PUNJAB NATIONAL BANK Vs. MULTANMUL

JUDGEMENT

(1.) THE plaintiff, who lost the case before the lower appellate court, is the appellant. THE suit was filed by the plaintiff to recover a sum of Rs. 27, 769. 18. THE suit was resisted by the defendant and the trial court, namely, the 11th Assistant Judge, City Civil Court , Madras, after trial, decreed the suit with costs as prayed for. Aggrieved by the same, the defendant preferred an appeal to the First Additional Judge, City Civil Court , Madras. THE First Additional Judge, City Civil Court , Madras, by his judgment dated September 14, 1983, allowed the appeal and dismissed the suit and hence this second appeal. It is not necessary for the purpose of the case to set out elaborately the facts of this case. It is admitted case of the parties that the defendant was the authorised appraiser of the plaintiff-bank. During the year 1976, one Mohanlal approached the plaintiff-bank for a loan pledging certain jewels with a view to obtain credit facilities. He pledged jewels on May 6, 1976, July 13, 1976, and July 20, 1976. On those three occasions, it was the defendant who as the appraiser was called by the plaintiff-bank to appraise the jewels and accordingly, the defendant as the appraiser, appraised the jewels and certified that the weight, market rate and the gold content of the jewels were verified by him and found to be correct by him. Exhibits A-3, A-5 and A-7 are the said certificates, so issued by the defendant as an appraiser. When examined the defendant would admit that he has certified under exhibits A-3, A-5 and A-7 to the effect that the weight, market rate and the gold content are correct as stated therein. In the list of jewels given by the borrower, Mohanlal the defendant has signed on July 13, 1976, as seen from exhibit A-1. THEse three documents, exhibits A-3, A-5 and A-7 have been signed by the defendant as the appraiser and by the borrower Mohanlal in whose presence, the jewels were appraised. It is not in dispute that solely on the basis of the certificates and the valuation so given by the defendant as the appraiser, relating to those three pledges, loans were sanctioned to Mohanlal. It is not only spoken by p. W.-1 but it is also admitted by D. W.-1. THE further admitted case is that the jewels so pledged by Mohanlal were spurious jewels and not gold jewels. This was found out by South India Bank. THErefore, the plaintiff got the jewels pledged by Mohanlal examined by Ranganatha Rao, Gowri Jewel, Mar t and found out that the jewels pledged by Mohanlal were spurious and were not made of gold. Complaint was therefore, given by the bank against Mohanlal and the defendant. THE case was pending on the date of suit. In the meanwhile, mohanlal was adjudicated as an insolvent in I. P. No. 52 of 1978. Since lending to Mohanlal was done by the plaintiff only on the sole basis of the certificates issued by the defendant, who appraised the jewels for remuneration and who has issued certificates as to its quality and quantity and gold content though knowing fully well that they were spurious jewels the suit has been filed to recover the loss sustained by the plaintiff-bank in advancing the loans to Mohanlal on the strength of the certificates. In the written statement, the defendant contended that the office bearers of the bank were also responsible for the loss or malpractice. Assuming those averments to be true, it is not a defence for the defendant to say that he is not liable. He has admittedly as the appraiser, appraised the jewels and has issued certificates. It is also not in dispute that later on verification by the different appraiser, the jewels which was certified by him to be genuine gold ornaments were found to be fake jewels by the other appraiser. THE borrower to whom the money was lent by the bank on the strength of the certificates issued by the defendant was adjudicated as an insolvent. THErefore, to recover the amount, so advanced, to the borrower on the strength of the certificates issued by the defendant, the suit is filed. THErefore, it is no defence for the defendant to say that the office bearers of the plaintiff-bank are also responsible. It is the categoric consistent and clear case of the plaintiff that the lending was made only on the basis of and depending upon the certificates issued by the defendant as the appraiser. THEre was sufficient evidence adduced before the trial court to show that once pledging is made, the articles will be received after appraisal and the same will be kept in safe custody. It is clear that the jewels have been kept in safe custody, during the year 1976-78. THErefore, it is impossible to plead that somebody could have tampered with the same. It is not disputed that the certificates issued under exhibits A-12 to A-14 are not correct. In other words, it is not the case of the defendant that the certificates issued by him are true and that the jewels, he tested had content of gold as held out and were of particular weight and purity and were thus, genuine jewels and that the other appraiser did not weigh it properly and the certificate given by him is not correct. Such a case is not put forward. THE trial court has stated that there was sufficient evidence to show that the jewels pledged by Mohanlal were tested on September 15, 1979, and this evidence has not been controverted by the defendant in any manner. No definite case was put forward by the defendant that there was any collusion between Mohanlal and Shenoy, the then manager. In this connection, exhibit B-1 has been relied upon by the defendant. But exhibit b-1 neither bears any date nor is filled up and it is not signed by any officer of the bank. D. W.-1 admits that if the jewels were spurious, the form will not be filled up and jewels will be returned back to the parties. THE defendant has not established any link between exhibit B-1 and the officer of the plaintiff-bank, and, therefore, there is nothing in exhibit B-1 to help the defendant, exhibits A-3, A-5 and A-7, the crucial documents were filled up by p. W.-1 and not by the manager Shenoy and D. W.-1 does not dispute the same. That it is his duty as appraiser to appraise the jewels and find out whether the jewels are genuine gold articles or fake jewels and for the same he was paid remuneration is very candidly admitted by him. THE lower appellate court has committed a mistake not one but many. It has embarked upon a wild goose chase. THE judgment of the lower appellate court is to put it mildly, one of presumptions and assumptions. It is but a perverse exercise of judicial discretion by the lower appellate court. Just because P. W.-3 has stated that the appraiser tested in his presence and in the presence of the cashier, it cannot absolve the appraiser of his liability. It is not the case that the cashier signed it with the knowledge that the contents of the jewels were gold and it had certain weight. Appraisal was done in his presence. THErefore, to that effect he has signed the document. It is not the suggestion that the cashier is also capable of appraising or knew how to appraise jewels or that he shared the intentions. P. W.-1 has not stated that the appraising of the jewels by the defendant was to the satisfaction of the cashier. THErefore, the whole matter has been looked at by the lower appellate court from the point, which was never urged by the defendant. When P. W.-1 was in the box, merely because the cashier signed the certificates exhibits A-3, A-5 and A-7 it does not follow that the cashier was aware or had the knowledge that the jewels were spurious jewels. This emphatic case of the plaintiff and the evidence of P. W.-1 and the admission by D. W.-1 himself i s to the effect that solely on the certificates given by the appraiser, the loan was advanced. But the lower appellate court would enter a special plea on behalf of the defendant stating that it is not so. THEre is no mention of lending of money by the witness, P. W.-3. On the other hand, the lower appellate court has run amok in its reasonings. THE lower appellate court has stated that because the plaintiff stated that the defendant played fraud, it must be true, it is not necessary for the bank to examine Shenoy, the then manager. THE defendant admits that he was an appraiser. He admits that he issued the certificates and further admits that loan was advanced on the basis of the same. If he wants to plead fraud, he must set out the plea specifically giving all particulars in the written statement. He must produce evidence to show that fraud was played. It is not for the plaintiff to adduce evidence to disprove the defendant's case. One other reasoning given by the lower appellate court is that when the second test was made by the bank, the bank did not choose to send for the defendant. It is not known as to why the bank should send for of course, the bank could have but they did not do. But from the circumstance, no arguments can be built up to absolve the defendant of his liability. It is not the defendant's case the certificate issued by the other appraiser is erroneous. It is not the case that the jewels were removed stealthily from the bank and switching of the same was done. THErefore, in such circumstances the judgment of the lower appellate court is but a display of perversity. THE reasoning and the observations of the lower appellate court are contrived. THE findings, am contravention of justice. If allegations of fraud and collusion are made, it is necessary for the defendant to establish the same by satisfactory evidence. THE half hearted suggestion cannot be taken as substitute for proof. THE lower appellate court has chosen to adopt a basis that the plaintiff must prove the case beyond doubt as though it is a criminal case, forgetting the plaintiff's case is admitted almost to the case by the defendant. THE issuance of certificates, the sanction of the loans on that basis, the jewels found to be spurious are all admitted facts. THE lower appellate court has therefore, committed a grave error in the approach. THE judgment is nothing but a strange mixture of perversity and misconception. I do not, find any valid reason stated by the lower appellate court for dis-agreeing with the verdict of the trial court. THErefore, on an analysis, I hold that the plaintiff is entitled to the claim in the suit. Consequently, the entire verdict of the lower appellate court deserves to be set aside. In the result, the second appeal is allowed with costs. THE judgment and decree of the lower appellate court are hereby set aside. THE suit shall stand decreed with costs as prayed for throughout. .