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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7552 OF 2002

Britannia Industries Limited

… Appellant

Versus

Punjab National Bank & Ors.

… Respondents

J U D G M E N T

Aftab Alam,J.

1.

This appeal, by special leave, is directed against the judgment and

decree dated April 3, 2001 passed by a Division Bench of the Calcutta High

Court in Appeal No.114/1991. By the impugned judgment, the Division

Bench allowed the appeal preferred by Punjab National Bank (respondent

no. 1 before this Court), set aside the judgment and decree dated December

12, 1990, passed by a learned single judge of the High Court in Suit No.

780/1983 filed by the appellant-plaintiff under Order XXXVII of the Code

of Civil Procedure.

2.

The claim of the appellant-plaintiff is based on a purported bill of

exchange dated February 15, 1983 for a sum of Rs. 1 crore only. The bill of

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exchange was drawn by two persons namely, Raghunath Dutta and Amit

Dutta (respondent nos. 3 & 4 respectively) as partners in the firm

Metropolitan Construction (respondent no. 2). The bill of exchange was

accepted by M/s Lgee Enterprises (not made a party to the suit) and was

further shown to be accepted by Punjab National Bank (respondent no. 1). It

was then shown to be endorsed by respondent no. 2 in favour of the

appellant-plaintiff and was delivered to it, who, thus, claims to have become

the endorsee and the holder of the bill of exchange in question. The bill of

exchange was presented for payment, but respondent no. 1 refused to make

payment, thereby dishonoring the bill.

3.

The appellant-plaintiff filed the suit, being Suit No. 780/1983, for

recovery of the amount of the bill of exchange along with statutory interest.

4.

From the averments made in the plaint it is clear that the bill of

exchange is drawn by respondent nos. 3 & 4 (defendant nos. 3 & 4 in the

suit) as partners of the firm, respondent no. 2 (defendant no. 2 in the suit).

Admittedly, suit summons were not served on defendant nos. 2, 3 & 4 and

they never contested the suit at any stage. The acceptor of the bill of

exchange is M/s Lgee Enterprise which was not impleaded in the suit on the

facile plea that, based in Mumbai, it was beyond the jurisdiction of the

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Calcutta High Court. The contest was, therefore, directly with PNB which

was described in the plaint as the “acceptor” of the bill.

5.

PNB (respondent no.1) completely denied the case of the appellant-

plaintiff made out in the plaint and was granted leave to defend the suit in

terms of rule 3(5) of Order XXXVII.

6.

In the written statement it was stated on behalf of PNB that the bill of

exchange was never accepted by it; that A.B. Das, who was the Branch

Manager of PNB’s Zakaria Street Branch, Calcutta and who was shown to

have “accepted” the bill of exchange was not authorized to accept any bill of

exchange on behalf of the Bank. In any event, the “co-acceptance” of the bill

of exchange by A.B. Das in Bombay was not in discharge of his official duty

as Branch Manager of a branch in Calcutta. The co-acceptance of the bill of

exchange shown to have been made by A.B. Das was fraudulent and not

binding on the Bank.

7.

It was also stated in paragraph 10(f) of the written statement that A.B.

Das was arrested by the West Bengal Bureau of Investigation relating to his

involvement in connection with M/s Sanchita Investment and then on

November 8, 1983, A.B. Das was again arrested by C.B.I. and various

investigations were pending against A.B. Das.

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8.

It was also stated in the written statement that the Metropolitan

Construction was a non-existent firm and never had any place of business at

A-18 Kings Acres Plot No. 75, Saraswati Road, Santacruz (West) at

Bombay – 400054 or at 29, Creek Lane, Calcutta – 700014 (the addresses

given in the bill of exchange). The telephone numbe