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18. It is true that the H.D.F.C. Bank has not led any evidence by either examining witness or proving the documents. According to H.D.F.C. Bank, by the time the instruments were presented at New Delhi by the plaintiff, H.D.F.C. Bank received notification from Charotar Bank instructing it to stop payment. Proof of these allegations would have been vital, and it would have been necessary to go into the reasons why C/FA/3136/2011 JUDGMENT the Charotar Bank asked the H.D.F.C. Bank to stop payment, or in fact, more fundamentally, whether Charotar Bank at all so instructed the H.D.F.C. Bank. However, the plaintiff has never questioned this part of the stand of the H.D.F.C. Bank. The plaintiff has never contended in any proceedings or his evidence that even if the instruments were in the nature of cheques, in absence of any instructions from Charotar Bank to H.D.F.C. Bank to stop payment, or for such any other reason, the H.D.F.C. Bank could not have refused to pay up the amounts indicated in such instruments. It was, therefore, that the trial court did not raise any issue on this aspect. In fact, right from the inception, the stand in the plaintiff's summary suit has been that the instruments were in the nature of demand drafts, and therefore, it would simply not be open to H.D.F.C. Bank to refuse to pay the same, notwithstanding any contrary instructions from Charotar Bank. We will have to, therefore, test the plaintiff's entire argument on such basis. In other words, as stated in the very beginning, the plaintiff must fail or succeed on the question whether the instruments in question were in the nature of cheques or demand drafts. If such instruments are established to be cheques, the H.D.F.C. Bank owed no duty to the plaintiff to release the amounts in the face of the unquestioned instructions from the Charotar Bank, which aspect the plaintiff has never questioned. On the other hand, if the instruments are shown to be demand drafts, the H.D.F.C. Bank could not have stopped payment, even C/FA/3136/2011 JUDGMENT under the instructions from the Charotar Bank. The plaintiff cannot succeed on the H.D.F.C. Bank not leading any evidence. The Bank cannot be expected to prove what was not at issue. The plaintiff must stand on his strength of evidence.

"6. Examining the petitioner's case in the light of the aforesaid legal position, we find that on the ground that the drafts were lost, the petitioner was entitled to get the payment of drafts stopped as against strangers. He could not, however, ask the Bank not to pay even the payee or any other holder in due course. The Marwadi Road Branch of State Bank of Indore was, therefore, right in refusing to stop payment when the drafts were presented by the payee. The decision of the Supreme Court in M/s. Hyderabad Commercials (supra) has no application to the facts of this case. In that case a huge amount was transferred unauthorisedly by the Bank from account of one customer to another. In paragraph 5 of the judgment it was observed as follows:--

"Since the basic facts regarding the unauthorised transfer of the disputed amount from the appellant's account as well as the Bank's liability was admitted, there was no justification for the High Court to direct the appellant to file suit on ground of disputed question of fact. The respondent Bank is an instrumentality of the State and it must function honestly to serve its customers."

Thus the basic facts that the transfer was unauthorised and the Bank was liable were admitted in that case. In the present case, the petitioner started with loss of drafts and did not explain as to how the payee could be stopped from enforcing payment on the basis of drafts drawn in his favour. The case has, therefore, no application to the present one."

20. In this context, therefore, we may assess the evidence on record. The plaintiff was examined at Exh.219. In his sworn affidavit, he stated that Charotar Bank had issued the demand drafts drawn on H.D.F.C. Bank towards the payment of the office bill dated 20 th November 1999.

C/FA/3136/2011 JUDGMENT He is, therefore, entitled to such payments from the H.D.F.C. Bank. Though such demand drafts were issued by the Charotar Bank, the same was done under an authority given to Charotar Bank by the H.D.F.C. Bank. The H.D.F.C. Bank had illegally stopped the payment of the demand drafts when presented. He stated that Charotar Bank had no authority to instruct H.D.F.C. Bank to stop payment. He tried to point out that in number of cases the directions of the Reserve Bank of India for specific code numbers is not maintained by different Banks. He was cross-examined at length by the advocate of the H.D.F.C. Bank.