RFA Nos. 524/2004 & 54/2005

Page 1 of 13

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%

RFA 524/2004

+

Date of Decision: 21^st March, 2011

#

ORIENTAL BANK OF COMMERCE

...Appellant

! Through:

Mr. H.C. Kundra &

Mr. Bal Ram Singh, Advs.

Versus

$

PAWAN KUMAR AGGARWAL & ANR. ...Respondents

Through: Mr. Rajesh Katyal, Adv. for R-1

Mr. S.L. Gupta and

Mr. Ram Gupta, Advs. for R-2

AND

%

RFA 54/2005

#

STATE BANK OF SAURASHTRA

...Appellant

! Through:

Mr. S.L. Gupta &

Mr. Ram Gupta, Advs.

Versus

$

PAWAN KUMAR & ANR.

...Respondents

Through: Mr. Rajesh Katyal, Adv. for R-1

Mr. H.C. Kundra and Mr. Bal

Ram Singh, Advs. for R-2

CORAM:

*

HON'BLE MR. JUSTICE P.K.BHASIN

1.

Whether Reporters of local papers may be allowed to see the

judgment? (No)

2.

To be referred to the Reporter or not? (No)

3.

Whether the judgment should be reported in the digest? (No)

2011:DHC:1653

RFA Nos. 524/2004 & 54/2005

Page 2 of 13

JUDGMENT

P.K.BHASIN, J:

Two nationalized banks have filed separate appeals feeling

aggrieved by the judgment and decree dated 02.07.2004 passed by the

Court of Additional District Judge in a suit filed against them by

respondent no.1-plaintiff whereby a joint and several decree for a sum

of Rs.2,62,036/- alongwith interest thereon @ 9 % p.a. from the

date of filing of the suit till the date of the decree and @ 5% p.a. from

the date of the decree till realization in full was passed against both of

them. Though both the banks had filed separate appeals but the same

were heard analogously and so are being disposed of also together by

this common judgment.

2. The case of the appellant-plaintiff(who shall hereinafter be

referred to as „theplaintiff‟) was that his proprietorship firm by the

name of M/s Bansal Industries had supplied certain goods to The

National Small Industries Corporation Ltd.,a Government of India

Enterprise(hereinafter to be referred to as „NSIC‟) and towards the

payment of price of those goods NSIC had issued an account payee

cheque no. 508735 dated 17/0498 for Rs.2,62,036/-(hereinafter to be

referred as „the cheque in dispute‟) and that cheque was drawn on State

Bank of Saurashtra(Nehru Place branch, New Delhi) which was

2011:DHC:1653

RFA Nos. 524/2004 & 54/2005

Page 3 of 13

impleaded in the suit as defendant no.2 and hereinafter also shall be

referred to as „defendant no.2‟. The plaintiff was maintaining a current

account No. 2371 in the Azadpur branch of Oriental Bank of

Commerce, which bank was impleaded in the suit as defendant no.1

and shall hereinafter also be referred to as „defendant no.1‟. The

plaintiff had deposited the cheque in dispute with the Azadpur branch

of defendant no. 1 on 18/4/98 for collection of its proceeds from

defendant no.2 bank. Thereafter when he enquired about the realization

of the said cheque from the defendant no.1 on 22/04/98 the concerned

officer informed him that his cheque had not been received back and

he was also told by the same officer that the cheque had been

misplaced. The plaintiff became suspicious and then he went to the

office of NSIC on 22/04/98 itself for issuance of „stop payment‟

instructions to defendant no.2 but he was informed that the payment of

the cheque in dispute had already been debited to its account on

21/4/98. On 30/4/98 defendant no.1 informed him that the cheque in

dispute had been got encashed fraudulently by someone from defendant

no.2 bank. The plaintiff then lodged a complaint with the police on

05/05/98. Then the plaintiff served a joint demand notice dated 1/07/99

upon defendant no.1 as well as defendant no.2 through his advocate

and when he did not succeed in gett