IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, CHANDER SHEKHAR, JJ.
M/s Adya Global Export Inc. & Anr. - Petitioners
Versus
Canara Bank - Respondent
W.P. (C) No. 6778 of 2016 & C.M. No. 27868 of 2016
Decided On : 16-10-2018
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 21 - Negotiable Instruments Act, 1881 - Section 131 - Altered Cheque - Payment by bank - Subsequent knowledge of alteration - Refund of amount - Scope of - Cheque was not objected - Credit was made - Payment was credited to the account of the petitioners - Cheque was altered and this had come to light and knowledge after the Bank of America had made claim - Respondent-bank was not negligent when they had credited the amount - Collecting bank has made a payment to its customer who deposited the tampered cheque does not raise an estoppel against the paying bank if later on it is found that the cheque is forged - Respondent-bank was not called upon to be overtly suspicious - Standard of care expected from a banker in collecting the cheque did not require him to subject the cheque to a minute and microscopic examination - Collecting bank has its remedies against its clients for indemnification by asking them to return the money - Petitioners have remedies against the drawer of the cheque or her customer to recover the amount from them as per law - There is no infirmity in the impugned order - Petition is dismissed.
Chander Shekhar, J.
1. This writ petition assails the order dated 09.10.2014 passed by the Debts Recovery Appellate Tribunal, Delhi (‘Appellate Tribunal’, for short) in Appeal No.185/2014 arising from O.A. No.08/2010 (DRT-III), Delhi.
2. Briefly stated, case of the petitioners is that the petitioner No.1, ‘M/s Adya Global Export Inc.’, is proprietorship concern of petitioner No.2, Mrs. Sweety Kumari and was engaged in the business of exporting basmati rice.
3. On 12.10.2007, the petitioner No.2 had opened a current account with Canara Bank, the respondent-bank, at 433, Behra Enclave, Paschim Vihar branch.
4. The petitioners, on 31.10.2008, had deposited with the respondent-bank Cheque No.375380 dated 24.10.2008 for US$ 62,400 issued by the Jacques Admiralty Law Firm, P.C. 645 Griswold, Swite 1370, Detroit, Michigan, USA and drawn on Bank of America, Troy, Michigan, USA. On 08.12.2008, Rs.31,45,696/- was credited in the current account of the petitioners with the respondent-bank.
5. Petitioners state and claim that the aforesaid cheque was for export of rice to a party based in Uganda. Satisfied with credit of Rs.31,45,696/-, the petitioners had exported the consignment of rice to the customer in Uganda on 08.01.2009.
6. Subsequently, on 25.08.2009, the petitioners were served with the legal notice issued on behalf of the respondent-bank to remit/refund Rs.31,45,696/- as they had been intimated by their Foreign Department that the corresponding/collecting bank in USA vide letter dated 05.08.2009 had informed that the cheque was "Altered Cheque". Accordingly, payment of Rs.31,45,696/- was reversed. Petitioners had contested the notice stating and highlighting the above facts and also asserted that Foreign Inward Remittance Certificate (“FIRC”) had been issued on 27.02.2009 by the respondent-bank.
7. On 31.10.2009, a criminal complaint was lodged by the respondent-bank against the petitioners with the Economic Offence Wing, New Delhi stating that the aforesaid cheque was returned as "Altered Cheque" and that earlier another cheque had been returned being a "Counterfeit Cheque".
8. On 31.12.2009, the respondent-bank filed Original Application No.08/2010 before the Debt Recovery Tribunal-III, Delhi (‘Tribunal’ in short) for recovery of Rs.31,95,860/- with pendente lite and future interest against the petitioners. Original Application was allowed vide the order dated 10.05.2013 by the Tribunal directing the petitioners to pay Rs.31,45,696/- to the respondent-bank within a period of 30 days with simple interest @ 14% p.a. from the date of filing of the Original Application till its realization.
9. Aggrieved, the petitioners preferred Appeal No.185/2014 before the Appellate Tribunal along with an application under Section 21 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 seeking waiver of pre-deposit of 75% of the awarded amount.
10. On 21.03.2014, the Appellate Tribunal had directed the petitioners to pre-deposit 40% of the amount awarded by the Tribunal. Aggrieved, petitioners had filed WP(C) No.2886/2014 before this High Court. Without commenting on merits, a Division Bench of this Court vide order dated 09.05.2014 had set aside the direction to pre-deposit 40%, with the direction to the Appellate Tribunal to hear the appeal on merit.
11. The Appellate Tribunal heard the Appeal No.185/2014 on merits and vide the impugned order has dismissed the appeal.
12. The petitioners had challenged the impugned order by filing Writ Petition No. 1429/2015 before this Court along with an application for stay of proceeding before the Recovery Officer. By the order dated 08.04.2015, proceedings pending before the Recovery Officer were stayed. However, vide the order dated 29.02.2016, the writ petition was withdrawn due to deficiency in pleadings with liberty to file a fresh writ petition.
13. It is in these facts that the petitioners have preferred the present writ petition. We have heard learned counsel for the parties and ha
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