City Union Bank Ltd. Vs Karnataka Sahakari Sakkare

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.01.2020 PASSED IN O.S.NO.20/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HANGAL, DECREEING THE SUIT FILED FOR RECOVERY OF MONEY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 30.06.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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The defendants No.2 and 3 in O.S. No.20/2013 on the file of the Addl. Senior Civil Judge and JMFC., Hanagal, (henceforth referred to as ‘the Trial Court’) filed this regular first appeal challenging the judgment and decree dated 27.01.2020 by which the suit in O.S. No.20/2013 was decreed with cost and ordered that plaintiff is entitled to recover an amount of Rs.20,00,000/- from defendants No.1 to 3 with interest @18%

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per annum from 15.02.2008 till its actual realization. Further, it

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is ordered that defendants No.1 to 3 are jointly and severally liable to pay the amount to the plaintiff within 3 months from the date of judgment, failing which, the plaintiff is at liberty to recover amount along with interest from the defendants by following due procedure of law.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court.

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Brief facts, leading raise to the filing of this appeal are as follows:

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The plaintiff filed the suit for recovery of Rs.20,00,000/from defendants No.1 to 3 with interest @ 18% per annum. The plaintiff is a Co-operative Society running a Sugar Factory in the name and style of Karnataka Sahakari Sakkare Karkane Niyamita (hereinafter referred to as ‘plaintiff Society’ for short). The Commissioner for Cane Development and Director of Sugar, Bengaluru being the competent authority, by its order dated 22.11.2007, superseded the committee of management of plaintiff Society and appointed the District Commissioner of Haveri as Administrator and the Deputy Registrar of

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Co-operative Society, Haveri as a Managing Director of the plaintiff’s Society. Hence, they both were administering the plaintiff Society from 22.11.2007.

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The plaintiff Society was an assessee under the provisions of Karnataka Commercial Tax and was to pay purchase tax on purchase of sugarcane from farmers for crushing during the year 1990-91 to 1995-96. The plaintiff Society had paid excess tax of Rs.45,76,981/- to Commercial Tax Department. As such, the plaintiff preferred an appeal before the Karnataka Appellate Tribunal, Bangalore seeking refund of excess tax paid. The Karnataka Appellate Tribunal allowed the claim of plaintiff and passed an order for refund of the said amount to the plaintiff by the Commercial Tax Department. Accordingly, Deputy Commissioner, Commercial Tax, Dharwad by his letter dated 01.02.2008 arranged for refund of Rs.45,76,981/- to the plaintiff’s Society.

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The defendant No.1 was the elected President of plaintiff Society till 22.11.2007 i.e., before superseding the committee of management. The defendant No.1 knowingfully that, he is no authorized to manage the affairs of the plaintiff Society, with an ulterior motive, he received the refund order

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with voucher dated 01.02.2008 issued by the Deputy Commissioner, Commercial Tax and approached defendant No.2- the Manager of defendant No.3 Bank to open an account in the name of plaintiff Society. The defendant No.2 without properly verifying the authenticity of documents produced by defendant No.1, including the Board resolution, allowed a current account bearing No.88997 to be opened on 12.02.2008 in the name of Karnataka Sahakari Sakkare Karkane Niyamita. Later, defendant No.1 submitted the refund payment order of Rs.45,76,981/-. The defendant No.2 cleared the same on 14.02.2008 and defendant No.1 withdrew a sum of Rs.20,00,000/- by cash on 15.02.2008 by presenting a self drawn cheque.

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The audit of the plaintiff Society for the year 200708 and 2008-09 was finalized on 29.06.2010. The Auditor reported a shortfall of Rs.20,00,000/- out of the amount refunded by the Tax Department. It was thereafter found that defendant No.1 by opening an account in defendant No.3 Bank, withdrew the said amount. As such, the auditor of plaintiff’s Society advised to recover the said amount from defendants jointly.

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Accordingly, the plaintiff Society got issued a notice

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to defendants on 03.06.2012 calling upon them to pay Rs.20,00,000/- with interest from 16.02.2008 till the date of payment. However the defendants neither replied to the notice nor made the payment. Hence, left with no other option, the plaintiff Society filed the suit in O.S. No.20/2013 against the defendants for recovery of the said amount.

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In response to the suit summons, defendants No.2 and 3 entered their appearance through their respective counsel. However, defendant No.1 remained absent and was placed ex-parte before the trial Court. The defendant No.2 filed

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a written statement contending that he was in no way connected to the illegal act of defendant No.1 in withdrawing the amount from the plaintiff Society’s account for unlawful gain. Further, he contended, defendant No.1 who claimed to be the Chairman of plaintiff Society held the refund order from the Department of Commercial Tax and accordingly opened an account in defendant No.3-Bank after completing all the formalities. He claimed that when the account was opened, he obtained resolution of the plaintiff’s Society dated 02.06.2006, the meeting held on 12.01.2008, the letter of the plaintiff

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Society dated 01.02.2008 and the photographs with specimen signature card etc., from defendant No.1. He further stated that after withdrawal of amount by defendant No.1, he grew suspicious and went to Haveri to meet the Managing Director of the plaintiff Society in person on 20.02.2008 and met one H.Y.Gaddanakeri and came to know that the defendant No.1 played fraud on the defendant No.3-Bank by forging the documents. Hence, he instructed the Managing Director of the plaintiff Society to lodge a complaint against defendant No.1. Accordingly, he lodged a complaint before Haveri Rural Police and the said Police registered FIR against defendant No.1, laid charge sheet against him. Hence, according to defendant No.2, he discharged his duty as a Manager of the Bank as per law. Accordingly, he prayed to dismiss the suit against him.

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Defendant No.3 filed the written statement by contending that the suit is barred by limitation and not maintainable against the Bank. Further, the original refund order issued by the Deputy Commissioner of Commercial Tax dated 01.02.2008 addressed to Manager of SBI, Dharwad Branch produced before defendant No.3-Bank by defendant No.1 who acted as a Managing Director of plaintiff Society by

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placing the resolution of the Society and all other legal

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documents, as such, there were no reasons to disbelieve defendant No.1. Further, defendants No.2 and 3 showed their bonafide by instructing the Managing Director of the plaintiff Society to lodge a complaint against defendant No.1. Accordingly, defendant No.3 prayed to dismiss the suit.

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On the basis of above pleadings, the Trial Court framed the following issues:

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“ ISSUES

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1. Whether plaintiff proves that the defendant No.1 has made misappropriation in collusion with the defendant No.2 and 3?

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2. Whether the plaintiff further proves that all the defendants are jointly and severally liable to pay the misappropriated amount of Rs.20 lakhs, to it?

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3. Whether the suit of the plaintiff is bad for mis-jonder and non jonder of necessary parties?

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4. Whether the plaintiff further proves that it is entitle for recovery for amount of Rs.20 lakhs from the defendant No.1 to 3 along with the interest at the rate of 18% p.a from the date of misappropriation till its realization i.e. from 15.02.2008 till its realization?

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5. To what order or decree?”

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In order to prove the case of plaintiff, the plaintiff

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examined himself as PW.1 and marked Exs.P1 to P26. The defendant No.2 examined himself as DW.1 and marked Ex.D1.

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After assessing the oral and documentary evidence,

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the Trial Court answered issues No.1, 2 and 4 in the affirmative; issue No.3 in the negative and issue No.5 as per final order and decreed the suit against the defendants as under:

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“ ORDER

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Suit of the plaintiff is hereby decreed with costs.

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The plaintiff is entitled to recover an amount of Rs.20,00,000/- from the defendant No.1 to 3 with interest at the rate of 18% per annum from 15.02.2008 till its actual realization.

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The defendant No.1 to 3 are jointly andseverally liable to pay amount to the plaintiff as mentioned above along with interest thereon within 3 months from the date of this order, failing which the plaintiff is at liberty to recover amount along with interest thereon as mentioned above from the defendants by following due procedure known to law.

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Draw decree accordingly”

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Challenging the said judgment and decree, defendants

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No.2 and 3 are before this Court.

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We have heard the learned counsel Sri. Suresh S.

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Gundi for the appellants, learned counsel Sri. Aravind D Kulkarni and Sri. L.M Kurahatti for the respondent No.1 and learned counsel Sri. Shrikant T. Patil and Sri. Rohit S. Patil for respondent No.2.

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The learned counsel appearing for the appellants/defendants No.2 and 3 vehemently contended that the Trial Court grossly erred while passing the impugned judgment and decree without appreciating the pleadings and evidence in the right perspective. He contended that the plaintiff Society utterly failed to prove that defendant No.2 opened an account in the name of Karnataka Sahakari Sakkare Karkane Niyamita in defendant No.3 Bank with an ulterior motive either to support defendant No.1 to make unlawful gain or to draw any benefit there from. As such, the trial Court erred in answering issues No.1, 2 and 4 in the affirmative. According to the learned counsel, the auditor of the plaintiff Society gave a baseless and unreliable report that defendant No.2 without proper verification of name and signature of Managing Director with ID proof blindly opened an account and as such, defendants No.2 and 3 are jointly and severally liable to pay

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Rs.20,00,000/- is totally not acceptable; while opening the account in defendant No.3-Bank, defendant No.1 submitted the photo of Hanumathappa Yallappa Gaddanakeri in the voter ID which is the same photo of Managing Director-H.Y.Gaddanakeri affixed on the account opening form. Further, the photo of Shankarappagouda parappagouda in Voter ID card is also matching to the photo of the account officer/secretary affixed in the opening form. Additionally, defendant No.2 also verified the signature of Managing Director and Accounts officer affixed in the account opening form. Admittedly, the Bank account was opened in the name of Society and not in the name of Managing Director i.e., defendant No.1. Further, there is no bar for any person or society from opening an account in any other District than the place of its own District. Moreover, as per the bylaws of plaintiff’s Society at appendix which is a part of audit report, the plaintiff society’s area of operation is Haveri and Dharwad District. He further contended that the total amount deposited in the Bank by defendant No.1 was Rs.45,75,981/-. However, the defendant No.1 withdrew only Rs.20,00,000/thereafter. Immediately defendant No.2 made his sincere attempt to verify the details of the plaintiffs’ Society at Haveri by personally visiting the Society. Though there is a delay in

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visiting the plaintiff’s society by defendant No.2, the same was due to non availability of the other staff in the defendant No.3Bank. After verifying with the plaintiff’s Society, defendant No.2 came to know about the fraud played by defendant No.1 and as such, immediately he stopped the withdrawal of the remaining amount by defendant No.1. Further, at the instance of defendant No.2, the then Managing Director-H.Y.Gaddanakeri lodged a Police complaint against defendant No.1 on 24.02.2008 before Haveri Rural Police. The complaint lodged by the Managing Director clearly reveals that defendant No.1 is sole responsible for the cheating and fraud committed to the plaintiff Society. The negligence of defendants No.2 and 3 in the illegal act of defendant No.1 nowhere stated in the complaint or in the charge sheet filed by the Police. In such circumstance, at any stretch of imagination, it cannot be said that defendant Nos.2 and 3 are vicariously liable for the act committed by defendant No.1 and they are jointly and severally liable to made good the claim of plaintiff Society.

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During the course of argument, the learned counsel for the appellants filed an affidavit along with 3 documents i.e., the guidelines in respect of KYC (Know Your Customer) dated

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16.08.2002, the subsequent guidelines dated 30.06.2008 and

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submitted that there was no restriction to open an current account to the plaintiff Society in any scheduled Bank at Hubballi and also there is no restriction for withdrawal of cash of Rs.20,00,000/- by self cheque and there is no limit to withdraw the cash. Hence, according to the learned counsel, the trial Court erred in passing the impugned judgment and decree by directing defendants No.2 and 3 to make the payment to the plaintiff Society jointly and severally with defendant No.1. Accordingly, he prays to allow the appeal.

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Per Contra , the learned counsel for the plaintiff contended that the trial Court, on meticulously examining the comprehensive evidence and documents placed before it, passed a well-reasoned judgment which does not call for any interference. According to the learned counsel, defendant No.2 has not followed the due procedure as per the Bank norms, while opening the account in the Bank by defendant No.1. According to the learned counsel, as admitted by defendant No.2 in his cross-examination, though he is duty bound to visit the plaintiff Society before opening an account, he failed to do so and he visited the plaintiff Society after defendant No.1

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withdrew Rs.20,00,000/-. This aspect of the matter clearly established that defendant No.2 was negligent while opening an account and disbursing Rs.20,00,000/- to defendant No.1. He also contended that the audit report-Ex.P4 clearly reveals, while opening the account, defendant No.2 has not properly examined/verified the ID proof, specimen signature and the documents produced by defendant No.1 i.e., the Voter ID and the specimen signature of the Managing Director and the accountant of plaintiff Society, which were differing each other. Despite, defendant No.2 opened an account without enquiry and proper verification in the plaintiff Society in person. He further contended that though FIR registered against defendant No.1 alone, for the forgery and cheating committed by him, however, the negligence on the part of defendants No.2 and 3 also attracts civil liability, as such they are liable to make good the plaintiff Society jointly and severally with defendant No.1. These aspects were rightly appreciated by the Trial Court, as such; interference in the impugned judgment and decree does not call for by this Court. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the parties

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and on careful perusal of the evidence placed before us, the points that arise for our consideration are:

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1. “Whether the plaintiff Society proves that defendant No.2 has not taken sufficient care while opening the account of defendant No.1 in defendant No.3 Bank and was not diligent while disbursing the amount to defendant No.1?

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2. Whether the defendants No.1 and 2 are jointly and severally liable to pay the decreetal amount to the plaintiff Society?”

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The points No.1 and 2 are interlinked with each

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other and hence are taken up together for discussion. As could be gathered from records, the plaintiff Society is a Co-operative Society. The Commissioner for Cane Development and Director of Sugar, Bangalore being the competent authority superseded the committee of management of plaintiff Society vide order dated 22.11.2007 and appointed the Administrator and Deputy Registrar to the said Society. Since then, the Administrator and Managing Director are administering the affairs of plaintiff Society. On perusal of cross-examination of DW.1 i.e.,

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defendant No.2, he categorically admitted that, he worked as a

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Manager in defendant No.3 Bank from the year 2007. He deposed that he was aware that defendant No.1 was the Chairman of plaintiff Society before 22.11.2007 and on 22.11.2007 the plaintiff Society was superseded, resultantly, the Chairman and all the members of plaintiff Society lost their power and the Administrator was appointed to the Society. DW.1 further admitted that, while opening the account of any registered society, as a Manager of the Bank, he is bound to examine the documents to ascertain, whether the person who intends to open the account was the authorized person of the society or not. Additionally, to open the account in the name of Society, the Bank authorities are bound to peruse the bylaws of the society and the resolution passed by the Society authorizing the opening of an account. The defendant No.2 also admitted in his cross-examination that, if the society is registered under the Co-operative Societies Act, before opening the account in any Bank the audit report of the society has to be verified. However, the defendant No.2 has not properly verified any of the documents before opening the account of plaintiff Society in defendant No.3 Bank. Moreover, defendant No.2 also failed to send the resolution and specimen signature furnished in the

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account opening form to the concerned Society and to obtain confirmation from the Society. As admitted by DW.1, there is a difference between ID proof, specimen signature of the Managing Director and the accountant of plaintiff Society furnished by defendant No.1 when he opened the account. In such circumstance, defendant No.2 being a responsible officer of the defendant No.3-Bank is duty bound to scrutinize all the documents meticulously before opening the account and disbursing the amount to defendant No.1. Besides, defendant No.3 Bank is situated far away from plaintiff Society. In such circumstance, after knowing fully well the fact that the plaintiff Society was superseded as on 22.11.2007, defendant No.2 ought to have verified the documents before opening the account and releasing a huge sum of Rs.20,00,000/- by cash to defendant No.1 immediately within two days of opening the account. On perusal of the evidence of defendant No.2, it is definitely established that defendant No.2 was negligent in his lawful duty while opening the account and releasing the amount. The guidelines issued by the Reserve Bank of India vide Circular No.DBOD.AML.BC.18/14.01.001/2002-03 dated 16.08.2002 on ‘KNOW YOUR CUSTOMER’ norms and ‘CASH TRANSACTION’ cited in Paragraphs 2.2 (i) and 4 (ii) as under:

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“2.2 Customer identification

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(i) The objectives of the KYC framework should be two fold, (i) to ensure appropriate customer identification and (ii) to monitor transactions of a suspicious nature. Banks should obtain all information necessary to establish the identity/legal existence of each new customer, based preferably on disclosures by customers themselves. Typically easy means of establishing identity would be documents such as passport, driving license etc. However where such documents are not available, verification by existing account holders or introduction by a person known to the bank may suffice. It should be ensured that the procedure adopted does not lead to denial of access to the general public for banking services.

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4. Ceiling and monitoring of cash transactions

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(ii) The banks are required to keep a close watch of cash withdrawals and deposits for Rs.10 lakhs and above in deposit, cash credit or overdraft accounts and keep record of details of these large cash transactions in a separate register. (Circular DBOD.BP.BC.57/21.01.001/95 dated May 4,1995).”

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The defendant No.3 being the Bank in which the

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defendant No.1 opened the account through defendant No.2-

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the Manager and withdrew the huge amount illegally due to the negligence of defendant No.2, as discussed supra, as per the circular of the Reserve Bank of India, defendant No.3 is also

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vicariously liable for the act of defendant No.2. As rightly contended by the learned counsel for the plaintiff, though defendants No.2 and 3 are not arraigned as accused in the criminal case filed by the Managing Director of the plaintiff Society for the fraudulent act committed by defendant No.1, however, the civil liability is attracted against defendants No.2 and 3 for the negligent act committed by defendant No.2. The documents placed by learned counsel for the appellants no way aid the defendants case, as defendant No.2 himself admitted that he did not follow the procedure established under law while opening the account. Though there is no limit for withdrawal of cash by self cheque, however the circular stated supra, provides the banks are required to keep a close watch of cash withdrawals and deposits for Rs.10 lakhs and above.

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Further, the Reserve Bank of India in its Circular vide No.DBOD.LEG.BC.86/09.07.007/2001-02 dated 08.04.2002 in Paragraph No.3 stated as under:

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“3. With a view to redressing the grievances of the customers in this regard, we have reviewed the position and advise that (i) in cases where banks are at fault, the banks should compensate customers without demur, and (ii) in cases where neither the bank is at fault nor the customer at fault but the fault lies

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elsewhere in the system, then also the banks should compensate the customers (upto a limit) as part of a Board approved customer relations policy.”

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Post passing of this Circular, the Hon’ble Apex Court

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in the case of The Kerala State Co-operative Marketing Federation vs. State Bank of India and Others in Appeal (Civil) No.151/1998 dated 30.01.2004, held that ‘the banker had acted in good faith, but was guilty of negligence in not taking reasonable precautions and safeguards, to ensure the safe transaction, he will put out side the protection of Section 82 of the Bills of Exchange, 1882’. Further in Paragraph No.15, the Hon’ble Apex Court by referring the judgment of Turner v. London and Provincial Bank (1903) 2 Legal Decisions Affecting Banker 33: IV Journal of Institute of Bankers 220), evidence was admitted as proof of negligence, that the customer had given a reference on opening the account and that this was not followed up. The principles governing the liability of a collecting banker have also been extracted in the impugned judgment, which reads as follows:

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"(1) As a general rule the collecting banker shall be exposed to his usual liability under common law for conversion or for money had and received, as against the ’true owner’ of a

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cheque or a draft, in the event the customer from whom he collects the cheque or draft has not title or a defective title.

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(2) The banker, however, may claim protection from such normal liability provided he fulfils strictly the conditions laid down in S. 131 or S. 131A of the Act and one of those conditions is that he must have received the payment in good faith and without negligence.

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(3) It is the banker seeking protection who has on his shoulders the onus of proving that he acted in good faith and without negligence.

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(4) The standard of care to be exercised by the collecting banker to escape the charge of negligence depends upon the general practice of bankers which may go on changing from time to time with the enormous spread of banking activities and cases decided a few decades ago may not probably offer an unfailing guidance in determining the question about negligence today.

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(5) Negligence is a question of fact and what is relevant in determining the liability of a collecting banker is not his negligence in opening the account of the customer but negligence in the collection of the relevant cheque unless, of course, the opening of the account and depositing of the cheque in question therein from part and parcel of one scheme as where the account is opened with the cheque in question or deposited therein so soon after the opening of the account as to lead to an inference that the depositing the cheque and opening the account are interconnected moves in a integrated plan.

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(6) Negligence in opening the account such as failure to fulfill the procedure for opening an account which is prescribed by the bank itself or opening an account of an unknown person or

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non-existing person or with dubious introduction may lead to a cogent, though not conclusive, proof of negligence particularly if the cheque in question has been deposited in the account soon after the opening thereof.

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(7) The standard of care expected from a banker in collecting the cheque does not require him to subject the cheque to a minute and microscopic examination but disregarding the circumstances about the cheque which on the face of it give rise to a suspicion may amount to negligence on the part of the collecting banker.

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(8) The question of good faith and negligence is to be judged from the stand point of the true owner towards whom the banker owes no contractual duty but the statutory duty which is created by this section and it is a price which the banker pays for seeking protection, under the statute, from the otherwise larger liability he would be exposed to under common law.

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(9) Allegation of contributory negligence against the paying banker could provide no defence for a collecting banker who has not collected the amount in good faith and without negligence."

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On careful analysis of the Circulars of the Reserve

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Bank of India and the principles summarized by the Hon’ble Apex Court in the above case and collocating the same to the facts and circumstance of this case, we are of the considered

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view that defendant No.2 was negligent while opening the account in the name of plaintiff Society at the instance of

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defendant No.1 and while releasing a huge sum of Rs.20,00,000/- to defendant No.1 jointly and severally. In such circumstance, defendants No.1 to 3 are liable to make good the loss suffered by the plaintiff Society.

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In that view of the matter, the trial Court rightly appreciated the evidence on record and passed the impugned judgment and decree, which does not call for any interference. Accordingly, we answer points No.1 and 2 in the affirmative and proceed to pass the following:

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ORDER

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The Regular First Appeal No.100221/2020 is dismissed .

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV Ct:vh

City Union Bank Ltd. v. Karnataka Sahakari Sakkare

Case brief

What is this about?

What did the court decide?

City Union Bank Ltd. v. Karnataka Sahakari Sakkare

Case brief

What is this about?

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