Back
CALCUTTA HIGH COURT
Debangsu Basak, J.
Shree Shankar Saw Mill (P) Ltd.
and Anr. —Petitioners
versus
United Bank of India and Ors. —Respondents
W.P. No.351 of 2017
Decided on 6.12.2017
For the Petitioners:Mr. Rudraman Bhattacharyya and Mr. Debanjan Mukherjee, Mr. Asish Chiranewala, Advocates
For the Respondents:Mr. Krishnaraj Thaker, Mr. Varun Kedia and Mr. Kumardeep Majumder, Advocates
IMPORTANT POINT
To fasten liability in criminal law, degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law.
Headnote:Negotiable Instruments Act, 1881—Sections 45A and 77—Negligence—Liability of banker—To fasten liability in criminal law, degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law—Conduct of Bank does not allow an inference to be drawn that it has acted negligently—It has taken due and reasonable case for the purpose of collecting proceeds of several cheques that it had received from first petitioner for collection—Bank has no control over postal authorities—Writ Court need not enter into arena as to what steps petitioners could have taken for realizing cheques or proceeds thereof from Bank or from that matter any of persons that may be liable for proceeds of cheques—Claim on account of negligence cannot be sustained against Bank—Writ petition dismissed. (Paras 12 to 15)
Result: Writ Petition dismissed.
Debangsu Basak, J.—The petitioners have sought a direction upon the respondent no. 2 to credit the account of the first petitioner with a sum of Rs.60 Lakhs being the value of 11 several cheques.
2. Learned Counsel for the petitioners has submitted that, the first petitioner has an account with the respondent no. 2. The first petitioner had deposited 11 several cheques of one L.B. Enterprises drawn on Gandhidham Co-operative Bank of Kutch, Gujarat is aggregating to a sum of Rs.60 Lakhs with the respondent no. 2 for collection. Neither the proceeds of any of these 11 cheques were deposited in the accounts of the first petitioner nor any of those cheques returned to the petitioners by the bank. Five cheques were deposited by the first petitioner on May 6, 2015. Six cheques were deposited on May 16, 2015. By a letter dated June 10, 2015, the petitioners had requested the respondent no. 2 to credit the proceeds of these cheques. The petitioners, however, received an e-mail from the respondent no. 6 informing the petitioners that, the cheques were returned and sent to the respondent no. 2 by Speed Post on June 3, 2015. The respondent no. 2 was immediately requested to hand over the cheques physically to the petitioners. However, the cheques were not made over to the petitioners. The petitioners were ultimately informed that, the cheques were lost. The petitioners had approached the Banking Ombudsman by a writing dated June 29, 2016, the Banking Ombudsman had refused to exercise its jurisdiction. Since the complaint to the Banking Ombudsman was closed under clause 13(c) of the Banking Ombudsman Scheme, 2006, the same is not appealable. The respondent no. 2 having acted negligently, the petitioners are entitled to the proceeds of the 11 several cheques from the respondent no.2.
3. Learned Advocate for the petitioners has relied upon a circular dated November 4, 2011 issued by the Reserve Bank of India to All Scheduled Commercial Banks. Referring to such circular he has submitted that, the period of validity of the cheques were reduced from 6 months to 3 months by such circular. He has submitted that, the respondent no. 2 by its action has denied the petitioners’ valuable right of approaching the Court under the Negotiable Instruments Act, 1881. It had allowed a period in excess of 3 months to elapse from the date of presentation of the cheques till the information as to the loss of the cheques being supplied. The petitioners had received an intimation on August 17, 2015 by which time a period of 6 months had elapsed. Moreover, the relationship between the first petitioner and the respondent no. 2 is that of a bailee and a bailor. The respondent no. 2 is obliged to take due care of the cheques presented to it for encashment by the first petitioner. The cheques were duly received by the respondent no. 2 from the first petitioner. After receiving all cheques for collection, it is the duty of the respondent no. 2 to ensure that, the proceeds of the cheques are collected and such proceeds are deposited in the bank account of the first petitioner, in accordance with law. The respondent no. 2 has failed to discharge its duty as a bailee. It is obliged to compensate the first petitioner with the value of the 11 several cheques, if nothing else. The respondent no. 2 is liable under Section 77 of the Negotiable Instruments Act, 1881.
4. Learned Counsel appearing for the respondent no. 2 has submitted that, there was no negligence on the part of the respondent no. 2 in the whole transaction. The cheques, after being received from the first petitioner, were sent to the Kandla Branch of the United Bank of India for payment. The drawer bank had intimated the Kandla Branch of UBI that, the account on which the cheques were drawn was closed before the date of presentation of the cheques. The cheques, therefore, stood dishonoured upon presentation. The cheques, thereafter, were physically dispatched by the Kandla Branch of UBI to the responde
