PROBODH KUMAR MITRA Vs. HINDUSTHAN COMMERCIAL BANK LTD

JUDGEMENT

(1.) This suit has been filed by the Plaintiff, a share-dealer and stock-broker originally against Hindusthan Commercial Bank Ltd., hereinafter referred to as the Defendant bank and one R.N. Ghosh alias K.K. Ghosh for the recovery of loss and damages suffered due to delivery of stolen shares to the Plaintiff.

(2.) The relevant facts are these:

(3.) On May 7, 1954, the Plaintiff instituted this suit against the Defendant No. 1, Hindusthan Commercial Bank Ltd., and the Defendant No. 2, R.N. Ghosh alias R.K. Ghosh. It is alleged that the Plaintiff has not been able to serve the Defendant No. 2 and as such the suit is now only against the Hindusthan Commercial Bank Ltd. The Plaintiff's case in the plaint, so far as the Defendant No. 1 Hindusthan Commercial- Bank Ltd. is concerned, is, in substance, that by presentation of the bills in respect of various shares together with the relative share certificates and blank transfer deeds between May 15, 1951, and June 7, 1951, the Defendant bank induced and requested the Plaintiff to pay off and take, delivery of the said shares thereby representing to the Plaintiff and expressly and/or impliedly warranted that the said shares were good for delivery and the Plaintiff would enjoy quiet possession of the said shares and the Defendant No. 2 R.N. Ghosh had lawful right or title to the said shares. The Plaintiff acted on such representations and made payments in respect thereof to the Defendant No. 1, but subsequently it transpired that the said shares were stolen shares and the Plaintiff had to refund a total sum of Rs. 68,500-10-0 to the various buyers of the said stolen shares. The Plaintiff claimed the said sum paid as prices of the said shares from the Defendant bank alleging tortious, illegal, wrongful and fraudulent acts on the part of the Defendant bank and R.N. Ghosh whereby the Plaintiff had been deprived of the quiet possession and enjoyment of the said shares. It is to be noted that in the plaint the Plaintiff has made a claim against the Defendants jointly or severally' in para. 22 of the plaint and the decree asked for relief against both the Defendants in prayer (b) of the plaint. The Defendant bank denied the allegations in the plaint and the main contention of the Defendant bank is that they acted as a mere banker and relationship between R.N. Ghosh and the Defendant bank was that of a banker and customer, i.e. principal and agent, and as there was no privity of contract between the Plaintiff and the Defendant bank, there cannot be any liability or obligation to pay for any wrongful act of the Defendant No. 2, R.N. Ghosh. The Defendant bank denied any knowledge that the shares were stolen shares and that R.N. Ghosh had no title to those shares.