Valmiki J. Mehta, J.

1. Arguments were concluded on 10.1.2011 and parties were directed to file written synopsis which have been filed. I am, therefore, proceeding to pass the judgment.

2. By the present appeal under Section 96 of the Code of Civil Procedure, 1908 (Code of Civil Procedure), the Appellant bank, which is the successor in interest of the erstwhile Lakshmi Commercial Bank Ltd. challenges the impugned judgment and decree dated 27.9.1994 passed by the trial Court whereby the suit of the Appellant bank for recovery was dismissed.

3. The facts of the case are that the Respondent No. 1 was a customer of the erstwhile Lakshmi Commercial Bank. Respondent No. 1 was a seller of goods. It sold the goods to its customer in Palwal. The goods were given for transportation to the Respondent No. 2/M/s. Central Transport Organization. The Respondent No. 1 thereafter prepared a bill of exchange/hundi drawn on the customer and along with the transportation receipt presented the documents to the Appellant ana sought discounting of the hundi from the bank. I may note that reference in this judgment to the bank would be either to the present Appellant M/s. Canara Bank or to its predecessor-in-interest M/s. Lakshmi Commercial Bank as per context. The bank discounted hundi on 19.11.1983 and credited an amount of Rs. 52,704.96p to the account of the Respondent No. 1. At the time of discounting, the bank took into its custody the transportation receipt and sent the documents being the hundi and the transportation receipt for collection to the customer. In the meanwhile, the Respondent No. 1 withdrew the amount credited in its account on account of discounting of the hundi by the bank. The customer of the Respondent No. 1 at Palwal failed to make payment under the hundi and accordingly, the documents came back to the bank. On the bank receiving intimation of the default on the part of the customer of the Respondent No. 1 in making payment of the hundi, the bank informed the Respondent No. 1 and the letter so informing the Respondent No. 1 is a letter dated 14.11.1984. Respondent No. 1 had replied to this letter of the bank by its reply dated 21.11.1984 (Ex. P-8A) and which reads as under:

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Reference your letter No, BSN/APD/112/909/84 dated 14.11.84.

We are taking necessary action in making the payments to you shortly for the documents received back unpaid.

Thanking you, we are

Yours faithfully,

For R.K. ENGINEERING COMPANY (P) LTD.,

MANAGING DIRECTOR.

It may be noted that there are certain missing factual aspects and documentary aspects because Lakshmi Commercial Bank was thereafter merged with Canara Bank, and certain records are stated to be untraceable. The fact of the matter however is that Ex. P-8A shows that the Respondent No. 1/customer of the bank was aware and was put to notice that the hundi was dishonoured and therefore monies which were credited in the account of Respondent No. 1 by the bank had to be refunded. The Respondent No. 1 in Ex. P-8A clearly stated that it was taking steps to make payment to the bank.

4. Disputes and differences arose on account of failure of the Respondent No. 1 to make the payment to the bank along with interest and consequently, a suit was filed by the Appellant bank on 11.11.1986 and which has been dismissed by the impugned judgment and decree dated 27.9.1994.

5. The trial Court has dismissed the suit by holding that the bank became the owner of the goods when it received the transportation receipt in which the bank was shown as a consignee along with the hundi. The trial Court therefore, arrived at a finding that it was the duty of the bank as a owner of the goods thereafter to sell the goods for recovering its amount and bank was not entitled to, file a suit against the Respondent No. 1. Reliance was placed by the trial Court on a Division Bench judgment of the Dena Bank v. The Madhya Pradesh National Textiles Corporation Ltd. AIR 1982 MP 85. I may note that even the Appellant also relied on