaintiff company. Issue no5 is decided in favour of the plaintiff company and against defendants.
Findings on Issue No(4)
Whether this court has no territorial
jurisdiction to try the suit? OPD
14. It is the case of plaintiff and also borne out in Ex P1 that plaintiff was having C.C. Account No. 01600070036 with State Bank of India, Sector18, Noida, in which account Rs. 9,47,300/ was debited CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 17 of 29 against cheque no. 085949 dated 09.04.2001 on 10.04.2001 in favour of defendant no3. PW1 averred that said cheque was not issued by plaintiff and it came in hands of defendant no3 by manipulation and in connivance with some persons and had been cleared by defendant no1 bank branch in the name of defendant no3, located at Thane, Maharashtra. PW2 deposed that aforesaid cheque was presented for clearance through Standard Chartered Bank, Vasant Lok, Vasant Vihar, New Delhi and debited to the account of plaintiff on 10.04.2001. Regional office of defendant no1 is situated in New Delhi. Though, registered office of plaintiff company is situated in Delhi but the aforesaid bank account in question of plaintiff was at Sector18, Noida, UP. Defendant no3 is stated to be at Thane, Maharashtra, where it was having its aforesaid bank account no. 22505439669 in Standard Chartered Bank. Facility of 'anywhere banking' had been extended by defendant no1 bank to its customers interalia for deposit of cheque(s) in any branch irrespective of the fact of their holding account in a different branch. The aforesaid cheque in question was deposited for presentation in Standard Chartered Bank, Vasant Lok, Vasant Vihar, New Delhi branch, situated at Delhi. The present suit is in respect of the recovery of CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 18 of 29 sum of said cheque with interest. Part of cause of action had arisen in Delhi. This court has territorial jurisdiction to entertain the present suit accordingly. Issue no4 is decided against the defendants and in favour of plaintiff accordingly.
Findings on Issue No(3) Whether the suit filed is bad for misjoinder and nonjoinder of necessary parties?
OPD
15. It had been the preliminary objection of defendant no1 that suit was bad for misjoinder and nonjoinder of necessary parties. In written statement, defendant no1 averred that plaintiff had not made its banker i.e. State Bank of India as a party to the suit though it was necessary and proper party and had cleared the cheque in question being the paying banker, whereas defendant no1 bank was neither a necessary nor a proper party. Suit has been filed with the allegations not against any official of State Bank of India, banker of plaintiff from where the amount of the cheque was released on presentation. It is the case of the CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 19 of 29 plaintiff that officials of defendant no1 were negligent in opening of the account of defendant no3 in Maharashtra and in fact had opened account in name of defendant no3, which was a fictitious person. It is also the case of the plaintiff that officials of defendant no1 had not followed the RBI guidelines in opening of the account of defendant no3 and in fact facilitated defendant no3 for withdrawal of the proceeds of the cheque consequent upon honour of the cheque in question. No cogent evidence has been led by defendant no1 to discharge its onus on this issue. Issue no3 is decided against defendants and in favour of plaintiff accordingly.
Findings on Issue No(2) Whether plaintiff has privity of contract with defendant no1 bank? OPP
16. Elicited facts in pleadings of the parties and borne out of evidence on record make it implicit clear that plaintiff company did not ever enter into any transaction with defendant no1 bank. Cheque in question was deposited at Vasant Lok, Vasant Vihar Branch of defendant no1 and cleared by banker of plaintiff at Sector18, Noida, UP and CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 20 of 29 proceeds were remitted to banker of defendant no3 at Thane Branch. Plaintiff had no privity of contract with defendant no1 bank. Issue no2 is decided against the plaintiff and in favour of defendants accordingly.
Findings on Issues No(1) & (7)
1)Whether suit is not maintainable in view of preliminary objection no1 in WS? OPD
7))Whether plaintiff is entitled for relief claimed? OPP
17. In para1 of written statement, defendant no1 took preliminary objection interalia that in view of Section 131 of Negotiable Instruments Act, plaintiff cannot have any claim against defendant bank, since, defendant no1 bank had the status of collecting banker in the whole transaction and defendant no1 bank had opened the account of defendant no3 somewhere in February 2001, after completion of all formalities as per RBI guidelines. As on the date of clearance of cheque in question i.e. on 10.04.2001, before the amendment by Act 55 of 2002 w.e.f. 06.02.2003, following was the Section 131 of Negotiable CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 21 of 29 Instruments Act, 1881 : "131. NonLiability of banker receiving payment of cheque. A banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment.
[Explanation. A banker receives payment of a crossed cheque for a customer within the meaning of this section notwithstanding that he credits his customer's account with the amount of the cheque before receiving payment thereof.]"
18. It is the case of defendant no1 and DW1 that account of defendant no3 was opened in defendant no1 bank on basis of photocopy of ration card and a cheque was also attached with account opening form of defendant no1, which cheque was for being deposit in account of defendant no3, somewhere in February 2001.
19. PW2 Sh. Mahesh Chandra, Senior Sub Inspector, deposed of being Investigating Officer of FIR registered at Noida, U.P. on the CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 22 of 29 complaint of plaintiff against wrongful encashment of cheque by defendant no3 through defendant no1. PW2 Investigating Officer stated that he had not seized the original account opening form of defendant no1 but had obtained the true certified copy of the same and found no firm by name of Mahavir Impex at address given on the form during course of investigation besides which the photograph pasted on account opening form was also not of actual account holder. The Investigating Officer PW2 stated of having visited address of defendant no3 somewhere in the area of PS Meera Road, Bahinder East, Mumbai. PW2 Investigating Officer did not testify of having visited the address "
C208, Anurag Villa, RNP Park, Bhayandar (E), Thane, Maharashtra", the address of defendant no3 stated by plaintiff in memo of parties. Assistant Ahlmed of the Court of Chief Judicial Magistrate, Gautam Budh Nagar, Noida, was partly examined as PW3 and had not produced the original account opening form nor was got summoned again by plaintiff to appear with original account opening form, since in that direction no steps were taken by plaintiff in course of plaintiff evidence. MarkDX1 (colly) is a photocopy of account opening form filed with list of documents dated 10.03.2005 by proxy counsel for defendant no1 on CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 23 of 29 01.06.2005. As on 01.06.2005, DW1 was not in employment with defendant no1 since he got employed with defendant no1 on 01.08.2005. Originals of Mark DX1 were not brought on record by taking appropriate steps by plaintiff adverting to mandate of law laid in Order XI of the Code of Civil Procedure, 1908 in terms of which plaintiff may have delivered interrogatories in writing or moved application for discovery of documents applying to this court for an order directing the defendant no1 to discover on oath the documents or appropriate steps could be taken by defendant no1 for securing production of the original account opening form and annexure in case they were retained by the magisterial court concerned at Noida/Greater Noida. Also, it has been held above that part testimony of PW3 Sh. Munir Ahmed Khan cannot be read in evidence. FIR or charge sheet of the criminal matter cannot be presumed to be gospel truth unless in the concerned criminal case the charges are proved by the prosecution in accordance with the law and procedure laid in the Code of Criminal Procedure, 1973. Postal envelopes sent to defendant no3 at various stages were received back inter alia with the report of the addressee having left the address and another one with the report of intimation. No cogent evidence has been CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 24 of 29 led on record by plaintiff to prove that there was no person by name of Sh. Vijay Jain @ R.K. Jain to presume said person to be a fictitious person or M/s Mahavir Impex to be a fictitious concern. Address of defendant no3 elicited above and given in the plaint and memo of parties was not visited by PW2 Investigating Officer of the criminal case, so evidence of PW2 Investigating Officer also does not prove the fact that arraigned defendant no3 of aforesaid address was a fictitious entity.
20. Photocopy given Ex PW1/5 before Ld. Local Commissioner in plaintiff evidence is photocopy of a letter of RBI bearing date August 7, 2000. Photocopy given Ex PW1/6 before Ld. Local Commissioner in plaintiff evidence is of letter dated 04.05.1995 of Chief General Manager, addressed to the Chief Executive of all Commercial Banks. No steps were taken by the plaintiff in the pendency of the matter for seeking production of originals of the copies Ex PW1/5 and Ex PW1/6 from defendant no2 RBI for getting these documents proved in accordance with the law. Accordingly, these photocopies Ex PW1/5 and Ex PW1/6 stand not proved.
CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 25 of 29
21. There is no cogent evidence, oral or documentary, proved on record by the plaintiff that defendant no1 violated any rules or guidelines of RBI in opening account of defendant no3. Plaintiff has also failed to prove that it was mandatory for defendant no1 bank to open the account of defendant no3 only on introduction of any existing account holder in the same bank/branch or photograph of account holder was to be necessarily affixed on the account opening form. Photocopy of ration card as well as the cheque in favour of defendant no3 were stated to be provided by defendant no3 to officials of defendant no1 at the time of opening of account of defendant no3 with defendant no1 in Maharashtra. Plaintiff has also failed to prove what other care was necessary for defendant no1 bank in opening the account of defendant no3 and for operation of such account, which was not taken by defendant no1 or there was any noncompliance of any laid rules/guidelines so as to prove negligence on part of defendant no1 either in opening of account of defendant no3 or of operation of said account including withdrawal of the sums by defendant no3 therefrom consequent upon receipt of proceeds of cheque in question therein. CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 26 of 29
22. It is admitted case of PW1 that cheque book containing the disputed cheque got cleared by defendant no3 as well as other cheques were left with accountant of plaintiff, which all were stated to be missing. These cheques including disputed cheque, copy Ex PW2/2 were bearing signatures of PW1. PW1 has neither elicited nor proved the circumstances in which he had left the signed cheques in custody of his accountant and their purpose nor as to how the cheque in question from amongst those left entrusted cheques with said accountant of plaintiff had been manipulated or came in custody of any other person including defendant no3 facilitating its presentation and encashment. It is borne out of evidence on record that the cheque in qestion was duly signed by PW1 and was presented before the bank of plaintiff, where plaintiff had an account and there was mandate to plaintiff bank to pay the amount covered by the cheque. Consequent upon honouring of the cheque in question, the proceeds were transfered to the account of defendant no3, at Thane, Maharashtra. Plaintiff had not taken any steps to even intimate defendant no1 of any act of fraud or cheating or forgery with respect to cheque in question before the proceeds of the cheque in question were released or withdrawn by defendant no3 after about two months of CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 27 of 29 opening of account by defendant no3. Plaintiff has failed to prove any negligence on part of officials of defendant no1, from evidence on record. Per contra, negligence of plaintiff is apparent on record since PW1 delivered the signed cheques allegedly with his accountant but how these cheques came into possession of defendant no3 and were used by defendant no3, has not been brought in evidence on record. Plaintiff and PW1 chose to dispense with ordinary precaution apparently because they had complete faith in their accountant, so they cannot claim to throw upon banker/defendant no1 the loss which resulted to plaintiff on account of the transaction in question. Even otherwise, plaintiff has neither produced its account books nor proved the duly certified copies of final accounts having list of creditors to show having no business relationship with defendant no3 for having not issued cheque in question to defendant no3 for any business transaction. Being a company under Companies Act, plaintiff company was under bounden duty to maintain account books which were to be also duly audited. Plaintiff having with held the final accounts/ books of account aforesaid, there is no option but to draw adverse inference that had such final accounts/books of accounts aforesaid been produced at the first stage of hearing of the suit in terms CS30/2013 M/s EPack Polymers Pvt. Ltd. Vs. The Standard Chartered Bank & Ors. Page 28 of 29 of Order VII Rule 17 of CPC or at any stage during evidence, then it would have been unfavourable to it having with held it in terms of illustration (g) of Section 114 of the Evidence Act, 1872. In view of foregoing discussions, the issues no1 and 7 are decided against the plaintiff and in favour of defendants accordingly.
RELIEF
23. In view of findings on issues no1 and 7 above, the suit of plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court (GURVINDER PAL SINGH) on 27th Day of July, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
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