{"id":268344,"date":"2002-06-19T00:00:00","date_gmt":"2002-06-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-ms-athi-offset-printers-on-19-june-2002"},"modified":"2014-06-22T00:55:32","modified_gmt":"2014-06-21T19:25:32","slug":"central-bank-of-india-vs-ms-athi-offset-printers-on-19-june-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-bank-of-india-vs-ms-athi-offset-printers-on-19-june-2002","title":{"rendered":"Central Bank Of India vs M\/S. Athi Offset Printers on 19 June, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Central Bank Of India vs M\/S. Athi Offset Printers on 19 June, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 19\/06\/2002\n\nCoram\n\nThe Honourable Mr. Justice P. SHANMUGAM\nand\nThe Honourable Mr. Justice K. SAMPATH\n\nA.S. No.1288 of 1986\n\nCentral Bank of India,\nDivisional Office, through\nits Chief Manager,\nGood Shed Street,\nMadurai.                                        ..  Appellant\n\n                vs.\n\n1. M\/s. Athi Offset Printers,\n   120, Chariman P.K.S.A. Arumuga\n   Nadar Road, Sivakasi, through\n   one of its Partners\n   P. Kanagu Reddy.\n\n2. P. Kanakku Reddy\n\n3. S. Mariappan\n\n4. A.E. Nagarajan\n\n5. A.M. Karuppaswami\n\n6. K. Subbiah Nadar\n\n7. K.A. Malayappa Nadar\n\n8. M\/s. Siva Presss, through\n   its Partner M.L. Chauhan,\n   B-218, Naraiana Industrial Area\n   Phase-I, New Delhi-110 028.\n\n9. R.D. Jagtiani\n\n10. Basanth Singh\n\n11. Kanniammal\n\n12. E. Muthu Mariappan\n\n13. Minor E. Periasamy\n\n14. Minor E. Ganesan\n\n15. Minor E. Kumar\n    (Minor respondents 13 to 15\n     rep. by their guardian\n        E. Muthu Mariappan\n\n16. Mariammal\n\n17. E. Anna Pushpam\n\n18. Minor E. Duskeswari\n\n19. Minor E. Pappa\n    (Minor respondents 18 & 19\n     rep. by their guardian\n     A.E. Nagarajan)                    ..  Respondents\n\n\nPRAYER :  Appeal against the Judgment and Decree dated passed by  the  learned\nSubordinate Judge,  Srivilliputhur dated 29.8.1985 and made in O.S.  No.101 of\n1982.\n\n!For Appellants :  Mr.  T.R.  Mani, Senior Counsel\n                for Mr.  T.M.  Hariharan.\n\n^For Respondents :  Mr.  S.M.  Hameed Mohideen\n                        (For R-1 to R-5)\n\n                Mr.  V.  Venkataseshan\n                (For RR-6, 7, 11, 12, 13,\n                16, 17, 18 and 19)\n\n\n:J U D G M E N T\n<\/pre>\n
P.  SHANMUGAM, J.\n<\/p>\n
        Plaintiff is the appellant.  The appeal is against  the  dismissal  of
\nthe  suit  filed  for  a  declaration  that  they  are entitled for payment of
\nRs.6,64,055.14 with interest  at  11.85%  per  annum  and  for  a  preliminary
\nmortgage  decree  against  defendants  2 to 4, 6 and 12 to 20, and in case the
\nsale proceeds are not sufficient to satisfy the amount  due,  for  a  personal
\ndecree against  all  the defendants.  The learned Sub Judge dismissed the suit
\nagainst all the  defendants,  but  decreed  the  suit  as  against  the  ninth
\ndefendant.  The appeal is against this judgment and decree.\n<\/p>\n
        2.  The brief facts of the case are stated hereunder.  The parties are
\ndescribed as per their rank before the Subcourt.\n<\/p>\n
        3.  The  first defendant is a newly registered partnership firm.  They
\nare freshers and wanted to start an industry in printing.  Defendants 1 to  5,
\nthrough  a  common  broker, were introduced to the ninth defendant who assured
\nthe third defendant that he was in a position to supply printing machines with
\nall equipments and that he had a title to a printing machine.    An  agreement
\ndated  29.3.1980  was  entered  into  on  behalf  of  the  firm with the ninth
\ndefendant for the sale of a printing machine which was housed in the  premises
\nof one  Rahamath  Press  at  Hyderabad.   Defendants 1 to 5 paid an advance of
\nRs.1,00,000\/-  towards  the  settled  price  of  Rs.8,25,000\/-  on  29.3.1980.
\nThereafter, they  sought for financial assistance from the plaintiff bank.  In
\nthe meanwhile, the  machine  is  said  to  have  been  shifted  to  the  ninth
\ndefendant’s  premises  at  New Delhi and therefore, the regional office of the
\nplaintiff bank at New Delhi had been requested to get the machine inspected by
\nan approved Valuer,  and  the  tenth  defendant,  an  approved  Valuer  and  a
\nChartered Engineer, after inspection of the machinery, submitted his report on
\n23.7.1980.   Thereafter,  the regional office of the plaintiff bank at Madurai
\nsanctioned an amount to an extent of Rs.5 ,48,000\/-  and  defendants  1  to  5
\nexecuted  an  agreement  with  the  bank  on  24.10.1980  and on the same day,
\ndefendants  2  to  5  also  executed   a   loan-cum-hypothecation   agreement,
\nhypothecating the  machine.  Defendants 2 and 6 to 8 had deposited title deeds
\nrelating to the properties as security for the loan.  As the original price of
\nthe machine was Rs.8,25,000\/-, the defendants had paid a sum of  Rs.1,00,000\/-
\nas  advance  on  29.3.1980 and another sum of Rs.50,000\/- on 11.9.1980 and the
\nbalance due was Rs.6,75,000\/-.  Defendants 1 to 5 were asked by the  plaintiff
\nbank’s  branch  at  Sivakasi  to  deposit  with  their branch a further sum of
\nRs.1,27,000\/- over and above the sanctioned loan of Rs.5,4 8,000\/- to make  up
\nthe amount  for the sale consideration.  Accordingly, defendants 1 to 5 had to
\ndeposit the said amount of Rs.1,27,000\/-.    At  the  instance  of  the  ninth
\ndefendant,  the  draft  was sent to the New Delhi branch of the plaintiff bank
\nwith instructions to  hand  over  the  draft  to  the  ninth  defendant  after
\nsatisfying  the  title  of the ninth defendant to the machinery and only after
\ndismantling and loading the machinery in the truck.  On  further  instructions
\nfrom the regional office of the plaintiff bank at Madras, the New Delhi branch
\nwas  directed  to allow the ninth defendant to encash the draft subject to the
\nparty giving  suitable  undertaking  drafted  by  a  lawyer.    Thereafter,  a
\ntripartite  agreement dated 10.11.1980 between the ninth defendant represented
\nby its partner as  Seller,  the  first  defendant  represented  by  the  third
\ndefendant  as Buyer and the regional office of the plaintiff bank as the Bank.
\nPursuant to the said undertaking, the demand draft  was  handed  over  to  the
\nninth  defendant  by  the  bank  and  he  was  allowed  to  encash  the  same.
\nThereafter, the  ninth  defendant  had  issued  an  invoice  dated  16.11.1980
\nclaiming to  have  despatched  the machine through M\/s.  Omkara Transport, New
\nDelhi to Sivakasi.  But as a matter of fact, no such transport company  is  in
\nexistence or the machine was transported by the said lorry.\n<\/p>\n
        4.   According  to  defendants 1 to 5, they had informed the plaintiff
\nthat inspite of the encashment of the draft and receipt, the machine  was  not
\nloaded  and  transported  to defendants 1 to 5 and they requested action to be
\ntaken against the ninth defendant.  According to the plaintiff, the defendants
\nhave taken delivery as per the records furnished by the  ninth  defendant  and
\ntherefore, the defendants are liable for the amount.  Both the parties pleaded
\ncollusion with  the  ninth  defendant  against  each  other.    However, it is
\nadmitted now in the plaint that the machine had not  been  despatched  in  any
\ntruck from  New  Delhi.   According to the plaintiff, they had parted with the
\ndemand draft and allowed the encashment of the same  by  the  ninth  defendant
\nbefore the machine in question was actually dismantled and loaded in the truck
\nfor  despatch  and  the agreement dated 10.11.1980 had been entered into under
\nthe bonafide plea that the ninth and the first defendant have had  come  to  a
\nbonafide  agreement  with  regard to the condition of the machine, it delivery
\nand despatch etc.  Whereas, it is the specific case of defendants 1 to 5  that
\nthey  were  new  to  the  business and that they had very little education and
\nexperience having no knowledge of English or Hindi at New Delhi and it is  the
\nbank  officials who have manipulated the records and allowed the encashment of
\nthe demand draft by the ninth defendant in collusion  with  him  in  order  to
\ndefraud defendants 1 to 5.\n<\/p>\n
        5.   The  suit  has been filed for a declaration that the plaintiff is
\nentitled for payment of Rs.6,64,055.14 with interest  and  for  a  preliminary
\nmortgage decree and for a personal decree.\n<\/p>\n
        6.   The  ninth  as  well as the eleventh defendant remained ex parte.
\nThe learned Sub Judge, after an elaborate trial, found as follows :\n<\/p>\n
        (a) that the tripartite agreement dated 10.11.1980 would supersede the
\nloan and guarantee agreements dated 24.10.1980 ;\n<\/p>\n
        (b) that the plaintiff had agreed to secure the machine and unless the
\nsame was delivered to defendants 1 to 5, no claim will lie against them ; and\n<\/p>\n
        (c) that the bank officials have acted contrary to the instructions of
\ntheir Sivakasi branch and acted in support of the ninth  defendant,  resulting
\nin the loss of the machine.\n<\/p>\n
On  these findings, the trial court decreed the suit only as against the ninth
\ndefendant and dismissed the suit as against the other defendants.  The  appeal
\nis against this judgment and decree.\n<\/p>\n
        7.   The  plaintiff rested the suit on the basis of an agreement dated
\n24.10.1980 containing the terms of the term loan.  The hypothecation letter of
\nthe first defendant and  the  mortgage  by  deposit  of  title  deeds  by  the
\nguarantors  for  securing  the  due  repayment  of  the  amount  of  a  sum of
\nRs.5,48,000\/- on their failure to repay the loan.  The plaintiff proceeded  to
\nstate that it is defendants 1 to 5, who in collusion with the ninth defendant,
\ninduced  the  plaintiff to part with the demand draft for Rs.6,75,000\/- to the
\nninth defendant for his encashment, preceded by a tripartite  agreement  dated
\n10.11.1980  and  therefore,  the  defendants  are  solely  liable to repay the
\namount.  Whereas, the case of the defendants is that it is not a  simple  loan
\ntransaction and there is no normal relationship of lender and borrower, and as
\nper  the  conditions of the sanctioning of the loan, the plaintiff bank has to
\ndeliver the machinery for the price for which the loan  has  been  sanctioned.
\nThey  contend that they are the victims of great fraud, cheating and breach of
\ntrust and that the bank officials have colluded with the ninth  defendant  and
\nreleased  the  draft  and  permitted  the  encashment  of the same even before
\nverifying the title of the ninth defendant to the machinery and  the  delivery
\nof the same to the defendants.  According to the defendants, the plaintiff has
\ncaused  loss to the defendants to an extent of Rs.2,75,000\/- which was paid by
\nthe defendants by way of advance for the purchase of the machinery as well  as
\nthe  further  balance  deposited with the bank towards the sale consideration.
\nThe defendants also plead that they being new to  the  business,  in  contrast
\nwith  the  experienced  staff  of  the bank, had been subjected to harassment,
\ncoercion and were forced to sign various documents in order to help the  ninth
\ndefendant.   According  to  them,  the  bank acted against the interests of an
\nignorant customer.\n<\/p>\n
        8.  We have heard Mr.  T.R.  Mani, learned senior counsel appearing on
\nbehalf of the appellant in extenso as well as Mr.  S.M.  Hameed  Mohideen  and
\nMr.  V.    Venkataseshan,   counsel   for  the  respondents.    There  was  no
\nrepresentation on behalf of the ninth defendant.\n<\/p>\n
        9.  Pursuant to an application dated 23.4.1980  (Ex.A.1)  for  a  term
\nloan  to  the  extent  of Rs.6,00,000\/-, the plaintiff bank sanctioned a loan.
\nThe bank had  obtained  the  usual  agreement,  letter  of  hypothecation  and
\nguarantee on  the deposit of title deeds, creating mortgage on 24.10.1980.  As
\nper the terms of the agreement,  the  machinery  was  to  be  treated  as  the
\nproperty  of  the bank and the same shall be the subject matter of mortgage to
\nthe bank.  The sanctioning order containing the conditions of the sanction was
\nnot produced by the plaintiff inspite of a specific order by the court  to  do
\nso.  The case of the counsel for the defendants is that the sanctioning of the
\nloan  is  for  the  purchase  of  the  machinery  and  subject to the physical
\nverification and title on the part of the ninth defendant.  As rightly pointed
\nout, the amount sanctioned was only Rs.5,48,000\/-, but the same was not handed
\nover to the defendants.  The said amount was debited to  the  account  of  the
\ndefendants  and  thereafter,  the  defendants  were directed to make a further
\ndeposit of Rs.1,27,000\/- to make up the sum of Rs.6,75,000\/- which  represents
\nthe  balance  amount  payable  towards  the  value  of  the machinery which is
\nRs.8,25,000\/-, after giving credit to Rs.1,50,000\/- which was already paid  by
\nthe defendants.    Without  any  intimation  from the defendants, the bank had
\ninsisted upon the defendants to make a  deposit  of  Rs.1,27,000\/-  above  the
\nsanctioned  loan  of Rs.5,48,000\/- to make up the amount required for the bank
\ndraft.  Though the defendants did not ask  for  taking  of  a  bank  draft  of
\nsending  it to the ninth defendant, as per the instructions for the divisional
\noffice at Madras, a draft was taken and sent to the  regional  office  at  New
\nDelhi directly,  as evidenced by Ex.A.68.  The said communication specifically
\ndirects the regional office, New Delhi to deliver the draft  to  the  supplier
\nonly  after  satisfying  themselves about the clear title of the machinery and
\nafter the machinery is dismantled and loaded in the truck.    They  have  also
\ndirected  to  obtain  receipt  of  the draft and arrange to advise immediately
\nafter the machinery is taken delivery by the party.  Contrary to this specific
\ndirection, a subsequent decision was taken and a direction was issued  as  per
\nEx.A.142  dated  1.11.1980  to  the New Delhi office stating that the supplier
\nwants the draft to be delivered to him before the machinery is  dismantled  to
\navoid  the alleged delay and the bank was directed to contact the supplier and
\nfind out  a  via  media  to  ensure  that  the  machinery  is  dismantled  and
\ndespatched,  and  in  case  the supplier insists on the supply of the draft in
\nadvance, to deliver the draft after taking  a  written  undertaking  from  the
\nsupplier that the machinery will be dismantled and loaded in the truck in good
\ncondition  within two days from the receipt of the draft and that the supplier
\nwill hold the draft in the mean time and encash  it  only  after  loading  the
\nmachinery.\n<\/p>\n
        10.   In  the light of these admitted facts, the crucial question that
\narises for consideration is whether the action of the plaintiff in sending the
\ndraft directly in the name of the ninth defendant  and  delivering  the  draft
\nbefore  delivery  of  the  machinery  and  permitting  its  encashment  before
\nobtaining delivery of the machinery is correct or not and whether defendants 1
\nto 5 and 6 to 8 are liable for the suit claim.\n<\/p>\n
        11.  The argument of the learned senior counsel for the  appellant  is
\nthat all these transactions had taken place only at the instance of defendants
\n1  to  5 and with their undertaking and in pursuance to a tripartite agreement
\ndated 10.11.1980.  The case of defendants 1  to  5  is  that  signatures  were
\nobtained  from  them  by  the  bank  people at New Delhi and the same had been
\nutilised to show as though they have taken delivery of the  machinery.    But,
\nthe  fact remains, which is now admitted, that the machinery was not delivered
\non 16.11.1980.  We shall now proceed to consider these  documents  and  as  to
\nwhat extent they will bind the defendants.\n<\/p>\n
        12.   Ex.A.68  dated 24.10.1980, a communication of the Branch Manager
\nof the plaintiff bank, Sivakasi to their Regional Manager, New Delhi  as  well
\nas  the  communication  of the Regional Office, Chennai to their office at New
\nDelhi, Ex.A.142 dated 1.11.1980 is very clear to the  effect  that  the  draft
\nshall  be handed over only after the machinery is dismantled and put on truck.
\nThe communication dated 1.11.1980 which waters down this initial condition  is
\nalso  to  the  effect  that  even  after  handing  over  of  the draft, before
\ndismantling and despatching the machinery, the draft  shall  be  held  up  and
\nshould  not  be  allowed  to  be  encashed before loading the machinery in the
\ntruck.  After this, by a communication dated 5.11.1980,  Ex.A.99,  the  Madras
\noffice  further  removes  the  condition  on  the  encashment of the draft and
\npermits the ninth defendant to encash  the  draft  subject  to  his  giving  a
\nsuitable  undertaking  properly  drafted  by  a  lawyer,  confirming  that the
\nmachinery will be dismantled and loaded in the truck in good working condition
\nwithin a reasonable time after encashment of the draft, say within three days,
\nand on his failure, he will refund the draft  amount  unconditionally  to  the
\nbank.   After  this  concession by the bank, an agreement dated 10.11.1980 was
\nentered into between the seller, the buyer and the bank at New Delhi.  As  per
\nthis  agreement,  the  seller shall be entitled to encash the draft subject to
\ndelivery.  In other words, on this undertaking, the seller  was  permitted  to
\nget the  draft  and  encash  the  same.    The  agreement says that in case of
\ndefault, both the seller and the buyer shall be jointly and  severally  liable
\nfor all the damages and loss.  The ninth defendant, after encashing the draft,
\nissues a  delivery  receipt  Ex.A.107  dated  16.11.1980 and a bill Ex.  A.108
\ndated 16.11.1980.  But as  a  matter  of  fact,  no  such  delivery  had  been
\neffected.\n<\/p>\n
        13.   P.W.2, an officer of the Central Bank Regional Office, New Delhi
\nduring the relevant time, has admitted that they have a list of companies  for
\ntransporting  the  goods and he could not say whether Omkara Transport Company
\nis in existence.  As a party to the tripartite agreement, the  plaintiff  bank
\nalso has the responsibility for getting delivery of the machinery.  They could
\nnot  have  allowed even for argument sake the undertaking of defendants 1 to 5
\nas a proof for taking delivery of the machinery.  In any event, by that  time,
\nthe demand  draft  had  been encashed.  The agreement with the ninth defendant
\nfor the purchase of the machinery Ex.A.2 is nothing but a receipt  of  advance
\nof Rs.1,00,000\/-  for  the  purchase  of the printing machine.  The receipt is
\ndated 29.3.1980.  Only on the basis of this  receipt,  the  parties  proceeded
\nthat  the  ninth defendant is the owner, whereas it could be seen from Ex.A.5,
\nreport that the ninth defendant purchased this  machinery  subsequently,  i.e.
\non 16.6.1980.\n<\/p>\n
        14.   Another important factor is that on behalf of defendants 1 to 5,
\ntwo of the partners of the firm Mr.  S.  Mariappan and Mr.  Kanaku Reddy  were
\nadvised to proceed to New Delhi and contact the regional office to liaison the
\nmatter.  The letter Ex.A.68 dated 24.10.1980 itself refers to this deputation.
\nTherefore,  it  is clear that these two partners were in New Delhi with a copy
\nof the letter containing  their  specimen  signature  to  get  the  machinery.
\nContrary to their earlier understanding, the ninth defendant started insisting
\nthat  the  draft should be handed over to him and that he must be permitted to
\nencash the same.  P.W.4, who is an officer working in the Credit Department of
\nthe bank, has stated that they have received a telex message dated 3.1  1.1980
\nwhich  is  Ex.A.102,  wherein  it  is  stated that the supplier insists on the
\ndelivery of the draft for which the regional office sends  a  reply  Ex.A.146.
\nHe  further  says  in  his  chief-examination that Mariappan and Raman came to
\ntheir office and informed him  that  the  supplier  is  saying  that  he  will
\ndelivery  the  machinery  only  when  the  Delhi office pays him the money and
\nsought for instructions.  Thereafter, he put up a note  before  the  Assistant
\nGeneral Manager.    In the cross-examination, he states that Mariappan came to
\ntheir office three  times  on  25.10.1980,  3.11.1980  and  5.11.1980  and  he
\nemphasises in his evidence that the dates given by him are correct.  According
\nto him,  on  29.10.1980,  he  went  to  the  A.G.M.    and  talked  to him and
\nimmediately he directed him to come with the file.  Mariappan told the  A.G.M.
\nthat the seller is insisting on the delivery of the draft.  He said so to that
\neffect on  5.11.1980.    Prior  to  this, on 29.10.1980 also, Mariappan made a
\nrepresentation to the A.G.M.  At that time, he was there in the office  as  an
\nofficer dealing  with  the  file.  Mariappan gave an undertaking at that time,
\nbut he did not produce the same.  Therefore, a  reading  of  the  evidence  of
\nP.W.4  makes it clear that Mariappan had returned back to Madras on 29.10.1980
\nin the light of the insistence of  delivery  of  the  draft  and  for  further
\ninstructions.   Ex.A.147  dated  3.11.1980 also refers to Mariappan calling on
\nthe A.G.M.  on 30 .10.1980 and Mariappan contacting the  department  insisting
\nthe supplier’s  demand to encash the draft.  The document Ex.A.100 states that
\nit is their risk and responsibility to deliver the draft for Rs.6,75,000\/-  to
\nthe ninth  defendant.  They also undertook that the machinery in question will
\nbe truck loaded upon receipt of the draft and that they will do their best  to
\nhold the  draft  till  the machinery is loaded.  It is after this that Ex.A.99
\nwas issued by the Madras Regional  Office  to  the  Central  Zone,  New  Delhi
\nallowing the  encashment  of the draft subject to the undertaking.  Therefore,
\nMariappan could not have been physically present on 3.11.1980 and  this  would
\nhave  been  created on a date suitable and convenient to the appellant and the
\nninth defendant.  The description of the machinery as per the delivery receipt
\ndated 16.11.1980 is different from the one in  the  report  of  the  Engineer,
\nEx.A.5.   It  is  obvious  that  the delivery receipts and the bills have been
\nfabricated as though the machinery were delivered and truck loaded.\n<\/p>\n
        15.   After  the  failure  of  the  ninth  defendant  to  deliver  the
\nmachinery,  the  defendant,  along with Raman, went to Delhi and met P.W.2 and
\nthe ninth defendant.  It is stated that the ninth defendant demanded a further
\nsum of Rs.35,000\/- and unable to meet  this  demand,  they  returned  back  to
\nSivakasi.   On  17.1.1981,  the  ninth  defendant had issued a telegram to the
\nsecond defendant, Ex.P.15 directing the defendants to  come  to  Hyderabad  on
\n22.1.1981.   Defendants  1 to 3 went to Hyderabad to meet the ninth defendant,
\nbut had to return disappointed, since the ninth defendant  did  not  turn  up.
\nThereafter,   they  wrote  Ex.A.96  to  the  Manager,  Sivakasi  Branch  dated
\n27.1.1981, copies of which were sent to Madras, Madurai and Delhi branches  of
\nthe plaintiff  bank.  It is thereafter, defendants again went to Delhi and met
\nP.W.2 with Ex.A.1,  letter  dated  24.2.1981  and  tried  to  meet  the  ninth
\ndefendant.   This time, the ninth defendant is said to have demanded a further
\nsum of Rs.36,000\/- and after returning to  Sivakasi,  they  gave  a  complaint
\nEx.A.73 requesting the appellant to hand over the machinery.\n<\/p>\n
        16.   The  trial  court  discussed  these  aspects  and found that the
\ndefendants had tried to pay the excess demand of Rs.1,36,000\/- by  taking  two
\ndemand  drafts  from  the Sivakasi branch as evidenced by Ex.B.20 and Ex.B.21.
\nEx.A.121, the telegram sent by the appellant refers to the  defendants  coming
\nwith the  additional amount.  The said communication was received by the Delhi
\nbranch on 11.3.1981.  Besides, Ex.A.131, telegram refers to  one  Chockalingam
\ngoing  to  Delhi  with  a  demand  draft  for Rs.1,36,000\/- for the purpose of
\ngetting the machinery.  Even after this, the ninth defendant appears  to  have
\ndirected defendants 1 to 5 to change the demand draft to the Hyderabad branch.
\nHence,  the defendants changed the draft to the Hyderabad branch and requested
\nthe eleventh defendant to come over to Hyderabad.  The eleventh defendant,  in
\nturn, issued  a  telegram Ex.B.16.  When the telegram Ex.B.16 was shown to the
\nninth defendant,  he  had  sent  a  written  message  directing  the  eleventh
\ndefendant to contact him over telephone.  The writings were marked as Ex.B.17,
\nwherein  he  says  that the ninth defendant’s telephone has been under repair.
\nBelieving the words of the ninth  defendant,  the  second  defendant  went  to
\nHyderabad  and  was disappointed on the failure of the ninth defendant to meet
\nthem and proceeded to give a criminal complaint against the  ninth  defendant,
\nEx.B.10.   From  the above action on the part of the defendants, both prior to
\nthe taking of the loan and the subsequent failure on the  part  of  the  ninth
\ndefendant to deliver the machinery, the trial court found that defendants 1 to
\n5,  who comprised of college freshers and who are new to the business, joining
\nas partners, intended to start a business by  opening  a  printing  press  and
\ninvested a sum of Rs.1,50,000\/- as advance for the machine ordered by them and
\nbesides  payment  of Rs.1,25,000\/- to make up the total cost of the machinery,
\nhad also taken a draft for another sum of Rs.1,36,000\/- to meet the subsequent
\ndemand of the ninth defendant.  Thus, it is seen clearly that  the  machinery,
\nfor  which  the  defendants had paid the advance and an additional amount, was
\nnot delivered to them and they had  been  tossed  from  Madras  to  Delhi  and
\nSivakasi on so many occasions and this only shows that the defendants had been
\ncheated  and  defrauded  by  the  ninth  defendant  and it could not have been
\npossible without the assistance of the officials of the plaintiff bank.\n<\/p>\n
        17.  After going through the evidence and the records, we are clear in
\nour mind that though the term loan was sanctioned, as per  the  conditions  of
\nthe sanctioning  order,  the money was not given to defendants 1 to 5.  On the
\ncontrary, a draft was made ready to the  supplier  of  the  machinery  with  a
\nspecific condition that the draft should be handed over only after delivery of
\nthe machinery  and  after  the  same was loaded on the truck.  Inspite of this
\nspecific condition, the same was watered down to allow the ninth defendant  to
\nhave the draft, but at the second stage, the Delhi branch was directed to hold
\nthe encashment  of  the draft.  Even the second safeguard was given a go-by by
\nthe regional office, which  directed  the  New  Delhi  branch  to  permit  the
\nencashment of the draft even prior to the delivery of the machinery subject to
\nthe filing  of  a  mere  undertaking.  Thus, the bank has allowed not only the
\nsanctioned loan amount  of  Rs.5,48,000\/-,  but  also  including  the  sum  of
\nRs.1,27,000\/-  which  was  deposited  by  defendants 1 to 5 to make up for the
\nprice money of the machinery, to be carried to the ninth defendant.  We are of
\nthe view that the officials of the plaintiff bank acted contrary to their  own
\nconditions and were negligent in permitting the encashment of the draft on the
\nplea that the defendants had undertaken the responsibility.  As an experienced
\nbanker,  even  if  defendants  1  to 5 had undertaken the responsibility, they
\nshould not have permitted the encashment of the draft without delivery of  the
\nmachinery.   Since  the  main loan was intended to purchase the machinery, the
\nbank is not justified in giving away the money  without  the  machinery  being
\ndelivered, having  taken  the  responsibility in securing the machinery.  They
\ncannot simply wash off their hands on the mere undertaking of either the ninth
\ndefendant or defendants 1 to 5 themselves.  In this  case,  we  are  convinced
\nthat  defendants 1 to 5 were taken for a ride and all the alleged undertakings
\nand delivery receipts were fabricated for the purpose of the case, as has been
\nclearly established from the subsequent events.  The plaintiff themselves have
\nconceded that the ninth defendant had no title to the machinery at the time of
\nthe agreement with defendants 1 to 5 and they further conceded that  even  the
\nreport given by their Valuer is a fictitious one.\n<\/p>\n
        18.   As  per  Ex.A.142,  telegram  dated 1.11.1980 sent by the Madras
\noffice to the New Delhi branch, they permitted delivery of  the  draft  before
\nthe  machinery  is dismantled, but they also directed to ensure that the draft
\nshall not be encashed  till  the  machinery  is  loaded  in  the  truck.    In
\nconsonance  with  this  direction,  a letter of undertaking was taken from the
\nsecond defendant that the draft may be given on their risk and  responsibility
\nand  that they shall try to hold the draft till the machinery is loaded in the
\ntruck.  Assuming for the sake of argument that the second defendant was at New
\nDelhi on 3.11.1980, there was no further representation or  correspondence  to
\nenable  the Madras office to grant permission to the ninth defendant to encash
\nthe draft.  As per Ex.A.99 dated 5.11.1980, the telex message sent, the Madras
\noffice, without reference to any representation whatsoever, suo  motu  directs
\nthe  New Delhi office to allow the ninth defendant to encash the draft subject
\nto the filing of an undertaking.  Further, contrary to the  other  agreements,
\nthe  draft  was  delivered  on  10.11.1980,  allowed  to  be  encashed  before
\n13.11.1980 and the delivery receipt  is  said  to  have  been  given  only  on
\n16.11.1980.   The second defendant disputes the letter dated 3.11.1980 and the
\ndelivery receipt dated 16.11.1980 stating that they  were  obtained  on  false
\npretence at  the instance of the Delhi branch office.  There are no records to
\nshow the date of furnishing of the alleged receipt dated 16.11.1980  excepting
\nEx.A.132,  wherein  the  ninth defendant says that he had already delivery the
\nreceipts dated 16.11.1980.\n<\/p>\n
        19.  P.W.2, the Chief Officer of the New Delhi branch of the plaintiff
\nbank, in his cross-examination, says that the New Delhi  office  received  the
\ncommunication  of  the  Sivakasi  office  dated  24.10.1980 (Ex.A.8) directing
\ndelivery of the draft only after satisfying the title and after the  machinery
\nis  dismantled  and  put  on  truck  and  according  to  him,  this letter was
\ntransferred to his section on 3.11.1980.    However,  as  per  Ex.A.140  dated
\n3.1.1980,  the New Delhi office gave the telegram to the Madras office seeking
\nrevised instructions in reference to the encashment of the demand draft before
\ndismantling the machinery.  Obviously, P.W.2, the officer, is not speaking the
\ntruth, because the draft had been sent along with the letter dated  24.10.1980
\n(Ex.   A.68)  and thereafter, a telegram was issued on 1.11.1980, specifically
\nin reference to the New Delhi branch,  referring  to  the  insistence  of  the
\nsupplier  to  get the draft and the draft was directed to be handed over, with
\nfurther instructions that the draft shall be withheld from encashment till the
\nmachinery was loaded in the truck.\n<\/p>\n
        20.  It is admitted by P.W.1 that the report Ex.A.5 is  a  false  one.
\nIt  is  admitted by both P.W.1 and P.W.2 that the description of the machinery
\nvaries between the valuation report as well  as  the  delivery  receipt.    By
\nEx.A.113  dated 21.2.1981, a telegram issued by the Divisional Office, Madurai
\nto the New Delhi office, points out that the ninth defendant had not delivered
\nthe machinery and that the instructions dated 24.10.1980  specifically  stated
\nthat  only after satisfying the title of the machinery and after the machinery
\nis dismantled and put on truck the draft should have been delivered  and  that
\nthis appears  to have not been complied with.  They further directed to ensure
\nimmediately the despatch  of  the  machinery  and  to  take  urgent  steps  to
\nsafeguard the  bank’s  interest.    On  27.1.1981 itself, the second defendant
\nwrites to the offices at Madurai, Madras, New Delhi  and  Sivakasi  about  the
\nnon-delivery of the machinery and the evasive reply of the ninth defendant and
\nthat finally  they  had  to  report  the  matter  to  them.  However, P.W.3 is
\nignorant of this letter.  The Chief Manager, New Delhi office has admitted  of
\nhis  personal visit to the ninth defendant on 1st March, 1981 and alleges that
\nhe was avoiding to meet him despite the message.    Therefore,  the  stand  of
\nP.W.2 that he was aware of the non-delivery only on 23.2.1981 is not true.\n<\/p>\n
        21.   Ex.A.115  and Ex.A.117, the telegrams sent by the Chief Manager,
\nDivisional Office, Madurai have clearly directed that the  machinery  was  not
\ndelivered and  action  should  be taken against the ninth defendant.  Ex.A.117
\ndated 5.3.1981, which is crucial, is on the following terms :\n<\/p>\n
        “PERSONAL ATTENTION CHIEF  MANAGER  ROT  26  FEBRUARY  REGARDING  ATHI
\nOFFSET  PRINTERS,  SIVAKASI  STOP  PLEASE  REFER  R\/O  MADRAS  TELEX DATED 5TH
\nNOVEMBER TO YOU R\/O MADRAS CLEARLY STATED THAT  DRAFT  AMOUNT  SHOULD  BE  GOT
\nREFUNDED  IF  MACHINERY WAS NOT DISMANTLED AND LOADED ON TRUCK IN GOOD WORKING
\nCONDITION STOP IT APPEARS THAT AFTER DELIVERY OF DRAFT TO VENDOR, YOUR  OFFICE
\nHAVE  NOT  FOLLOWED  UP  THE  MATTER  AND  SEEN  TO  IT THAT THE MACHINERY WAS
\nDISMANTLED AND LOADED ON THE TRUCK.  ANYWAY, WE REQUEST YOU TO PERSONALLY TAKE
\nUP THE MATTER WITH ALL CONCERNED AND ARRANGE  FOR  DESPATCH  OF  MACHINERY  BY
\nAPPROVED  TRANSPORT UNDER TRANSIT INSURANCE OR FOR REFUND OF DRAFT TO SIVAKASI
\nSTOP TELEXES TO POSITION AND ACTION TAKEN.  CHIEF MANANGER, CENTRAL DIVISION.”
\n(emphasis added)<\/p>\n
P.W.2 says that he had been taking efforts to contact the ninth  defendant  to
\nget the  amount covered by the draft.  On the same lines was the telegram sent
\non 6.3.1981 (Ex.A.119) wherein P.W.2 admits that the first defendant had  been
\nvery  anxious  to  get  the machinery at any cost and he further reiterates as
\nfollows :\n<\/p>\n
        “The first defendant had been trying  their  level  best  to  get  the
\nmachinery.  They were ready with money.”\n<\/p>\n
The  Regional  Office,  Madurai  had  been  asking  the  New  Delhi  branch to
\nco-operate with the first defendant in delivering the machinery and to  settle
\nthe matter  with  the  ninth  defendant.    He  further  admits that the ninth
\ndefendant has cheated the bank.  Only long thereafter, a complaint  was  given
\nby  the  appellant  bank  both  against the ninth defendant as well as against
\ndefendants 1 to 5 dated 28.5.1981.  P.W.2 admits that in the F.I.R., they have
\nstated that the report of the Valuer is a fraudulent one.  While  defendant  1
\nto  5 had been making complaints and reports to the bank and they had admitted
\nthe non-delivery and requested to take action against the ninth defendant, the
\nSivakasi branch updates a letter from the first defendant where they say  that
\nthey are  negotiating  for  delivery of the machinery.  They have also made an
\ninterpolation in the letter to the effect that they  undertake  to  repay  the
\nbank, on  demand,  the  entire  dues  payable  to  the  bank.  This is another
\ninstance to show that the bank is trying to be protective of their interest at
\nany cost without caring for the interest of defendants 1 to 5.\n<\/p>\n
        22.  When the suit was filed on 28.4.1982, the plaintiffs  were  fully
\naware  that the machinery was not delivered to defendants 1 to 5 and that they
\nhad been cheated by the ninth defendant and that the bank is also  responsible
\nfor the situation.  However, it appears that a stand is taken by the bank that
\ndefendants 1 to 5 have colluded with the ninth defendant in order to cheat the
\nbank and  on  that  basis  the suit has been proceeded with.  The stand of the
\nappellant bank is totally at variance with the facts and circumstances of  the
\ncase.   As  rightly  pointed out by the trial court, defendants 1 to 5 are the
\nvictims and they have been deprived of a  sum  of  Rs.2,75,000\/-  due  to  the
\nnegligence on  the  part  of  the  appellant  bank.   The communication of the
\nregional branch at Madras dated 5.11.1980 has thrown  to  the  winds  all  the
\nsafety  precautions  that can be expected of by allowing the encashment of the
\ndraft even before loading of the machinery on a mere  undertaking.    All  the
\nsubsequent actions by getting an agreement would only show that the appellants
\nhave taken up the responsibility and have bound themselves and were indirectly
\nheading for  a  litigation  after  letting  the  bird  leave  the cage.  It is
\nununderstandable to us as to why the  bank  should  be  satisfied  by  a  mere
\nassurance or undertaking drafted by an advocate and what was the difficulty to
\ninsist  that  they should not encash the draft unless the machinery was loaded
\nin the truck.  The conduct of the bank is beyond one’s comprehension.    Their
\nexplanation  that  the  defendants have given an undertaking of responsibility
\ndoes not improve their case any further.  In such  a  case,  they  could  have
\nstraight  away  issued  the  draft  to  the  defendants  with  their  risk and
\nresponsibility to procure the machinery, especially when the  bank  amount  is
\nsecured  by hypothecation and mortgage by deposit of title deeds of defendants
\n1 to 5 and 6 to 8.  Having from the very beginning  decided  to  purchase  the
\nmachinery  by directly giving the draft to the seller, they have changed their
\ncourse of action by allowing the encashment of the draft without the machinery
\nbeing delivered.  From the evidence, it  is  clear  that  the  defendants  are
\nvictims  and  they  are  the sufferers and losers because of the action on the
\npart of the appellant bank.  The recovery of the amount from  the  defendants,
\ntherefore,  does  not arise inasmuch as there was no delivery of the machinery
\nby the ninth defendant.\n<\/p>\n
        23.  Therefore, rightly so, the prayer was restricted to a declaration
\nthat the appellant was entitled for payment of Rs.6,44,055.14  with  interest.
\nThe  trial  court,  in our view, has considered all the voluminous documentary
\nand oral evidence in the proper perspective  and  has  rightly  dismissed  the
\nclaim  of  the  appellant  as  against  the  defendants  excepting  the  ninth
\ndefendant.  In view of our finding that the defendants have  no  liability  to
\npay  the amount, the question whether there was an alteration of the terms and
\nconditions of the security and whether  the  guarantors  are  liable  and  the
\nguarantee is enforceable does not arise for consideration.\n<\/p>\n
        24.   For  all  these  reasons, the appeal fails and it is accordingly
\ndismissed with costs.\n<\/p>\n
Index :  No                                     (P.S.M.,J.) (K.S.,J.)\nInternet :  Yes                                 19..06..2002.\nab\n\nTo\n\n1.  The Subordinate Judge,\nSrivilliputhur\n(With Records, if any).\n\n2.  The Record Keeper,\nV.R.  Section,\nHigh Court,\nChennai.\n\nP.  SHANMUGAM, J.\nand\nK.  SAMPATH, J.\n\nJudgment in\nA.S.  No.1288 of 1986<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Central Bank Of India vs M\/S. Athi Offset Printers on 19 June, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19\/06\/2002 Coram The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mr. Justice K. SAMPATH A.S. No.1288 of 1986 Central Bank of India, Divisional Office, through its Chief Manager, Good […]<\/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":[8,13],"tags":[],"class_list":["post-268344","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nCentral Bank Of India vs M\/S. 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