The central legal point established is the liability of defendants in cases of non-gratuitous benefit and mistaken payments under Section 70 and 72 of the Indian Contract Act, 1872.

VALMIKI J. MEHTA, J.

1. Plaintiff/bank namely Punjab National Bank has filed the present suit for recovery of Rs.1,89,66,123/-along with interest against a total of ten defendants. Suit amount is claimed on account of the fraud played upon the plaintiff/bank whereby a total amount of Rs. 1.17 crores through purported Telegraphic Transfers was credited to the bank account of the defendant no.2 in the name of defendant no.1 and thereafter such amount being fraudulently withdrawn by defendant no. 2 or used by him for payments made to defendant nos. 3 and 5 to 7. The entire suit amount is claimed from the defendant nos. 1, 2 and 4 and essentially defendant no. 2/Sh. Vijay Dixit who is the sole proprietor of defendant nos. 1 and 4. The entire amount of the suit is also claimed from the defendant nos. 8 to 10 because whereas defendant nos. 8 and 9 were employees of the plaintiff/bank at its branch at Neemuch, Madhya Pradesh and defendant no. 10 who is said to be the main conspirator. As against defendant no. 5 a sum of Rs.1,00,000/-is claimed, with a sum of Rs.15,000/-being claimed by defendant no. 6 and a sum of Rs.3919/-being claimed against the defendant no. 7.

2. The facts of the case are that plaintiff/bank pleads that it has been subjected to a fraud committed by defendant no. 2 in collusion with defendant nos. 8, 9 and 10. The case of the plaintiff/bank is that two telegraphic transfers were allegedly and falsely got issued by the defendant no. 8 from the Neemuch branch of the plaintiff/bank in Madhya Pradesh in favour of defendant no.2 who was holding account no. 3217 with the Lajpat Nagar branch of the plaintiff/bank at New Delhi. Two telegraphic transfers were received by the plaintiff/bank on 22.8.1997 for Rs.92,00,000/-and on 23.10.1997 for Rs.25,00,000/-, and amounts thereof credited in the current account of defendant no.2 in the name of defendant no.1, and which telegraphic transfers were subsequently found to be a fraud committed upon the plaintiff/bank because the Neemuch, Madhya Pradesh branch of the plaintiff/bank had never issued these two telegraphic transfers. The amounts of the two telegraphic transfers were credited to the current account of defendant no. 2 bearing no. 3217 at the Lajpat Nagar branch, New Delhi. Defendant no. 2, with defendant nos. 1 and 4 being the sole proprietorship concerns of defendant no. 2, are pleaded to have received illegal benefit of these amounts as various amounts were withdrawn or paid by the defendant no.2 to his own account in the name of defendant nos. 1 and 4 and payments made to the accounts of defendant nos. 3 and 5 to 7. Essentially therefore plaintiff/bank pleads a fraud and seeks the benefit of the provisions of Section 70 and 72 of the Indian Contract Act, 1872, for passing of a money decree against the defendants in the suit.

3. (i) Out of the total of ten defendants in the suit the suit was initially contested by the defendant nos. 1 to 4 and defendant nos. 6 and 8. Defendant nos. 1, 2 and 4 filed a joint written statement. Written statement was also filed by defendant no. 3. Written statement was also filed by defendant nos. 6 and 8. No written statement was filed by defendant nos. 5, 7, 9 and 10.

(ii) Though the aforesaid defendants who had filed written statement originally contested the suit, however, neither they have cross-examined the witnesses of the plaintiff/bank and nor have also not led any evidence. Defendants have been proceeded ex-parte in terms of the specific order of a Learned Single Judge of this Court dated 23.11.2015. By an earlier order dated 19.9.2005 right of the defendant nos. 5, 7, 9 and 10 to file written statement had been closed.

4. Plaintiff/bank has filed affidavit by way of evidence firstly of its witness Sh. Amit Kumar who was working as a Senior Manager at the Neemuch, Madhya Pradesh branch of the plaintiff/bank and who deposed as PW-1. He has deposed on the lines of the plaint and has exhibited various documents being the accou