BANK OF BARODA Vs. KAYENKAY AGENCIES

JUDGEMENT

(1.) The Bank of Baroda, appellant/ plaintiff filed a suit for recovery, inter alia, on the grounds that the respondents had obtained the clean bill purchase facility by presenting a cheque dated 26th September, 1972 for Rs.10,000/- drawn on State Bank of India, Ghaziabad. The cheque on presentation was dishonoured. Beside this clean bill purchase facility, the respondents also availed over-draft facility to the tune of Rs. 5.000/- which amounts the respondents failed to repay in spite of notice, hence, the suit.

(2.) By the impugned judgment the suit was dismissed primarily on the ground that the appellant bank failed to prove that clean bill purchase facility was availed by the respondents. Secondly over-draft facility was without consideration.

(3.) Aggrieved by this judgment present appeal was preferred. The issue before this Court is; whether the appellant bank was required to prove an admitted document Ex.PW-3/1 by virtue of which the respondents admitted their liability. Does an admitted document requires any proof? Secondly pursuance to the over draft facility if the amount was, released after the execution of the documents, does it amount to a transaction without consideration.? In order to answer these questions we may have glance to the provision of the Indian Contract Act, 1872 (hereinafter referred to as the Act) and in particular Sections 2(d) and (f) which are reproduced as under:-