TANJORE PERMANENT BANK Vs. S R RANGACHARI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in O. S. No. 55 of 1951, in the court of the subordinate Judge of Madurai and is confined to the portion of the claim which was disallowed by the learned Judge. The plaintiff is the Tanjore Permanent Bank ltd. , Tanjore. The suit was for recovery of Rs. 12,553-14-6 duo from the first defendant on dealings up to 4th December, 1950. The first defendant was a constituent of the Madurai branch of the plaintiff bank. He had a current account with that branch and he was also granted facilities for discounting bills. The amount claimed is the balance alleged to be due from the first defendant in respect of his current account which was overdrawn. The first defendant had executed a registered memorandum of equitable mortgage on 30th october, 1957, by deposit of title deeds of some of his properties in Madurai for securing overdraft accommodation to the extent of Rs. 15000. The second defendant was the manager of the Madurai branch during the material period and a decree was claimed against him on the ground that without the sanction of the head office, in collusion with the first defendant, he granted large amounts of overdrafts to the first defendant. The plaintiff prayed for a personal decree against de- fendanls 1 and 2 and a mortgage decree in respect of the properties covered By the equitable mortgage. The first defendant denied that the sum claimed by the plaintiff was due from him and pleaded that on a proper taking of account a sum of Rs. 51-12-5 would be due to him from the bank. He also denied that the equitable mortgage could be enforced to recover the suit amount. He therefore prayed that the suit may be dismissed, The second defendant denied any collusion between him and the first defendant and pleaded that he was not personally liable to any extent. The learned Subordinate Judge who tried the suit passed a decree in favour of the plaintiff as against the first defendant for Rs. 3215-6-7 and interest thereon at six per cent per annum from the date of suit. In respect of this amount there was a preliminary mortgage decree. The suit as against the second defendant was dismissed. The subject matter of the appeal is the difference between the amount claimed in the suit and the amount actually decreed by the lower court.

(2.) IN this appeal Mr. K. Bhashyam Aiyangar, learned counsel for the plaintiff-appellant, dealt with only two of the items in the account between the plaintiff bank and the first defendant, namely, the sums of Rs. 7600 and Rs. 4200 debited against the first defendant as moneys paid as per two cheques bearing Nos. 225033 and 225032 on 24th July, 1947 and 5th August, 1947 respectively. The first defendant denied his liability for these two sums. He did not deny that the two cheques in question were signed by him. His case briefly was as follows : He wanted a sum of Rs. 16000 from the bank. He was asked by the second defendant, the then manager, to send three blank cheques to enable the money being drawn. Actually, however, the total sum of Rs. 16000 was drawn from the bank on one of the three blank cheques, namely, 225034. According to the first defendant, the other two blank cheques which were not really necessary were not returned to him but they were used by the bank officials to fill them up and draw Rs. 7600 and Rs. 4200 respectively. In the cheque for Rs. 7600 (Ex. B. 80) the payee's name as found is K. R. Subbaranian, admittedly one of the clerks of the first defendant. In the other cheque (Ex. B. 81) the payee's name is shown as Ramachari, another clerk of the first defendant. On the back of the two cheques the names of the respective payees are found. The first defendant, however, denied that the signatures were those of subbaraman and Ramachari. In the third cheque the payee's name was also K. R. Subbaraman and the first defendant admitted that it was Subbaraman who signed on the back of that cheque. The case developed at the trial was that the accountant, Nallaperumal, filled up the two blank cheques and presumably drew the money for his own benefit.

(3.) THERE is no reliable evidence as regards several important matters. Except the evidence of the first defendant himself there is nothing on re cord to show that the first defendant sent with his clerk Subbaraman three blank cheques in accordance with the instructions of the second defendant. The second defendant himself denied that he ever asked the first defendant to send him three blank cheques. The first defendant departed from his original case that the second defendant instructed him to send the three blank cheques and that he was responsible for the unauthorised collection of moneys. Nallaperumal, the accountant, was put forward as the villain of the piece. P. W. 3 the Inspector of plaintiffs branches admitted that the two impugned cheques are in the handwriting of Nallaperumal, Except the entry in the plaintiffs ledger, there is no other evidence of actual payment of the two sums of Rs. 7600 and Rs. 4200. Subbaraman was dead by the time of the trial. Ramachari was alive but was not called; nor was Nallaperumal.