ORIENTAL BANK OF COMMERCE Vs. PAWAN KUMAR AGGARWAL

JUDGEMENT

(1.) TWO nationalized banks have filed separate appeals feeling aggrieved by the judgment and decree dated 02.07.2004 passed by the Court of Additional District Judge in a suit filed against them by respondent no.1-plaintiff whereby a joint and several decree for a sum of Rs.2,62,036/- alongwith interest thereon @ 9 % p.a. from the date of filing of the suit till the date of the decree and @ 5% p.a. from the date of the decree till realization in full was passed against both of them. Though both the banks had filed separate appeals but the same were heard analogously and so are being disposed of also together by this common judgment.

(2.) THE case of the appellant-plaintiff(who shall hereinafter be referred to as ,,the plaintiff) was that his proprietorship firm by the name of M/s Bansal Industries had supplied certain goods to THE National Small Industries Corporation Ltd.,a Government of India Enterprise(hereinafter to be referred to as ,,NSIC) and towards the payment of price of those goods NSIC had issued an account payee cheque no. 508735 dated 17/0498 for Rs.2,62,036/-(hereinafter to be referred as ,,the cheque in dispute) and that cheque was drawn on State Bank of Saurashtra(Nehru Place branch, New Delhi) which was impleaded in the suit as defendant no.2 and hereinafter also shall be referred to as ,,defendant no.2. THE plaintiff was maintaining a current account No. 2371 in the Azadpur branch of Oriental Bank of Commerce, which bank was impleaded in the suit as defendant no.1 and shall hereinafter also be referred to as ,,defendant no.1. THE plaintiff had deposited the cheque in dispute with the Azadpur branch of defendant no. 1 on 18/4/98 for collection of its proceeds from defendant no.2 bank. THEreafter when he enquired about the realization of the said cheque from the defendant no.1 on 22/04/98 the concerned officer informed him that his cheque had not been received back and he was also told by the same officer that the cheque had been misplaced. THE plaintiff became suspicious and then he went to the office of NSIC on 22/04/98 itself for issuance of ,,stop payment instructions to defendant no.2 but he was informed that the payment of the cheque in dispute had already been debited to its account on 21/4/98. On 30/4/98 defendant no.1 informed him that the cheque in dispute had been got encashed fraudulently by someone from defendant no.2 bank. THE plaintiff then lodged a complaint with the police on 05/05/98. THEn the plaintiff served a joint demand notice dated 1/07/99 upon defendant no.1 as well as defendant no.2 through his advocate and when he did not succeed in getting his money from both the banks he filed a suit against them for recovery of Rs.3,91,604/- which sum included the cheque amount of Rs.2,62,036/-. and interest of Rs. 1,29,568/-. In the plaint the plaintiff alleged that firstly someone in collusion between the officials of defendant no.1 had taken away the cheque in dispute from its Azadpur branch and then in collusion with the officials of defendant no.2 bank had got it encahsed fraudulently across the counter.

(3.) ON the basis of the above pleadings the following issues were framed by the learned trial Judge: