Decided on March 07,2006



K.J.Paratwar, - (1.) THIS legal battle between the Bankers for Rs. 12,21,974.31 with interest arises in the following manner.
(2.) One Dalal K. Mangaldas had current account with the applicant's Bhat Bazar Branch. On 3.4.1993 a cheque No. 842033 for Rs. 11,29,889.20 drawn by him favouring G.B. and Co. was deposited for the clearance through the defendant No. 2 with the applicant. It was returned since dishonoured as the account did not have sufficient funds. On 12.4.1993, the said cheque was presented for second time again through the defendant No. 2. This time also the cheque was returned to the drawer since sufficient funds were not in the account. The cheque came to be again presented on 20.5.1993 but this time through the defendant No. 1. The account did not have sufficient balance which was why it was returned on 25.5.1993 by defendant No. 2 with covering memo dated 22.5.1993 stating that it had not presented the cheque. In the meanwhile the applicant's account with the clearing Bank was debited on assumption that the cheque was cleared and the defendant No. 1 Bank made payment to G.B. and Co. The applicant Bank requested both the defendant Banks to make payments but, they disowned their liability. The applicant has averred that on inquiries it was informed that the cheque was presented by the 1st defendant. The return by the applicant Bank of the cheque to the 2nd defendant is said to be due to negligence on the part of both the defendants. The negligence of 2nd defendant was non-cancellation of its stamps probably while returning the dishonoured cheque to G.B. & Co. The 1st defendant's negligence was also that it did not cancel the defendant No. 2's stamps while presenting the cheque. Moreover, it had not affixed encoding/encoding was not visible. Had the defendants not been negligent as above, the applicant would not have returned the cheque to the 2nd defendant and the ensuring payment on presumption that the cheque is cleared would not have been made. Therefore, this O.A.
(3.) THE defendant No. 1 in written statement (Exh. 16) has at the outset raised objection to subject wise jurisdiction of this Tribunal on the ground that the claim does not constitute debt within the meaning of Section 2(g) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993. On this ground the 1st defendant has also made application (Exh. 11) for re-transferring the O.A. to the Hon'ble High Court of Judicature at Bombay on aforesaid grounds. THE O.A. is also said to be bad for non-joinder of Dalal K. Mangaldas, the drawer of the cheque. This defendant admits to have presented the cheque for collection. THE contention on merit is that the applicant Bank is making it as scapegoat for the negligence, wrong doings and laches on the part of its officers. THE defendant has then contended that the defendant No. 2 was negligent in returning the cheque without cancelling the stamps. THE further contention is that this defendant had put its encoding on the reverse said of the cheque which the applicant Bank failed in noticing. It is stated that since nothing was heard from the applicant Bank within the period as stipulated for collection (by clearing house) the defendant assumed that the cheque was honoured and consequently gave credit to the account of G.B. & Co. who withdrew the same.;

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