ANZ GRINDLAYS BANK LIMITED Vs. G S NANDA

JUDGEMENT

(1.) The plaintiff Bank has instituted the suit for recovery of Rs. 5,34,791.83 (five lacs, thirty four thousand, seven hundred ninety one rupees and eighty three paisa) together with pendente lite and future interest @ 23.75 % p.a. The suit was instituted on 28.7.1997 and summons were directed to be issued to the 'defendant. The defendant was duly served. As the defendant failed to appear on 20.3.1998, 12.5.1988 and 4.9.1998, the defendant was directed to be proceeded ex-parte. The plaintiff was permitted to file affidavit by way of ex-parte evidence. The plaintiff duly filed its affidavit dated 29.1.1999 of its attorney Shri N.K. Jaitley by way of evidence. The original documents were also placed on record and the same were exhibited.

(2.) The plaint has been signed and verified by Shri N.K. Jaitley, who is stated to be the duly constituted attorney of the plaintiff Bank. The original power of attorney in favour of Shri N.K. Jaitley was produced before the Joint Registrar and copy of the same has been duiy exhibitted as Ex. Public Witness .1/1. The affidavit by way of evidence has been filed by Shri. N.K. Jaitley as noted earlier. The plaintiff has, thus, proved on record the due institution of the suit by Shri N.K. Jaitley, Principal Officer/Branch Manager.

(3.) The facts in brief as averred in the plaint and sworn as per the affidavit by way of evidence may be noticed. The defendant, who has an account with the plaintiff Bank, issued a cheque No. 077.505 for Rs. 5 lacs dated 30.7.1996 in favour of Shri Charanjit Singh. Shri Charanjit Singh is also having an account (Account No. OISKP 0879900) with the plaintiff Bank. The plaintiffs case that on the basis of the cheque issued by the defendant, the account of Shri Charanjit Singh was erroneously credited with the sum of Rs. 5 lacs. Even though there was insufficient balance in the account of the defendant. Simultaneously, at the request of Shri Charanjit Singh, whose account had been credited with Rs. 5 lacs, a pay order in favour of M/s. Krown Exports was issued at the behest of Shri Charanjit Singh. On realising that there was insufficient balance in the account of the defendant, the credit entry made in the account of Shri Charanjit Singh was reversed and the plaintiff in compelling circumstances stopped the payment of the pay orders. M/s. Krown Exports, in whose favour the pay order has been issued, lodged a complaint before the Banking Ombudsman dated 17.9.1996 against the plaintiff Bank. The said complaint is Ex. PW.1/2. The plaintiff Bank vide its letter dated 7.11.1996 Ex.PW.1/3 to the Banking Ombudsman stated the factual position. It was explained that the cheque of Rs. 5 lacs drawn by the defendant was return to Shri Charanjit Singh on account of insufficient funds in the account of the defendant and Shri Charanjit Singh was informed and called upon to return the pay order that had been issued under bona fide mistake and without consideration. Shri Charanjit Singh, who had duly received back the returned cheque issued by the defendant, did not return the pay order and on the other hand M/s. Krown Exports insisted on its payment being made. The plaintiff Bank stated before the Banking Ombudsman that Shri Charanjit Singh did not acquire any title in the purchase order, which was without consideration.