SBI v. Shri Rajesh Chandra

RAJIV SAHAI ENDLAW, J. JANUARY 07, 2016 bs (corrected & released on 15th January, 2016)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 7th January, 2016. + STATE BANK OF INDIA ..... Appellant Through: Mr. R.P. Vats, Adv. Versus SHRI RAJESH CHANDRA ..... Respondent Through: Mrs. Mridula Ray, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment dated 21st October, 2008 of the Court of Sh. Rajiv Mehra, Additional District Judge (ADJ), Delhi decreeing Suit No.51/2004 filed by the respondent/plaintiff against the appellant/defendant State Bank of India (SBI) in the sum of Rs.17,19,796/- along with interest pendente lite and future till realisation of the amount at the rate of 12% per annum along with cost of the suit. 2. Notice of the appeal was issued and vide ex-parte ad-interim order dated 30th March, 2009, subject to the appellant/defendant SBI depositing the principal amount in the form of Fixed Deposit Receipt (FDR), execution of the impugned judgment and decree was stayed. 3. Thereafter, vide order dated 11th May, 2009 the appeal was admitted for hearing and Trial Court record requisitioned. On the application of the respondent/plaintiff for early hearing, vide order dated 23rd September, 2015, the appeal was taken out of the category of "Regulars" and ordered to be listed today for hearing. 4. The counsel for the appellant/defendant SBI has been heard. Need to call upon the counsel for the respondent/plaintiff to address arguments has not arisen. 5. The claim of the respondent/plaintiff against the appellant/defendant SBI in the suit from which appeal arises was on the basis of the amounts wrongfully debited by the appellant/defendant SBI from the current account of the respondent/plaintiff on the basis of cheques, though drawn out of the cheque books issued by the appellant/defendant SBI to the respondent/plaintiff but not bearing the signatures of the respondent/plaintiff. 6. It is no longer res integra that in such a situation the Bank is liable to refund the amounts debited to the customer"s account on the basis of cheques not bearing the signatures of the customer. Reference in this regard can be made to Canara Bank Vs. Canara Sales Corporation (1987) 2 SCC 666. 7. In the present case, the appellant/defendant SBI did not contest the fact that the cheques, amount debited whereof was sought to be recovered in the suit, were not bearing the signatures of the account holder. The appellant/defendant SBI contested the suit averring the claim in the suit to be barred by time and further averring that the respondent/plaintiff had no cause of action for the suit. Accordingly, vide order dated 28th May, 2004, only the following issues were struck in the suit: "1. Whether the claim of the plaintiff is barred by limitation? 2. Whether there was cause of action for the plaintiff to institute the present suit against the defendant? 3. To what amount if any, the plaintiff is entitled to recover from the defendant? 4. Relief." 8. Needless to state, the learned ADJ has decided all the issues aforesaid in favour of the respondent/plaintiff and hence decreed the suit. 9. The counsel for the appellant/defendant SBI has today raised only two arguments. Firstly, it is contended that since the respondent/plaintiff is a partnership firm and the account was in the name of the partnership firm, the suit was not compliant with Section 69 of the Indian Partnership Act, 1932 and the plaint was liable to be rejected on this ground alone. The only other contention is that the learned ADJ has wrongly held the suit claim to be within time. 10. As far as the first of the aforesaid contentions is concerned, not finding any issue thereon, it has at the outset been enquired from the counsel for the appellant/defendant SBI, whether any such plea of the suit being barred by Section 69 supra was taken in the written statement and / or at any other time during the pendency of the suit. 11. The counsel for the appellant/defendant SBI has f