{"id":232787,"date":"2010-01-20T00:00:00","date_gmt":"2010-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-overseas-bank-vs-v-v-soman-on-20-january-2010"},"modified":"2018-07-18T16:42:22","modified_gmt":"2018-07-18T11:12:22","slug":"indian-overseas-bank-vs-v-v-soman-on-20-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-overseas-bank-vs-v-v-soman-on-20-january-2010","title":{"rendered":"Indian Overseas Bank vs V.V.Soman on 20 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Indian Overseas Bank vs V.V.Soman on 20 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 768 of 2001()\n\n\n\n1. INDIAN OVERSEAS BANK\n                      ...  Petitioner\n\n                        Vs\n\n1. V.V.SOMAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.P.B.SAHASRANAMAN\n\n                For Respondent  :SMT.ELIZABETH MATHAI IDICULLA\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :20\/01\/2010\n\n O R D E R\n                      THOMAS P.JOSEPH, J.\n            = = = = = = = = = = = = = = = = = = = = = = = =\n                           S.A. No. 768 of 2001\n            = = = = = = = = = = = = = = = = = = = = = = = = =\n               Dated this the   20th    day of January, 2010\n\n\n                             J U D G M E N T\n<\/pre>\n
                             ———————\n<\/p>\n
      Heard both sides.\n<\/p>\n
      2.   The following substantial questions of law are framed for<\/p>\n
a decision.\n<\/p>\n<\/p>\n
                 (i)    Whether courts below            ought to<\/p>\n
           have found in view of Exts.B1 and B2 that<\/p>\n
           claim of deceased plaintiff is barred by the law<\/p>\n
           of limitation?\n<\/p>\n<\/p>\n
                 (ii)    Whether in the light of Exts.B1 to<\/p>\n
           B3 courts below are legally correct in holding<\/p>\n
           that the sum of Rs.9,900\/- is due to the<\/p>\n
           deceased plaintiff?\n<\/p>\n<\/p>\n
      3.   Second     Appeal              arises from concurrent finding<\/p>\n
entered by the courts below in A.S. No.130 of 1995 and O.S. No.1 of<\/p>\n
1993 and the decree granted in favour of the deceased plaintiff<\/p>\n
allowing him to recover the sum of Rs.9,900\/- with interest at the<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                  -: 2 :-<\/span><\/p>\n
rate of 12% per annum from 19.9.1986        till date of decree and<\/p>\n
thereafter at the rate of 6% per annum till date of realisation with<\/p>\n
costs and compensatory costs of Rs.250\/-.\n<\/p>\n
       4.     Facts of the case necessary for     a decision of the<\/p>\n
questions above framed are: Deceased plaintiff (respondents are his<\/p>\n
legal representatives)    was holding a SB A\/c with the appellant<\/p>\n
during the relevant time, opened on 03.03.1980. His case is that he<\/p>\n
has been depositing various amounts in the said account and on<\/p>\n
5.9.1986, then Cashier of the appellant had unauthorisedly<\/p>\n
withdrawn Rs.12,000\/- from his account making use of fabricated<\/p>\n
withdrawal slip.     The Cashier was charge sheeted by the CBI and<\/p>\n
convicted for various offences in connection with that withdrawal.<\/p>\n
On 5.9.1986 deceased plaintiff had Rs.22,521.30 by way of balance<\/p>\n
in his account.       On 19.9.1986 he deposited a further sum of<\/p>\n
Rs.15,000\/- making the balance amount due as on that day to<\/p>\n
Rs.37,521.30. His original passbook (Ext.A1) was taken custody by<\/p>\n
the CBI in connection with the criminal case against the Cashier.<\/p>\n
Appellant issued Ext.A2, duplicate passbook to deceased plaintiff<\/p>\n
showing the balance as on 9.10.1986 as Rs.121.30. On 6.11.1986<\/p>\n
appellant credited Rs.27,500\/- in the SB account under caption “by<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                   -: 3 :-<\/span><\/p>\n
claim”.    Original plaintiff was made to sign an indemnity bond and<\/p>\n
balance confirmation letter. According to the deceased plaintiff he<\/p>\n
did not know banking laws and he signed the documents without<\/p>\n
understating the contents. He therefore laid the suit for recovery of<\/p>\n
of Rs.9,900\/- which according to him ought to have been in his<\/p>\n
account by way of balance amount but for the misappropriation by<\/p>\n
the Cashier.         Appellant contended that on 9.10.1986 balance<\/p>\n
amount due in the account of deceased plaintiff was only Rs.121.30<\/p>\n
and on 6.11.1986 there was a settlement of the account between<\/p>\n
appellant and the deceased plaintiff as per which appellant had<\/p>\n
credited Rs.27,500\/- in the account of the deceased plaintiff under<\/p>\n
caption “by claim”. Thus the balance amount due in the account of<\/p>\n
deceased plaintiff     was Rs.27,621.30. That balance in the account<\/p>\n
was confirmed by the deceased plaintiff as per Ext.B1. He also<\/p>\n
executed Ext.B2, indemnity bond undertaking to make good the loss<\/p>\n
caused to the appellant in case the balance is not found to be<\/p>\n
Rs.27,621.30. It is incorrect to say that the balance in the account<\/p>\n
of deceased plaintiff should have been Rs.37,521.30.       Trial court<\/p>\n
upheld the claim of deceased plaintiff,       found that the balance<\/p>\n
amount as on 19.9.1986 was Rs.37,521.30 and hence deceased<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                 -: 4 :-<\/span><\/p>\n
plaintiff is entitled to recover     Rs.9,900\/- from the appellant.<\/p>\n
Appellate court has confirmed that finding and decree. Hence this<\/p>\n
Second Appeal on the substantial questions of law above framed.<\/p>\n
Learned counsel for appellant would contend that the suit is<\/p>\n
hopelessly barred by limitation since even as on 6.11.1986 when<\/p>\n
Exts.B1 and B2 were executed by the deceased plaintiff in favour of<\/p>\n
appellant, the       former was aware that    balance amount in his<\/p>\n
account was only Rs.27,621.30 including the sum of Rs.27,500\/-<\/p>\n
credited by the appellant under the caption “by claim” in view of the<\/p>\n
settlement reached between appellant and the deceased plaintiff.<\/p>\n
Learned counsel would contend that the mere fact that notice was<\/p>\n
issued to the appellant on 28.3.1992 cannot confer any cause of<\/p>\n
action for the deceased plaintiff or extend the period of limitation.<\/p>\n
According to the learned counsel suit filed in the year 1993 is barred<\/p>\n
by limitation. It is also contended by learned counsel that at any<\/p>\n
rate courts below went wrong in holding that balance amount in the<\/p>\n
account of deceased plaintiff as on 19.9.1986 was Rs.37,521.30,<\/p>\n
ignoring Exts.B1 to B3.      So far as Ext.B3 is concerned learned<\/p>\n
counsel would contend that it is the true extract of the ledger of the<\/p>\n
account of deceased plaintiff maintained by the appellant in the<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                       -: 5 :-<\/span><\/p>\n
usual course of business and hence it could be admitted in evidence<\/p>\n
under Section 4 of the Banker’s Book Evidence Act. Learned counsel<\/p>\n
placed reliance on the decisions in Krishna Gopal Kakani v.<\/p>\n
Bank of Baroda (AIR<\/a> 2008 SCW 7379) and Bihar State<\/p>\n
Electricity Board, Patna v. M\/s.Green Rubber<\/p>\n
Industries (AIR<\/a> 1990 SC 699).               In response it is contended by<\/p>\n
learned counsel for respondents that no plea of limitation has been<\/p>\n
raised in the written statement, no such question was urged in the<\/p>\n
trial court, that question was raised for the first time only in the first<\/p>\n
appellate court and hence that plea cannot be allowed to be raised<\/p>\n
in the Second Appeal since question of limitation is a mixed question<\/p>\n
of law     and fact.     So far as      acceptability of Exts.B1 to B3 is<\/p>\n
concerned learned counsel submits that courts below rightly<\/p>\n
disregarded Exts.B1 to B3 and at any rate Exts.B1 to B3 cannot<\/p>\n
override Ext.A1, original passbook issued by the appellant so far as<\/p>\n
the entires therein are not shown to be incorrect.<\/p>\n
       5.     I shall refer to the substantial question of law framed as<\/p>\n
to the issue of limitation.     It is true that in the written statement no<\/p>\n
specific plea of limitation is raised.        But it is not disputed that in<\/p>\n
the first appellate court that plea was raised, though it was not<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                   -: 6 :-<\/span><\/p>\n
decided. As pointed out by learned counsel on both sides question<\/p>\n
of limitation is one of law and fact. A question of law could be<\/p>\n
raised for the first time in the appeal. Now question of limitation is<\/p>\n
urged on the facts admitted and proved.        Therefore I propose to<\/p>\n
decide     the question regarding limitation    raised in the Second<\/p>\n
Appeal.\n<\/p>\n
       6.     Contention raised by learned counsel for appellant is that<\/p>\n
period of limitation for the suit must begin to run from Exts.B1 and<\/p>\n
B2 dated 6.11.1986 when deceased plaintiff          acknowledged the<\/p>\n
balance amount payable to him as Rs.27,621.30.        Under Article 22<\/p>\n
of the Limitation Act (for short, “the Act”) the period of limitation for<\/p>\n
a suit for recovery of the money deposited under an agreement that<\/p>\n
it shall be payable on demand including the money of a customer in<\/p>\n
the hands of his banker so payable is three years and period of<\/p>\n
limitation will begin to run from the date when the demand is made.<\/p>\n
The agreement to pay on demand need not be express but may also<\/p>\n
be implied. The agreement could also be deduced from course of<\/p>\n
dealings. It is not disputed that deceased plaintiff was a customer<\/p>\n
of the appellant (banker) and that he was maintaining a SB A\/c with<\/p>\n
the appellant which is a running account.       Though in the case of<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                   -: 7 :-<\/span><\/p>\n
loan or deposit it could be said that there is no fiduciary relationship<\/p>\n
between banker and customer as the repayment of loan or deposit is<\/p>\n
governed by the terms of the contract, it could not be said so in the<\/p>\n
case of a running account.        In the case of running account it is<\/p>\n
possible to say that money is being retained by the banker in a<\/p>\n
fiduciary capacity. In Krishna Gopal Kakani v. Bank of Baroda<\/a><\/p>\n
(supra) the Supreme Court considered the relationship between a<\/p>\n
banker and customer so far as      deposit of money is concerned and<\/p>\n
held that Article 22 of the Act    would not be attracted on the facts<\/p>\n
of that case. It was also held that banker was not the trustee for<\/p>\n
the money. That is because deposit is on the terms of contract<\/p>\n
between customer and the banker. But in paragraph 21 of the<\/p>\n
judgment quoting the observations in       UCO Bank v. Hem<\/p>\n
Chanda Sarkar (AIR<\/a> 1990 SC 1329) it was held that “we may<\/p>\n
also state that in practice bankers do not set up the statute<\/p>\n
of limitations against their customers or their legal<\/p>\n
representatives, and we see no reason why this case should<\/p>\n
be an exception to that practice”. On the facts of this case I am<\/p>\n
persuaded to accept the contention of learned counsel for<\/p>\n
respondents that      there was      a fiduciary relationship between<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                  -: 8 :-<\/span><\/p>\n
appellant and the deceased plaintiff as the account of the latter<\/p>\n
with the appellant was a running account and it is not a case of loan<\/p>\n
or deposit which is governed by the terms of the contract between<\/p>\n
them. Appellant was keeping the money in safe custody to be given<\/p>\n
to the deceased plaintiff as and when the latter desired. Even as per<\/p>\n
Article 22 of the Act period of limitation for suit for recovery of<\/p>\n
money of a customer in the hands of his banker is three years<\/p>\n
beginning from the date on which demand is made which in the<\/p>\n
present case was on 20.3.1992. Suit was filed within three years<\/p>\n
from that date. Hence it cannot be said that suit is barred by<\/p>\n
limitation.\n<\/p>\n
       7.     Now what remained for consideration is whether on the<\/p>\n
facts and evidence on record courts below were justified in not<\/p>\n
acting upon Exts.B1 to B3 in preference to       Ext.A1.    It is not<\/p>\n
disputed that Ext.A1 is the original passbook issued by the appellant<\/p>\n
and as per that, on 19.9.1986 there was a deposit of Rs.15,000\/-<\/p>\n
making up the balance in the account of deceased plaintiff to<\/p>\n
Rs.37,521.30. So far as Exts.B1 to B3 are concerned, Ext.B1 is the<\/p>\n
confirmation letter dated 6.11.1986 where the balance as on that<\/p>\n
day is stated to be Rs.27,621.30 including the sum of Rs.27,500\/-<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                 -: 9 :-<\/span><\/p>\n
admittedly credited by the appellant under the caption “by claim” on<\/p>\n
that day. Learned counsel for      appellant would say that the said<\/p>\n
amount was credited in the account of deceased plaintiff     following<\/p>\n
a settlement reached between appellant and the deceased plaintiff<\/p>\n
on 6.11.1986 as evidenced by Exts.B1 and B2.        Exhibit B2 is the<\/p>\n
indemnity bond for the said sum of Rs.27,500\/- executed by the<\/p>\n
deceased plaintiff. He has a case that he was not aware of the<\/p>\n
contents. That contention of course cannot stand since it is admitted<\/p>\n
by the deceased plaintiff that he has executed Exts.B1 and B2. In<\/p>\n
Bihar State Electricity Board, Patna v. M\/s.Green Rubber<\/p>\n
Industries<\/a> (supra) it is held that a person who executes the<\/p>\n
document is normally bound by it even though he has not read it or<\/p>\n
was ignorant of the precise legal effect of the document. I am at the<\/p>\n
question whether Exts.B1 and B2 by itself would defeat the claim of<\/p>\n
deceased plaintiff. Going by Exts.B1 and B2 I am unable to find that<\/p>\n
deceased plaintiff had conceded that no amount was deposited by<\/p>\n
him on 19.9.1986 or that there was            no such balance       of<\/p>\n
Rs.37,521.30 as on that day.    Circumstances in which Exts.B1 and<\/p>\n
B2 came into existence has also to be looked into.           It is not<\/p>\n
disputed that even prior to Exts.B1 and B2, the CBI had proceeded<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                   -: 10 :-<\/span><\/p>\n
against the Cashier of appellant and in connection with that case<\/p>\n
Ext.A1, original passbook issued to the deceased plaintiff was taken<\/p>\n
custody of by the CBI. Hence Ext.A1 was not with the deceased<\/p>\n
plaintiff on 6.11.1986 when Exts.B1 and B2 were executed by him.<\/p>\n
On the other hand it is not disputed that it is after Exts.B1 and B2<\/p>\n
that Ext.A1, original passbook was returned to the deceased plaintiff<\/p>\n
from the custody of the CBI. Exhibit B3 is the certified copy of the<\/p>\n
ledger maintained by the appellant. First appellate court found fault<\/p>\n
with Ext.B3 for the reason that some of the entries in it appeared to<\/p>\n
be the result of overwriting.      Learned counsel for appellant would<\/p>\n
contend that first appellate court was not correct in observing so and<\/p>\n
there is no material to show that Ext.B3 was falsified.         In this<\/p>\n
connection learned counsel placed reliance on Section 4 of the<\/p>\n
Banker’s Book Evidence Act.\n<\/p>\n
       8.     It is not clear how the balance sum of Rs.27,621.30 was<\/p>\n
arrived at. Admittedly deposit of Rs.15,000\/- allegedly made by the<\/p>\n
deceased plaintiff on 19.9.1986 and shown in Ext.A1 has not been<\/p>\n
given credit to in Ext.B3 to say that the balance as on 6.11.1986<\/p>\n
(including Rs.27,500\/- credited by the appellant on that day) was<\/p>\n
Rs.27,621.30.       Therefore Exts.B1 and B2 prepared on the basis of<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                  -: 11 :-<\/span><\/p>\n
Ext.B3 necessarily escaped the sum of Rs.15,000\/- seen deposited<\/p>\n
by the deceased plaintiff on 19.9.1986. If that be so, merely based<\/p>\n
on Exts.B1 and B2 appellant cannot wash off its hands so far as the<\/p>\n
deposit of Rs.15,000\/- is concerned.       So   far   as   Ext.A1   is<\/p>\n
concerned, I do not find any challenge to it on the ground that it is<\/p>\n
either fraudulently created by the deceased plaintiff or that entry<\/p>\n
regarding deposit of Rs.15,000\/- in the passbook on 19.9.1986 was<\/p>\n
the result of collusion between deceased plaintiff and the then<\/p>\n
Cashier. So far as the relevant entry in Ext.A1 is not shown to be<\/p>\n
incorrect, appellant is bound by it. Taking into account the normal<\/p>\n
banking practice and presumption being against illegality, I must<\/p>\n
presume that the entry in Ext.A1 on 19.9.1986 was made genuinely<\/p>\n
and correctly by the Cashier of the appellant       in the  course of<\/p>\n
discharge of his official duty as Cashier. That binds the appellant. If<\/p>\n
a corresponding entry is not made by the Cashier in the ledger<\/p>\n
maintained by the appellant,       that is not the fault of deceased<\/p>\n
plaintiff. In the circumstances for the reason of corresponding entry<\/p>\n
regarding deposit of Rs.15,000\/- in the account on 19.9.1986 not<\/p>\n
being made in the ledger, if at all be so, appellant cannot say that<\/p>\n
no such amount was deposited on 19.9.1986. Thus, it is not shown<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                                  -: 12 :-<\/span><\/p>\n
that Ext.B3 to the extent it concerned the deposit of Rs.15,000\/-<\/p>\n
shown in Ext.A1 on 19.9.1986 is concerned, is true and correct. The<\/p>\n
presumption attached to Ext.B3 so far as the impugned deposit is<\/p>\n
concerned, stands rebutted by Ext.A1. If that be so, Exts.B1 and B2<\/p>\n
prepared on the basis of Ext.B3 cannot be accepted in preference to<\/p>\n
Ext.A1.     Exhibit A1 binds the appellant.    Appellant being in a<\/p>\n
fiduciary capacity, was bound to pay the amount when asked for by<\/p>\n
the deceased plaintiff on 20.3.1992.      Courts below are therefore<\/p>\n
justified in not preferring Exts.B1 to B3 to Ext.A1. The Substantial<\/p>\n
questions of law framed are answered accordingly.<\/p>\n
       Second Appeal is dismissed. No costs.\n<\/p>\n
       Civil Miscellaneous Application No.1817 of 2001 shall stand<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
                                        THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
vsv<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                         -: 13 :-<\/span><\/p>\n
                                  THOMAS P.JOSEPH, J.\n<\/p>\n
                              ===================
\n                                   S.A. No.768 of 2001
\n                              ===================<\/p>\n
                                    J U D G M E N T<\/p>\n
                                 20TH   JANUARY, 2010<\/p>\n
R.S.A. No.768 of 2001<\/p>\n
                         -: 14 :-<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Indian Overseas Bank vs V.V.Soman on 20 January, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 768 of 2001() 1. INDIAN OVERSEAS BANK … Petitioner Vs 1. V.V.SOMAN … Respondent For Petitioner :SRI.P.B.SAHASRANAMAN For Respondent :SMT.ELIZABETH MATHAI IDICULLA The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :20\/01\/2010 O R D E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-232787","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nIndian Overseas Bank vs V.V.Soman on 20 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-overseas-bank-vs-v-v-soman-on-20-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Overseas Bank vs V.V.Soman on 20 January, 2010 - 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