- (1.) This is a suit under O.XXXVII of the Civil P.C., inter alia, praying for a final judgment and decree for a sum of Rs. 32, 34, 740, 46 p. in favour of the plaintiff against the defendant 2 less a sum of Rs. 1, 50,000/- paid by the defendant 1 after the institution of the suit and for other reliefs. The plaintiff's case is that in or about June 1983 at the request of the defendant 1 the plaintiff agreed to lend and advance a sum of Rs. 25 lakhs repayable by the said defendant on demand after 90 days. The said loan and advance was made by the plaintiff to the defendant 1 as and by way of temporary accommodation for the purpose of business of the defendant 1 after duly deducting the interest for 90 days on the said sum of Rs. 25 lakhs at the rate of 18% per annum. The plaintiff paid the said sum by Pay Slip/Pay Order No. 230954 dt. 01-06-83 issued by the Bank of India, Calcutta Main Branch drawn in favour of the Punjab National Bank, A/c. Sri Ambika Jute Mills Ltd., dt. 2nd June, 1983 a sum of Rs. 23,84,375/-. The defendant 1 in acknowledgement of the said loan and advance executed three several hoondies dated 1st June 1983, two for Rs. 10 lakhs each and one for Rs. 5 lakhs and the due date of the said three several hoondies was lst June 1983. The said three hoondies were duly presented to the defendant 2, Punjab National Bank, for payment through Sri N. C. Saha, Notary public of Premises No. 18, Old Post Office Street, Calcutta on 2nd Sept., 1983, but the defendants, Sri Ambika Jute Mills Ltd. and the defendant 2, Punjab National Bank, failed and neglected to pay the said sum of Rs. 25 lakhs and the said three hoondies were dishonoured by non-payment. Each of the defendants was duly given notice of such dishonour. Between Sept., 1983 and April 1986, the defendant 1 from time to time made payment of a sum of Rs. 6,25,000/- to the plaintiff and alter giving due credit of the sum of Rs. 6,25,000/- the plaintiff is entitled from each of the defendants to a sum of Rs.32,34,740.40 p. The particulars whereof are as follows : JUDGEMENT_288_AIR(CAL)_1989Html1.htm The plaintiffs further case is that the defendant 2, Punjab National Bank, accepted the said hoondies as a co-acceptor. The plaintiffs have annexed the xerox copies of the said three hoondies with the plaint.
(2.) The defendant 2, Punjab National Bank, filed affidavit-in-opposition, The case of the defendant 2 is that on June 2, 1983 one Radhakrishan More as Director of the defendant 1, accepted three several hoondies on behalf of the defendant 1 and the said hoondies were co-accepted by one Sri R. Prasad, Manager, Punjab National Bank, Shyambazar Branch with the stamp impression of the said branch of the defendant 2 Bank on 2nd June, 1983. It is submitted by the learned advocate appearing on behalf of the defendant 2 that Sri R. Prasad signed the said hoondies in furtherance and pursuance of the conspiracy between the plaintiff and the defendant 1 and the said Sri R. Prasad. That on 2nd June, 1983 a Current Account No. 1199 was opened at the Shyambazar Branch of the defendant 2 Bank by its three Directors, viz. Sri Radhakrishan More, (2) Dhanraj Bagaria and (3) Sri Narayan Prasad Bagaria, in the name of the defendant 1 Sri Ambika Jute Mills Ltd. and a sum of Rs. 2100/- was deposited by cash in the said Current Account. On 3rd June, 1983 a draft bearing No. 230954 dt. 1st June, 1983 for a sum of Rs. 23,84,375/- was deposited and on 4th June, 1983 the proceeds thereof were credited to the said current account of the defendant 1. The co-acceptance made by Sri R. Prasad, the Manager of the defendant 2, Bank, was beyond his power and authority and without any sanction obtained from the competent authority and the same was done by the Manager not in the usual course of business of the defendant 2 Bank. It is further submitted by the learned Advocate for the defendant 2 that the defendant 2 was not a party to the said three hoondies and the same were without any consideration. The said co-acceptance was made by Sri R. Prasad in single signature of his own, with branch rubber stamp of the defendant 2 Bank without any margin and/or commission contrary to and or in violation of the rules of the bank and was without the authority of the bank. When the Bank came to know of the wrongful and fraudulent act and the acts or omission of Sri R. Prasad, he was charge-sheeted and 'disciplinary' proceedings were commenced against him and ultimately Sri R. Prasad was dismissed. It is submitted by Mr. Bhabra, learned advocate appearing on behalf of the defendant 2, that the defendant 2 bank neither was the drawer, nor the drawee and there is no provision under the Negotiable Instruments Act as co-acceptor. The three hoondies in suit are void and not enforceable in law, Mr. Bhabra referred to the several interpolations in the three hoondies and submitted that the plaintiff has not filed the original hoondies nor have given any inspection of the original hoondies to the defendant 2 Bank and as such, the suit is not maintainable in law.
(3.) Mr. Bimal chatterjee, learned advocate appearing on behalf of the plaintiff, produced a letter showing that the inspection of the three hoondies were given to the defendant 2 Bank and when the letter was produced, Mr. Bhabra conceded that his client had the inspection of the three hoondies. However, the three original hoondies were produced by Mr. Chatterjee on behalf of the plaintiff at the time of the hearing.;