Punjab National Bank v. B.R Enterprises And Others

M.C Jain, J. (Chairman):— The Punjab National Bank has filed this appeal against the final order dated March 9, 2006, passed by the DRT-III, Delhi, in T.A No. 382 of 2002 (O.A No. 19 of 1997-DRT-II, Delhi).

2. The relevant facts may be stated shortly. The appellant-bank filed O.A in question against five defendants/respondents herein for the recovery of Rs. 15,57,525 with pendente lite and future interest at 17.34 per cent. per annum with quarterly rests along with costs. Respondent No. 1.defendant No. 1 was the sole proprietorship concern owned and controlled by respondent No. 2.defendant No. 2. Respondent No. 3.defendant No. 3 was the partnership firm consisting of respondents Nos. 4 and 5.defendants Nos. 4 and 5 as partners. The appellant herein—bank sought the relief of recovery against all the defendants.

3. Respondents Nos. 3, 4 and 5.defendants Nos. 3, 4 and 5 were having their current account No. 2131 with the bank. Respondent No. 2.defendant No. 2 as sole proprietor of respondent No. 1.defendant No. 1 approached the bank to open a current account. Respondents Nos. 4 and 5.defendants Nos. 4 and 5 who were having current account in the name of respondent No. 3.defendant No. 3 assured the bank that they knew respondent No. 2.defendant No. 2 very well for the last 10 years and they introduced the account opened by them (defendants Nos. 1 and 2). Acting upon their introduction of respondents Nos. 1 and 2.defendants Nos. 1 and 2, the bank allowed the current account No. 3082 to be opened by defendants Nos. 1 and 2. This account was opened in November, 1995. Within a few days of the opening of the account, respondent No. 1.defendant No. 1 through respondent No. 2.defendant No. 2 deposited three cheques of three different dates in the said current account for collection. The details of the same are as given below:

1. cheque No. 416131 dated November 11, 1995, for Rs. 2,70,000 drawn on State Bank of Patiala, Mohali, Punjab.

2. cheque No. 416135 dated November 24, 1995, for Rs. 4,50,693 drawn on State Bank of Patiala, Mohali, Punjab.

3. cheque No. 416140 dated November 4, 1995, for Rs. 5,40,896 drawn on State Bank of Patiala, Mohali, Punjab.

4. The said cheques were lodged by the appellant-bank under ODBC (outdoor bank collection) on November 12, 1995, November 28, 1995, and December 8, 1995, respectively. In response to the above ODBC, the bank received realisation advices on November 21, 1995, for Rs. 2,70,000, on December 8, 1995, for Rs. 4,50,693 and on December 22, 1995, for Rs. 5,40,896 purportedly issued by the branch office at Mohali. On the basis of the same, the said amounts were credited in the account No. 3082 of respondents Nos. 1 and 2.defendants Nos. 1 and 2. The credits were given on November 29, 1995, December 15, 1995 and January 6, 1996. The said amounts were duly withdrawn by respondent No. 2 as sole proprietor of respondent No. 1. After crediting the amount in the account of respondent No. 1.defendant No. 1 the bank took up the matter with the branch office at Mohali. The branch office at Mohali informed vide their letter dated January 16, 1996, that they neither received any ODBC nor issued any realisation advices and the advices which were received by the appellant-bank were fake ones. The matter was reported to the police authorities and the bank lodged FIR No. 39 of 1996 at P.S Model Town, about the cheating and fraud committed. By the time the fraud was detected, respondent No. 2.defendant No. 2 had already withdrawn a sum of Rs. 9,36,557 from the appellant-bank, as stated earlier, causing huge monetary loss to the bank.

5. At the hearing of the O.A, respondents Nos. 1 and 2.defendants Nos. 1 and 2 did not put in appearance and O.A proceeded ex parte against them. However, a joint written statement was filed by respondents Nos. 3 to 5.defendants Nos. 3 to 5. They resisted the O.A on diverse grounds inclusive of the O.A being barred by limitation and bad for mis-joinder of parties. Their main plank was that they had only introduced the account of defendants Nos. 1 and 2 and as introducers, they could not be held liable in case the principal account holder failed to pay any amount due to the bank. They were not guarantors. The transactions between the bank and defendants Nos. 1 and 2 had been done by themselves without their (defendants Nos. 3 to 5) consultation and without their asking. They had no concern with the liability of defendants Nos. 1 and 2.

6. The bank filed documentary evidence and three affidavits by way of evidence. In rebuttal, respondent No. 4.defendant No. 4 filed his affidavit without any documentary evidence. The Tribunal below held that the case had been proved against defendants Nos. 1 and 2.respondents Nos. 1 and 2, but with regard to respondents Nos. 3 to 5.defendants Nos. 3 to 5, it held that they were only introducers, and not the guarantors. As introducers they could not be said to have incurred any legal liability and no action could be taken against them if the new customer committed some fraud in relation to the transaction of his account. Thus, the claim against defendants Nos. 3 to 5.respondents Nos. 3 to 5 was dismissed.

7. Through this appeal, the bank has prayed for a decree against defendants Nos. 3 to 5 too. In appeal, respondents Nos. 3 to 5.defendants Nos. 3 to 5 were served. Their a/d cards were enclosed with the affidavit of service. But, substituted service through publication in Navbharat Times was made on respondents Nos. 1 and 2.defendants Nos. 1 and 2. However, none of them turned up to contest the appeal.

8. I have heard learned counsel for the appellant-bank and have considered the matter. I find myself in agreement with the view of the Tribunal below that no liability could be fastened on defendants Nos. 3 to 5.respondents Nos. 3 to 5. It should be pointed out that it was the own case of the bank that respondents Nos. 4 and 5.defendants Nos. 4 and 5 as partners of defendant No. 3.respondent No. 3 were only the introducers of the current account opened by defendant No. 1.respondent No. 1 through defendant No. 2.respondent No. 2. As introducers of the account opened by respondents Nos. 1 and 2.defendants Nos. 1 and 2, they could not be held liable for the act and conduct of the principal debtors.

9. The situation would have been otherwise, had they been guarantors also. They were not guarantors and for the business transacted by defendants Nos. 1 and 2.respondents Nos. 1 and 2 in relation to their current account opened with the bank, they alone could be held liable. Having regard to section 72 of the Indian Contract Act also, only respondents Nos. 1 and 2.defendants Nos. 1 and 2 could be liable. The fact that they committed cheating or fraud with the bank could not render the introducers to be liable. To say shortly, the amount in question could not be deemed to be covered under the definition of “debt” contained in section 2(g) of the RDDBFI Act so far as respondents Nos. 3 to 5 (introducers) were concerned. Therefore, the impugned order passed by the Tribunal below does not call for interference and has to be affirmed as such.

10. The appeal is dismissed. No costs.

11. Copy of this order be furnished to the appellant.