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2005(1) Bankmann 378
BOMBAY HIGH COURT
A.P. Lavande, J.
Pandurang — Appellant
versus
Akola District Central Co-Operative Bank Ltd. and another — Respondents
Second Appeal No. 98 of 1992
Decided on 13-12-2004
Counsel for the Parties:
For the Appellant:Mr. C.S. Kaptan, Advocate
For the Respondent:M.N. Ingley, Advocate.
IMPORTANT POINT
In an action for damages by account-holder, proof of special damages is not required, if the bank wrongfully dishonoured the cheque.
Headnote:Negotiable Instruments Act, 1881—Section 31—Wrongful dishonour of cheque—Liability of drawee of cheque—Claim for damages—Proof of special loss—In an action for damages by account-holder proof of special loss, not required—If the bank wrongfully dishonoured the cheque, account holder entitled to damage without proof of special loss or damages.
Facts of the case:
A)Appellant – herein an account-holder of respondent-bank filed a suit for recovery of wrongfully debited amount from his account and also for damages. Aggrieved by the debit entry of Rs. 610/- by the ‘bank’ at the instance of 3rd party (due to which a cheque issued by the appellant was dishonoured), the appellant filed a suit claiming damages of Rs. 5,000/-. The Trial Court decreed the suit by granting Rs. 2,500/- as damages. Against the said decree, respondent-bank preferred an appeal in which the plaintiff filed cross-objections. The appellate court allowed the appeal by dismissing the cross-objections. Aggrieved by the same, plaintiff filed the present appeal.
B)In the present case, it is the case of the bank that according to the Federation an amount of Rs.
610/- was wrongfully paid to the appellant which was credited by the appellant in his account in the bank. The court held that the bank was not entitled to make debit entry into the account of the appellant without obtaining his consent. Even assuming that Rs. 610/- was wrongfully paid to appellant, still bank could not have unilaterally debited the amount. To that extent, the impugned judgment of First Appellate Court, set-aside and decree of trial court restored.
Result: Appeal partly allowed
A.P. Lavande, J.—Heard Mr. C. S. Kaptan, learned counsel for the appellant and Mr. M. N. Ingley, learned counsel for the respondent.
2. By this appeal, the appellant takes exception to the Decree dated 23-8-1991 passed by the IIIrd Additional District Judge, Akola in Regular Civil Appeal No. 1/1988 allowing the appeal filed by the Respondent and dismissing the cross-objection filed by the present appellant.
3. The appellant is the original plaintiff in Regular Civil Suit No; 184/77 filed against the respondents in the Court of Civil Judge, Jr. Dn., Akot. The plaintiff filed the suit against the respondent -defendant for mandatory injunction, recovery of the amount, illegally debited and damages.
4. Briefly, the facts which are relevant for the purpose of disposal of this appeal are as follows:
The plaintiff was having Savings Bank Account No.13721 with Akola District Central Co-operative Bank Ltd., Akola. According to the plaintiff, on 17-1-1977, the balance amount in his account was Rs. 12,758.60/-. On 21-1-1977, he withdrew the amount of Rs. 11,190/- from his account thereby leaving balance Rs.
1568/-. On 21-1-1977, he gave a cheque of Rs. 1500/- in favour of the Urban Co-operative Bank Ltd. Akola. On 25-1-1977, the Manager of the Urban Co-operative Bank along with the memo dated 22-1-1977 received from the respondent No.2, returned the cheque issued by the plaintiff informing him that the cheque was returned unpaid. The memo dated 22-1-1977 mentions the reason for return of cheque as “refer to drawer”. Thereafter, the plaintiff issued communication dated
27-1-1977 to respondent No. 2. However, respondent No. 2/defendant No.2 did not give any reply. Thereafter, the Notice under Section 161 of the Maharasntra Co-operative Societies Act, 1960 was sent to the District Deputy Registrar, Co-operative Societies, Akola as required under law. Thereafter, on 3-2-1977, the plaintiff received a letter dated 27-1-1977 from defendant No. 2, whereby the plaintiff was informed about the debit entry of Rs. 610/- made in his account at the instance of Sub Zonal Manager of the Maharashtra State Co-operative Federation and Manager of S.S.P. Society Ltd. Akot. Thereafter, the plaintiff immediately replied denying all the allegations and objecting to the debit entry of Rs. 610/-. According to the plaintiff, the said debit entry was made without consent of plaintiff and was against the Banking Rules and Regulations. Thereafter the plaintiff/appellant filed the suit against the respondent/defendant claiming reliefs against the defendant to cancel illegal debit entry of Rs. 610/- made in the account or the plaintiff and further to re-credit the entry of Rs. 610/- in his Savings Bank Account and also further directing the defendant to release the payment of debit entry of Rs. 610/- in plaintiff’s account. The plaintiff also claimed damages of Rs. 5,000/- so also interest on the amount of Rs. 610/- which was illegally debited from his account. The suit was resisted by filing the written statement by the respondent and upon the pleadings of the parties issues were framed. Both the parties led evidence and after appreciating the evidence led by both the parties, the trial Court partly decreed the suit allowing the claim made by the plaintiff except the claim for damages which was partly allowed to the extent of Rs. 2500/-. The respondent preferred the above mentioned appeal to the District Court which was made over to the Third Additional District Judge, Akola. In the said appeal, the present appellant filed cross-objection claiming damages to the tune of Rs. 5,000/- since the trial Court has awarded damages to the extent of Rs. 2,500/- only. The lower Appellate Court after hearing both sides allowed the appeal filed by the respondent herein and dismissed the cross-objection filed by the present appellant holding that the appellant was not entitled to Rs. 2,500/- as damages. Aggrieved by the Judgment and decree of the lower Appellate C
