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Allahbad High Court
S.K.VERMA,RAJESHWARIPRASAD
Bishal Chand Jain - Appellant
Versus
Chattur Sen - Respondent
Decided On : 09/20/1966
NEGLIGENCE - Liability of Cashier-in-charge for loss of money - Agreement between Cashier-in-charge and Treasurer - Clause providing for liability of Cashier-in-charge for shortage or loss caused by any act of commission or neglect on the part of cash staff - Cashier-in-charge parting with duplicate key of cash box to Manager - Whether amounts to gross negligence - Whether Cashier-in-charge liable for loss of money.
Fact of the Case:
Plaintiff, the treasurer of Hindustan Commercial Bank, Agra Branch, appointed defendant no. 1 as cashier-in-charge. Defendants 2 to 4 stood sureties for defendant no. 1. Defendant no. 5 was an acting cashier-in-charge at Agra Branch before the plaintiff was appointed as treasurer. Defendant no. 8 was working as a cashier at the said branch. Defendant no. 9 was a surety for defendant no. 8. Plaintiff alleged that defendant no. 1 took leave from 27th to 31st December 1949, handed over charge to defendant no. 5 on the 24th December 1949, as the Bank was closed on 25th and 26th December 1949. The Manager of the Bank issued a cheque for Rs. 80,000/- on the Imperial Bank, Agra, on 28th December 1949 and sent defendant no. 8 to bring the money from Imperial Bank. Leaving Rs. 20,000/- with the Bank for adjustment the sum of Rs. 60,000/- was brought by defendant no. 8 from the Imperial Bank and was alleged to have been handed over to defendant no. 5. On the 28th December 1949, however, it was given out that the cash was short by Rs. 40,000/-. The Bank realised that sum of Rs. 40,000/- from the plaintiff, and, therefore, the plaintiff is entitled to get the same from members of the cash staff and their sureties, that is to say, from the defendants to this suit.
Finding of the Court:
The court held that defendant no. 1 was liable for the loss of money on the ground that he acted contrary to the standing instructions and practice by handing over the duplicate key of the cash box to the Manager, which amounted to gross negligence. The court also held that defendant no. 5 was liable as the money disappeared while it was in his lawful custody. The court further held that defendants 2 and 3 were not liable as they had stood sureties for defendant no. 1 only for his employment at Saharanpur and not for his employment at Agra.
Issues: 1. Whether defendant no. 1 was liable for the loss of money on the ground that he acted contrary to the standing instructions and practice by handing over the duplicate key of the cash box to the Manager? 2. Whether defendant no. 5 was liable as the money disappeared while it was in his lawful custody? 3. Whether defendants 2 and 3 were liable as they had stood sureties for defendant no. 1 only for his employment at Saharanpur and not for his employment at Agra?
Ratio Decidendi: 1. The court held that defendant no. 1 was liable for the loss of money on the ground that he acted contrary to the standing instructions and practice by handing over the duplicate key of the cash box to the Manager, which amounted to gross negligence. The court relied on the fact that defendant no. 1 had undertaken in the agreement to diligently, faithfully and without any reserve obey and observe all lawful orders and instructions issued by the Bank or the Treasurer in relation to the due discharge of his duties as cashier-in-charge. The court also relied on the fact that the duplicate key of the cash box was kept in the safe inside double lock and that defendant no. 1 could not have handed over the duplicate key to the Manager without the co-operation of the plaintiff. 2. The court held that defendant no. 5 was liable as the money disappeared while it was in his lawful custody. The court relied on the fact that defendant no. 5 was the acting cashier-in-charge at the time of the incident and that it was his duty to take sufficient precaution for the safe custody of the money. The court also relied on the fact that defendant no. 5 had left the cash box in the presence of the Manager without counting the money and without taking sufficient precaution for its safe custody. 3. The court held that defendants 2 and 3 were not liable as they had stood sureties for defendant no. 1 only for his employment at Saharanpur and not for his employment at Agra. The court relied on the fact that the security bonds executed by defendants 2 and 3 specifically stated that they were standing surety for defendant no. 1 for his employment at the Saharanpur branch of the Bank and that there was no evidence to suggest that they had agreed to stand surety for defendant no. 1 for his employment at Agra.
Final Decision: The appeal was partly allowed. The decree passed by the court below was set aside and a new decree was passed in favour of the plaintiff against defendants 1, 5 and 7. The plaintiff's claim against defendants 2, 3, 4 and 6 was dismissed.
R. PRASAD, J. :- This is a plaintiff's first appeal against the judgment and decree of Sri Mohammad Tufail Ahmad. I Civil Judge, Saharanpur, dated 5th July 1954 in Original Suit No. 109 of 1950. This first appeal was connected with another First Appeal No. 298 of 1954, which was filed by one of the defendants from the same decree. That first appeal, however, is now no more before us inasmuch as the appellants of that appeal entered into a compromise with the plaintiffs on the basis of which, the appeal was dismissed. The only appeal which is now before us is First Appeal No. 397 of 1954.
2. Pandit Gopi Nath Kunzru, learned counsel for the plaintiff-appellant has argued the appeal before us on behalf of the plaintiff-appellant.
3. Before we deal with the appeal, it is necessary to dispose of a preliminary objection raised by the learned counsel for the appellant himself, to the effect, that this Court is not properly constituted and that the appeal cannot be heard. The two pronged arguments advanced by Pandit Gopi Nath Kunzru , learned counsel for the appellant, is that when the office of Chief Justice of this Court fell vacant as a result of the elevation of Hon'ble Mr. Justice V. Bhargavn, the Chief Justice of this Court, to the bench of the Supreme Court, Hon'ble Nasirullah Beg, J., the senior most Judge of this Court was appointed acting Chief Justice of this Court, but as oath of office has not been taken by him, this Court cannot be deemed to be properly consistuted. In the alternative, it was urged that if the appointment of Hon'ble Nasirullah Beg, J., is not to the office of Chief Justice of this Court, then there is no Chief Justice of this Court at present, and for that reason, this Court is not properly constituted.
4. As a result of his elevation to the Supreme Court, Hon'ble Mr. Justice V. Bhargava took oath of that office on the 8th August 1966, and from that date the office of Chief Justice of this Court fell vacant. On the same date from the newspaper, it appeared that a notification has been made under Article 223 of the Constitution of India to the effect that the duties of the office of Chief Justice of this Court would be performed by Hon'ble Nasirullah Beg, J., the senior most Judge of this Court. Article 223 of the Constitution reads as follows :
"When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise unable to perform the duties of his office, the duties of the office shall be performed by such one or the other Judges of the Court as the President may appoint for the purpose."
The marginal note of the Article consists of the following words :-
"Appointment of acting Chief Justice."
5. The notification referred to above uses the language used in Article 223 of the Constitution of India and the appointment made is for the purposes of performance of the duties of the office of Chief Justice of this Court. It has been urged that the exercise of powers under Article 223 of the Constitution results in an appointment to the office of Chief Justice. Reliance was placed on the marginal note of the Article also, to show that it is a case of appointment of Chief Justice.
6. Our attention was also invited to Article 224 Clause (2) and it was urged that the appointment made under Article 223 results into the appointment of a Chief Justice, though temporarily. Clause (2) of Article 224 provides :
"When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties."
7. We are, however, of the view that Article 223 of the Constitution does not contemplate the appointment of a Chief Justice of a High Court or an appointment to the office of Chief Justice of a High Court. In spite of such
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