HINDUSTHAN COMMERCIAL BANK LTD Vs. PROBODH KUMAR MITTER

JUDGEMENT

(1.) This is an appeal from the judgment and decree dated 19th April, 1971 passed by Roy Chowdhury, J. in a suit for damages for a sum of Rs. 68, 598/-.

(2.) The facts shortly are that the plaintiff respondent No. 1 (hereinafter called Mitter) was a dealer in stocks and Shares and was carrying on such business under the name and style of Sree Krishna & Co. in Calcutta. One R. N. Ghose alias R. K. Ghose, the respondent No. 2 herein, on or about 10th May, 1951 verbally agreed to sell and Mitter agreed to purchase several shares in various joint stock companies. The said shares were sold through the defendant No. 1 Hindusthan Commercial Bank Ltd., the appellant herein (hereinafter called the bank). The bank made out various bills representing the price of the shares sold to Mitter and asked Mitter for payment and then to take delivery of the shares. The bank delievered the said shares to Mitter between 15th May and 7th June, 1951. Mitter paid the amount of the said bills by an account payee cheque drawn in favour of the bank and took delivery of the said shares. Thereafter, between June and July, 1951, the said shares were seized by the police and criminal proceedings were started against the said R. N. Ghose the respondent No. 2 herein on the ground that the said shares were stolen properties. On 15th April, 1954, Ghose had been convicted.

(3.) From a careful reading of the plaint it appears that the plaintiff Mitter's main endeavour had been to make the bank liable in respect of this transaction. The main averments in the plaint are that the bank made out the bills representing the price of the shares sold to Mitter and invited and/or requested Mitter to pay for and then to take delivery of the said shares. The bank made over the bills with intent that Mitter would act upon the said bills and pay the price mentioned therein and take delivery of the shares. Mitter acted upon the same and paid the price by an account payee cheque drawn in favour of the bank and the bank gave delivery of the said shares. The bank by its act and conduct expressly and/or impliedly warranted and/or represented to Mitter that the delivery of the said shares was good delivery; that Mitter would have and enjoy quiet possession of the said shares; that Ghose had lawful right or title to the said shares; that the bank was competent to transfer such lawful right and title to the said shares to Mitter and that Mitter would be entitled to the said shares. Mitter acted upon such representation and warranty. It is further stated by Mitter that Ghose had no lawful right or title to the said shares which were stolen properties and had no right to sell the same and the bank was not competent to transfer any lawful right or title to the said shares to Mitter and to deal with them as it had done, It is further stated that the bank obtained payment of moneys on the basis that Mitter would be entitled to the said shares and would have and enjoy quiet possession thereof. Furthermore, the bank wrongfully obtained moneys from Mitter by making over the shares which were stolen properties and which the bank was not competent to deal with.