IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.1095 of 2005
Date of Decision: 25.2.2009
Union Bank of India.
....... Appellant through Shri
Harish Chander Gupta,
Advocate.
Versus
Rupinder Jeet Singh.
....... Respondent through Shri
B.S.Bedi, Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against the judgment
and decree dated 16.12.2004 passed by the District Judge, Kurukshetra
(hereinafter described as `the First Appellate Court’) whereby the judgment
and decree dated 28.7.2004 of the Additional Civil Judge (Senior Division),
Pehowa (referred to hereinafter as `the trial Court’) were set aside, the
appeal of the plaintiff-respondent was accepted and his suit was decreed
against the defendant-appellant.
The respondent filed a suit for recovery of Rs.1,30,000/- along
with pendente lite and future interest at the rate of 12% per annum, inter-
alia, pleading that on 3.2.1997, an amount of Rs.96375/- was deposited by
him with the appellant for a period of six months; that the said amount was
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to carry interest at the rate of 10% per annum; that a deposit reinvestment
certificate no.9017288 was issued on behalf of the appellant duly signed by
its Branch Manager and Accountant, containing the rate of interest and the
amount payable on due date, i.e., Rs.1,01,252/-; that when the respondent
approached the appellant-bank for payment of the amount due, its official
refused to pay the maturity amount on false pretext; that the respondent
served a notice dated 15.12.1999 to which reply dated 10.1.2000 was sent
by the appellant and the payment of the aforesaid certificate was illegally
withheld.
The appellant appeared and filed written statement resisting the
claim of the respondent. It was pleaded that no amount was deposited by the
respondent on 3.2.1997 and that an amount of Rs.51783/- was deposited by
him on 29.8.1991 vide Deposit Re-investigation Certificate No.436451,
which was payable on 3.2.1997 and the maturity amount was Rs.96375/-.
This was again renewed on that date up to 7.12.1998 and that the
respondent approached the appellant on 21.8.1997 and requested for
issuance of a duplicate certificate on the plea that the original one had been
lost. It was averred that duplicate certificate no. 9017150 was issued,
whereas the original bore no.4364451. However, inadvertently it was not
mentioned thereon that it was duplicate re-investment certificate. It was
further averred that the respondent had ultimately got full payment on
7.12.1998 against the original receipt and and he had given an undertaking
to return the duplicate certificate and, therefore, nothing was due to him.
The appellant stated that due to inadvertence, the duplicate certificate issued
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on 21.8.1997 was renewed up to 7.1.2000. A notice was also stated to have
been issued to the respondent on 4.12.1999 for return of the duplicate
certificate but he did not do so.
Both the parties went to trial on the following issues:-
1. Whether the plaintiff has deposited the amount of Rs.96375/-
with the defendant on 3.2.1997, if it is proved whether
plaintiff is entitled to recover this amount along with interest
as alleged?OPP
2. Whether the plaintiff has got the FDR in question by playing
fraud as alleged by the defendant?OPD
3. Whether the suit of the plaintiff is not maintainable in the
present form?OPD
4. Whether this court has got no jurisdiction to entertain and
try the present suit?OPD
5. Whether the plaintiff has no locus standi nor cause of action
to file the present suit?OPD
6. Relief.
After appraisal of the entire evidence on record, the trial Court
dismissed the suit by holding that Rs.96375/- were not deposited by the
respondent in cash on 3.2.1997.
In appeal, the findings of the trial Court were upset and it was
held by the First Appellate Court that the appellant had not been able to
prove that duplicate deposit re-investment certificate was issued. The suit
was accordingly decreed.
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Hence, this appeal by the appellant.
Learned counsel for the appellant assailed the findings of the
First Appellate Court and contended that the respondent had failed to
establish that he had deposited the amount on 3.2.1997 and taken out a
certificate in lieu thereof. It was submitted with reference to the pleadings
that the respondent had stated that the amount as reflected in the deposit re-
investment certificate was deposited by way of cash, but no such record
exists with the appellant and, therefore, its plea that a duplicate certificate
had been issued without mentioning the word `duplicate’ on it due to
inadvertence ought to have been accepted by the First Appellate Court.
On the other hand, learned counsel for the respondent
vehemently argued that there was no occasion to issue a duplicate certificate
for the reason that there is nothing on record to suggest that the original had
been lost. The fact of the matter was that the respondent was having the
original certificate and the appellant was refusing to honour the same and,
therefore, the findings recorded by the First Appellate Court do not warrant
any interference.
I have thoughtfully considered the respective contentions.
I have examined Exhibit P1 and Exhibit D3, which are stated
to be the same receipts, one being the duplicate of the other. It is evident
from their perusal that they are totally at variance to each other. That apart,
the fact remains that from the testimony of DW1-Manohar Shukla, who was
posted as Manager of the concerned branch of the appellant at the relevant
time, stated that there are rules for issuance of duplicate receipt/certificate
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and that indemnity bond are taken along with a request for doing so. He
further stated that no such procedure was adopted in this case.
There is also no evidence on record to suggest that even a
semblance of such a procedure had been resorted to.
Therefore, the plea of the appellant that duplicate certificate had
been issued does not inspire any confidence.
It was the appellant, who had issued the certificate and,
therefore, it was for its functionaries to explain as to how the same had
come into existence.
In so far as the respondent is concerned, he has established that
he is in possession of a deposit re-investment certificate and the same
deserves to be honoured.
The plea of the appellant is sought to be fortified on the
strength of Mark-8 which is stated to be an undertaking of the respondent
for returning the originals. However, that was not even put to the respondent
and even if the contents thereof are read, the same do not reveal that any
request for issuance of any duplicate certificate had been made by the
respondent.
In this view of the matter when a pure finding of fact has been
recorded by the First Appellate Court regarding this aspect of the matter and
no substantial question of law having been shown to have arisen in this
appeal, the same is held to be without any merit and is dismissed.
February 25,2009 ( Mahesh Grover ) "SCM" Judge