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1.This second appeal has arisen from the judgment and decree of the learned Subordinate Judge, Namakkal made in A.S. No. 27/88 dated 18-8-1989 setting aside the judgment and decree of the learned District Munsif. Rasipuram made in O.S. No. 404/85 dated 24-8-1987.

2. The respondent herein filed a suit seeking for a money decree for a sum of Rs,10,500/- with subsequent Interest with the following averments. The plaintiff, a customer of the defendant Bank, was having a current account with the defendant and the present folio Number is 156. The plaintiff advanced a loan of Rs.10,000/- to one Mr. G. Subramanian, Proprietor of V1J1 Gas Service. Rasipuram on 11-3-1985, G. Subra-maniam issued a cheque of State Bank of India, Rasipuram Branch bearing No. 0630522 to the plaintiff for Rs.10.000/-dated 10-4-1985 towards his loan. The said cheque was presented on 10-4-1985 with the defendant bank for collection and the amount was collected and credited into the plaintiffs account. When the plaintiff presented a cheque on 12-4-1985 to withdraw the said sum of Rs. 10,000/-, the defendant Bank had also paid the same. The plaintiff credited the said sum towards the loan account of G. Subramanlam and returned back all the documents to him after closing his loan account. On 16-4-1985, the defendant bank informed the plaintiff that the said cheque issued by G. Subramaniam had been returned without collection, and without prior intimation to the plaintiff, they debited Rs.10,000/- in the plaintiffs account under a debit note dated 16-4-1985, which was issued to the plaintiff on 18-4-1985. thereby the defendant Bank had withheld the plaintiffs money illegally and unlawfully. The defendant has no light to debit the said sum in the plaintiffs account, as they had already credited the said amount. On 18-4-1985 the plaintiff complained the matter to the higher authorities of the defendant. A reply dated 20-4-1985 was sent by the defendant Bank's Customer Service at Madras. As there was no further response, the plaintiff issued a legal notice on 4-7-1985. On 31-7-1985, the defendant sent a reply stating that the matter had received the attention of their Head Office and on hearing from them they would reply. The defendant neither sent any reply nor had taken any steps to credit the amount into the plaintiffs account. The defendant had given a reply on 12-10-1985 with false allegations. There was no mistake or negligence on the part of the plaintiff. The defendant cannot withhold the plaintiffs money and cannot escape from the consequences by simply shifting the burden, on the plaintiff. Hence the defendant was liable to return the said sum of Rs.10,000/-.

3. The defendant Bank filed a written statement and additional written statement contending that there is no bank by nameThe Indian Bank" and unless the plaint is suitably amended, it is not maintainable as such; that as per the contract, the plaintiff has to sue the correct person answerable before the Court of law; that the bank does not know whether the plaintiff advanced a sum of Rs. 10,000/- to one G. Subramanlam; that the plaintiff must prove that he has lent any amount to him; that the plaintiff took undue advantage of a concession shown to a customer by Indian Bank and has chosen to litigate; that the plaintiff took advantage of business practice prevailing among the banks in giving credit to cheques taken in clearing in anticipation that they would be paid by the paying banks; that the suit was bad for non-joinder of M/s. Vijl Gas Service's Proprietor who had issued the cheque, as a party to the suit; that the defendant was always at liberty to reverse the clearing credit if the cheque taken up for collection was dishonoured by the paying bank and the defendant who has Banker's lien on customer's money had rightly exercised the right in debiting the customer's account since the cheque in question was dishonoured by the paying bank; that the defendant had already issued a suitable reply notice to the suit notice: that the statement given by Mr. Ravi, Managing Partner of the plaintiffs firm before the Inspector of Branches of Indian Bank by name Mr. P.V. Krishnamoorthy during the investigation of this case would lend support to the defendant's case; that when the cheque in question was presented before Rasipuram Branch of Indian Bank, it was represented by the partner of the plaintiff that since the cheque was a local cheque and issued by a dealer of Gas Company having sound business, it would be surely encashed; that in order to maintain a cordial relationship between the bank and the customer, the Bank obliged to the plaintiff with an adjustment of Rs. 10,000/- pending realisation of the proceeds; that Immediately on coming to know about the dishonour of the cheque on 15-4-1985, the bank had exercised its right in lien and debited Rs. 10,000/- from the account of the plaintiff; and thus no negligence could be attributed to the defendant; that the plaintiff could not have any grouse over the defendant bank and hence the suit was liable to be dismissed. is is also contended that the former Peon of the Rasipuram Branch of Indian Bank by name T. M. Perlasamy has acted in collusion with the plaintiff in concealing the return of the cheque by State Bank of India on 10-4-1985; in order to help the plaintiff in getting the credit and withdrawing the amount on 12-4-1985; that the said peon was on leave on 12-4-1985; that he brought the return of the cheque to the knowledge of his superiors only on 16-4-1985 and that he had been dismissed from service in September 1985 on charges of fraud in connection with some other transaction.

7. The learned counsel appearing for the appellant bank would submit that the decision of the trial Court was a well considered one and hence the Subordinate Judge should have confirmed the same; that the respondent/plaintiff was not entitled to claim any amount from the bank; that the bank had the right to exercise the general Hen on the money balance of its customers coming into the ordinary course of business; that the suit was bad for non-Joinder of the necessary party viz. the third party Subramaniam who issued the cheque to the plaintiff; that as evidenced by Ex. B4. the cheque deposited by the plaintiff drawn on State Bank of India, Rasipuram was returned on the same day with the endorsement "referred to drawer"; that the plaintiff has not taken any legal action against the said Subramaniam for the cheque given by him to the plaintiff on the State Bank of India being returned; that there has been a collusion between the plaintiff and the third parry Subramaniam to cause loss to the bank; that the suit itself was not maintainable in view of the non-Joinder of the said Subramaniam; that there was no negligence at all on the part of the bank and while so the first appellate Court should have confirmed the judgment of the trial Court and dismissed the suit; that the plaintiff whose cheque had been dishonoured, had no right to complain about the Bank exercising its powers of lien on the balance of the plaintiff. in support of his contentions, the learned counsel relied on the following decisions : 1) AIR 1960 Punjab 632; 2) and 3) .

9. Briefly stated admitted facts which are relevant for the disposal of the present appeal are that the plaintiff firm a customer of the appellant/defendant bank was having a current account with them; that one Subramaniam issued Ex.A4 cheque bearing No. 0630522 dated 10-4-1985 for Rs.10,000/- drawn on State Bank of India Rasipuram Branch to the plaintiff; that the respondent/plaintiff presented the said cheque with the defendant bank on the same day i.e. on 10-4-1985 for collection; that the same was given credit to into the plaintiffs account on 10-4-1985; that the respondent/ plaintiff presented a cheque on 12-4-1985 to withdraw the cheque amount of Rs.10,000/-; that the appellant bank has also paid the said amount of Rs. 10,000/- to the respondent on 12-4-1985 the appellant bank informed the respondent that the said cheque placed by the respondent in the hands of the appellant for collection was returned with an endorsement "referred to drawer" as evidenced by Ex. A8 and consequent to the said cheque returned without collection, the appellant bank debited Rs.10.000/- in the plaintiffs account and issued a debit note under Ex.A9 dated 16-4-1985 to the plaintiff on 18-4-1985.