- (1.)This second appeal has arisen from the judgment and decree of the learned Subordinate Judge, Namakkal made in A.S. No. 27/88 dated 18-8-1989 setting aside the judgment and decree of the learned District Munsif, Rasipuram made in O.S. No. 404/85 dated 24-8-1987.
(2.)The respondent herein filed a suit seeking for a money decree for a sum of Rs.10,500/- with subsequent interest with the following averments. The plaintiff, a customer of the defendant Bank, was having a current account with the defendant and the present folio Number is 156. The plaintiff advanced a loan of Rs.10,000/- to one Mr. G. Subramanian, Proprietor of Viji Gas Service, Rasipuram on 11-3-1985. G. Subra-maniam issued a cheque of State Bank of India, Rasipuram Branch bearing No. 0630522 to the plaintiff for Rs.10,000/- dated 10-4-1985 towards his loan. The said cheque was presented on 10-4-1985 with the defendant bank for collection and the amount was collected and credited into the plaintiff's account. When the plaintiff presented a cheque on 12-4-1985 to withdraw the said sum of Rs.10,000/-, the defendant Bank had also paid the same. The plaintiff credited the said sum towards the loan account of G. Subramaniam and returned back all the documents to him after closing his loan account. On 16-4-1985, the defendant bank informed the plaintiff that the said cheque issued by G. Subramaniam had been returned without collection, and without prior intimation to the plaintiff, they debited Rs.10,000/- in the plaintiff's account under a debit note dated 16-4-1985, which was issued to the plaintiff on 18-4-1985, thereby the defendant Bank had withheld the plaintiff's money illegally and unlawfully. The defendant has no right to debit the said sum in the plaintiff's account, as they had already credited the said amount. On 18-4-1985 the plaintiff complained the matter to the higher authorities of the defendant. A reply dated 20-4-1985 was sent by the defendant Bank's Customer Service at Madras. As there was no further response, the plaintiff issued a legal notice on 4-7-1985. On 31-7-1985, the defendant sent a reply stating that the matter had received the attention of their Head Office and on hearing from them they would reply. The defendant neither sent any reply nor had taken any steps to credit the amount into the plaintiff's account. The defendant had given a reply on 12-10-1985 with false allegations. There was no mistake or negligence on the part of the plaintiff. The defendant cannot withhold the plaintiff's money and cannot escape from the consequences by simply shifting the burden on the plaintiff. Hence the defendant was liable to return the said sum of Rs.10,000/-.
(3.)The defendant Bank filed a written statement and additional written statement contending that there is no bank by name "The Indian Bank" and unless the plaint is suitably amended, it is not maintainable as such; that as per the contract, the plaintiff has to sue the correct person answerable before the Court of law; that the bank does not know whether the plaintiff advanced a sum of Rs.10,000/- to one G. Subramaniam; that the plaintiff must prove that he has lent any amount to him; that the plaintiff took undue advantage of a concession shown to a customer by Indian Bank and has chosen to litigate; that the plaintiff took advantage of business practice prevailing among the banks in giving credit to cheques taken in clearing in anticipation that they would be paid by the paying banks; that the suit was bad for non-joinder of M/s. Viji Gas Service's Proprietor who had issued the cheque, as a party to the suit; that the defendant was always at liberty to reverse the clearing credit if the cheque taken up for collection was dishonoured by the paying bank and the defendant who has Banker's lien on customer's money had rightly exercised the right in debiting the customer's account since the cheque in question was dishonoured by the paying bank; that the defendant had already issued a suitable reply notice to the suit notice; that the statement given by Mr. Ravi, Managing Partner of the plaintiff's firm before the Inspector of Branches of Indian Bank by name Mr. P.V. Krishnamoorthy during the investigation of this case would lend support to the defendant's case; that when the cheque in question was presented before Rasipuram Branch of Indian Bank, it was represented by the partner of the plaintiff that since the cheque was a local cheque and issued by a dealer of Gas Company having sound business, it would be surely encashed; that in order to maintain a cordial relationship between the bank and the customer, the Bank obliged to the plaintiff with an adjustment of Rs.10,000/- pending realisation of the proceeds; that immediately on coming to know about the dishonour of the cheque on 15-4-1985, the bank had exercised its right in lien and debited Rs. 10,000/- from the account of the plaintiff; and thus no negligence could be attributed to the defendant; that the plaintiff could not have any grouse over the defendant bank and hence the suit was liable to be dismissed. It is also contended that the former Peon of the Rasipuram Branch of Indian Bank by name T. M. Periasamy has acted in collusion with the plaintiff in concealing the return of the cheque by State Bank of India on 10-4-1985; in order to help the plaintiff in getting the credit and withdrawing the amount on 12-4-1985; that the said peon was on leave on 12-4-1985; that he brought the return of the cheque to the knowledge of his superiors only on 16-4-1985 and that he had been dismissed from service in September 1985 on charges of fraud in connection with some other transaction.