Dismissed

Mrs. K. Rajakumari v. the General Manager

Madras HC4 Apr 2019WP/11377/2009

Case brief

AI extract

What is this about?

The Madras High Court dismissed a writ petition seeking directions to a bank to conduct an enquiry and compensate a petitioner for allegedly missing gold jewels from a locker. The court found inconsistencies in the petitioner's claims and noted a security deposit agreement did not constitute a bailment or indemnity against theft.

What did the court decide?

Petition dismissed. No costs. Connected miscellaneous petitions closed.

Mrs. K. Rajakumari Vs the General Manager — Contract and Commercial Disputes | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 04.04.2019

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CORAM:

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THE HONOURABLE MR. JUSTICE T.RAJA

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W.P.No.11377 of 2009 and

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M.P.Nos.1 and 2 of 2009

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K.Rajakumari ... Petitioner Vs 1. The General Manager, State Bank of India, Aperna Complex, 16, College Lane, Chennai-600 006. 2. The Branch Manager, State Bank of India, Chintadripet, 24, Arunachala Naicken Street, Chennai-600 002. 3. The Deputy Director, CBI Sastri Bhavan, Chennai. 4. The Commissioner of Police, Commissioner Office, Chennai. 5. The Inspector of Police, F.1 Chintadripet Police Station, Chennai. 6. Joy ... Respondents

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Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2^nd respondent dated 27.5.2009 on the file of the Branch Manager, State Bank of India, Chintadripet, 24 Arunachala Naicken Street, Chennai, quash the same and consequently, direct the 1^st respondent to conduct an enquiry regarding complaint dated 28.4.2009 by handing over 80 Sovereigns of Jewels and Certificate to the petitioner.

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For Petitioner : Mr.S.Mohanasundaram For Respondents : Mr.S.Sethuraman 1 and 2 For 3^rd respondent : Mr.K.Srinivasan, Spl. Govt. Pleader

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For Respondents : Mr.K.Ravi Kumar, 4 and 5 Addl. Govt. Pleader 6^th Respondent : No appearance O R D E R

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This Writ Petition has been filed seeking to issue a Writ of Certiorarified Mandamus, calling for records of the Branch Manager, State Bank of India, Chintadripet, 24 Arunachala Naicken Street, Chennai, the 2^nd respondent herein, dated 27.5.2009, to quash the same and for consequential direction, directing the 1^st respondent to conduct an enquiry regarding complaint dated 28.4.2009 by handing over 80 Sovereigns of Jewels and Certificate to the petitioner.

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Learned Counsel appearing for the petitioner submitted that the petitioner is having Savings Bank Account at State Bank of India, Chintadripet Branch and she is also availing Locker facility, bearing Locker No.33 in the said bank and the same was operated by her then and there. Since the petitioner has kept her jewels and certificates in the locker from 2005, on 6.4.2009, the petitioner visited the said Bank and signed the Locker Ledger and was permitted to operate the locker by the Bank. The Assistant Manager, who was in charge for the Locker accompanied the petitioner and put his master key in the locker. The petitioner also used her additional key for opening the locker and after opening the locker, kept all 80 Sovereigns of Gold jewels and Certificates inside the said Locker and returned her home. Thereafter, the petitioner again visited the bank on 25.4.2009 and requested the Manager to help her to open the Locker. When the Assistant Manager Mari accompanied the petitioner and brought the Master Key, before using the Master Key, the Assistant Manager Mari noticed that the Locker was already opened and the same was also informed to the petitioner. The petitioner cried and shouted and immediately, it was brought to the knowledge of the Manager by the said Assistant Manager. When the incident took place on 25.04.2009 at 11.00 a.m., a complaint was given to the Inspector of Police, F1 Chintadripet Police Station, Chennai. On receipt of the complaint, the Inspector of Police, F1 Chintadripet Police Station, Chennai rushed to the said Bank and conducted an enquiry and interrogated

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the Manager and the Assistant Manager Mari. It is also stated that the Assistant Manager Mari admitted before the Police that the locker was already opened prior to opening the same on 25.4.2009. After some time, the 6^th respondent was also transferred to some other place. Thereafter, one more complaint was given to the Commissioner of Police, Chennai, the 4^th respondent herein on 28.04.2009 and then, the Inspector of Police, F.1 Chintadripet Police Station registered a case in Crime No.350 of 2009 on 15.05.2009.

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The learned Counsel for the petitioner further submitted that when this Court has directed the 4^th respondent to file a Status Report, the 4^th respondent, the Commissioner of Police, has also filed an affidavit in the month of July, 2009 stating that it is a case of suspicion that the petitioner after opening the Locker has not properly closed her locker and wrongly left the place. However, in the affidavit, the 4^th respondent stated that in the course of enquiry, the defacto complainant's daughter Rajini Devi asserted that her jewels were only 10 sovereigns of gold but the petitioner's version was that the jewels of her daughter were 25 sovereigns that shows that she has given exaggerated figures and that may be due to her age memory being failed. Similarly, the possibility of her leaving the locker open cannot be ruled out. In his affidavit, the Commissioner of Police also stated that the Investigation Officer enquired the issue in depth and examined the staff employed in the branch. But, in the enquiry, it was found that the petitioner has not keen in disclosing certain factors including the raid carried on by Income Tax Department.

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Finally, the learned Counsel for the petitioner stated that when the Sub-Inspector of Police made an enquiry with the Manager of the Bank and the custodian of the locker, the Assistant Manager Mari admitted during enquiry that the locker was found open. Therefore, when the Assistant Manager Mari had admitted the case of the petitioner that the locker was found open, the complaint made by the petitioner that the valuables, namely, 80 sovereigns of gold jewels and the Kissan Vikas Patra that were kept inside the locker were also found missing should be accepted and a direction be issued to the bank for making suitable compensation.

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A Counter Affidavit has been filed on behalf of the respondent Bank.

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Mr.S.Sethuraman, learned Counsel for the respondent Bank submitted that admittedly, two different affidavit, namely, one by the Commissioner of Police, Chennai, 4^th respondent herein which is differed from the Status Report filed by the Inspector of Police, W3 AWPS, Egmore, Additional in charge of F1 Chintadripet Police Station on 23.03.2019. In the concluding paragraph of the Status Report, it is clearly mentioned that the allegation made by the

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petitioner that a Kissan Vikas Patra bearing No.44536 which was kept inside the locker was found missing cannot be accepted for the simple reason that the said Kissan Vikas Patra was produced before the postal authorities for encashment. Therefore, the allegation made by the petitioner that the Kissan Vikas Patra was found missing is a false statement. Secondly, the affidavit filed by the 4^th respondent also shows another inconsistent statement. In page 4 of the affidavit filed by the Commissioner of Police, Chennai, states that during the course of enquiry the defacto complainant's daughter Rajini Devei asserted that her jewels were only 10 sovereigns of gold whereas the petitioner's version is that the jewels of her daughter is 25 sovereigns of gold. Therefore, there is no truth in the statement made by the petitioner as to whether the loss of gold is 25 sovereigns or 10 sovereigns. Even in the present case, a prayer has been made for a direction to return the 80 sovereigns of gold. That again further falsify the case of the petitioner.

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The learned Counsel for the respondent Bank further referring to the ratio laid down by the High Court of PunjabHaryana in Atul Mehra and another vs. Bank of Maharashtra reported in AIR 2003 PH 1 stated that in similar circumstances, while dealing with missing of the jewels kept in the locker, the Court has dealt with Section 148 of the Indian Contract Act which provides the conditions precedent for constituting bailment. These are (i) there has to be delivery of goods by bailor to bailee, (ii) there has to be a contract to return the goods or the property on the instructions of the bailor. Further Explanation to Section 148 of the Indian Contract Act, 1972 shows that possession by itself is not enough and Section 149 of the Act also envisages that delivery may be doing anything which has the effect of putting the goods in the possession of the bailee. Therefore, when there is no evidence on the record except the bald statement of the petitioner in the present case, the question of accepting the case of the petitioner that in view of opening of the locker of the petitioner in the respondent bank at Chintadripet, the valuables kept inside the locker was missing for which the respondent bank should be held responsible is wholly unacceptable. The reason being that the hiring of a locker is a transaction wholly distinct in nature from a transaction that would create the relationship of landlord and tenant. In the case of tenancy exclusive possession of the demised premises has to be surrendered by the landlord to the tenant. In the case of bailment exclusive possession of the property has to be given by the bailor to the bailee. Whatever property is deposited in the locker is, undoubtedly, in the custody and possession of the bank and merely because the locker can be operated only in the presence of the locker hirer would not amount to joint possession of the locker. I fully agree with these submissions made by the Bank.

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Moreover, when it is not even proved by the petitioner that how much valuable she had kept in the locker and how much was also missing, this Court is unable to accept the case of the petitioner. Moreover, one of the allegations made by the petitioner that a Kissan Vikas Patra bearing No.44536 kept inside the locker was found missing has been disproved by the Status Report filed by the Inspect of Police, W3 All Women Police Station, Additional in charge of F1, Chintadripet Police Station stating that the same Kissan Vikas Patra was produced before the postal authorities for encashment. Therefore, looking at the case of the petitioner, this Court is not inclined to accept the version of the petitioner in view of the afore said three inconsistent statement made by the petitioner.

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In the result, the Writ Petition fails and the same is accordingly dismissed, however, it is open to the petitioner to approach a competent civil court for appropriate relief, if she is so aggrieved. No costs. Consequently, connected Miscellaneous Petitions are closed. -s/d- Assistant Registrar True Copy Sub-Assistant Registrar tsi To 1. The General Manager, State Bank of India, Aperna Complex, 16, College Lane, Chennai-600 006. 2. The Branch Manager, State Bank of India, Chintadripet, 24, Arunachala Naicken Street, Chennai-600 002.

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The Deputy Director, CBI Sastri Bhavan, Chennai.

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The Commissioner of Police, Commissioner Office, Chennai.

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The Inspector of Police,
F.1 Chintadripet Police Station,
Chennai.
+1 CC to Mr.S.Sethuraman, Advocate Sr.No.32941
+1 CC to Additional Government Pleader, High Court, Chennai
Sr.No.34019
W.P.No.11377 of 2009
GP(CO)
KP(10/06/2019)

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Mrs. K. Rajakumari v. the General Manager

Case brief

What is this about?

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Mrs. K. Rajakumari v. the General Manager

Case brief

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