Raipur, Chhattisgarh v. 1 - Neeta Vishwakarma D/o
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.06.23 17:19:42 +0530 2025:CGHC:26009 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 143 of 2020 Reserved on 13-6-2025 Delivered on 20 - 6 - 2025 1 - Bank Of India Through Power Of Attorney Shri Rajendra Kumar Dhruv, Chief Manager, At Present Shri I.C. Gupta, S/o R.P. Gupta Chief Manager , Tatyapara Branch, Bank Of India , Raipur , District Raipur , Chhattisgarh., District : Raipur, Chhattisgarh ... Appellant versus 1 - Neeta Vishwakarma D/o Shri Laxmi Narayan Vishwakarma Aged About 38 Years Address Badhaipara, Near Kuwa, Lalta Chowk , Raipur , District Raipur , Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent For appellants For Respondent No. 1 : :
Legal Reasoning
Mr. Rohitaswa Singh, Adv. Mr. Satish Surya, Adv. on behalf of Mr. Yogesh Pandey, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J) CAV Judgment 1. The appellant/plaintiff has preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth, referred to as 2 ‘CPC’) against the judgment and decree dated 30-1-2020 passed by the 5th Addl. District Judge, Raipur (CG) /trial Court in Civil Suit No. 83-B/2014, whereby the trial Court has dismissed the recovery suit filed by the appellant/plaintiff. (hereinafter, parties shall be referred as per their description before the trial Court). 2. Brief facts of the case are that, the plaintiff filed a suit against the defendant for recovery of Rs. 4,14,120/- pleading therein that the plaintiff is a banking institution, which has a branch located at Tatyapara, Raipur (CG). The defendant has a savings account number 935410110001534 in the plaintiff bank Tatyapara branch, Raipur which is operated by the defendant herself. One Pankaj Agarwal gave the defendant a cheque dated 27.03.2014 of Rs. 4,00,000/- (Cheque No. 575998). The defendant deposited the said cheque in her account in Bank of India Tatyapara branch for the purpose of payment. The said cheque bounced on 04.04.2014 due to insufficient funds during CTS clearing, but due to system error, the said amount got credited to the defendant's account, which is the bank's amount. On coming to know through return memo dated 14.06.2014, that the said cheque was dishonoured due to insufficient funds, the plaintiff bank during investigation found that the defendant had withdrawn the said amount of Rs. 4,00,000/- from her account. The plaintiff bank immediately contacted the defendant over phone to inform her about this incident and on 11.07.2014, the plaintiff bank sent its employee to the defendant to return the said cheque and 3 return memo to the defendant. When the defendant refused to accept the said cheque and return memo, the plaintiff bank sent a notice to the defendant through its advocate on 15.07.2014 demanding Rs. 4,01,464/- and thereafter, filed a suit for recovery of Rs. 4,14,120/- against the defendant. 3. The defendant filed written statement, denying the averments made in the plaint and pleaded that Pankaj Agarwal had given cheque no. 575998 of Rs. 4,00,000/- to the defendant, which she presented to the Tatyapara branch of plaintiff’s bank for payment on 27.03.2014. The defendant's savings account is in Tatyapara branch, wherein, the cheque in question was cleared and the amount of the cheque was credited to the defendant's account and the defendant withdrew and used the above amount as per her requirement. At the time of withdrawal of the above amount, no objection or information of any kind was raised by the plaintiff. The plaintiff informed the defendant about the dishonour of the cheque after about four months and sent a letter dated 11.07.2014 so that the defendant could not take any legal action against Pankaj Agarwal. The defendant further stated in her reply that the plaintiff came to know about the dishonor of the cheque in question on 14.04.2014, but the information was not given to the defendant immediately, which shows that the above circumstances have arisen due to the negligence of the plaintiff, for which, the plaintiff itself is responsible. The defendant has further pleaded that the cheque in question in the case is of State Bank of India, Tilda District Raipur, Chhattisgarh and in this case, the said bank and 4 Pankaj Agrawal are also necessary parties, which have not been made party by the plaintiff. It has been prayed by the defendant to dismiss the suit of the plaintiff being baseless and for non-joining of the necessary parties. 4. On the basis of pleading of both the parties, learned trial Court framed 3 issues, recorded evidence adduced by the parties and after considering the evidence and contention of the learned counsel for the parties, it dismissed the suit filed by the plaintiff holding that it suffers from non-joinder of necessary party. Being aggrieved by such judgment and decree, appellant/plaintiff has filed instant first appeal. 5. Learned counsel for the appellant would submit that, the suit filed by the plaintiff is a B class suit, against the defendant for recovery of Rs. 4,14,120/-. It is submitted that, on 27-3-2014, the defendant deposited the cheque no. 575998 dated 27-3-2014 of Rs. 4,00,000/- in the Tatyapara branch, Raipur of plaintiff bank drawn on State bank of India, Neora branch, Tehsil Tilda. Said cheque dishonoured during CTS clearing due to insufficient fund on 4-4-2014, but due to system error, said amount deposited in the account of defendant on 4-4-2014, which she also withdrew, but said amount is of plaintiff. On coming to known 14-6-2014 through return memo of State Bank of India, about dishonouring of the said cheque, the plaintiff sent its employee to the defendant along with return memo and cheque, which she refused to accept, the plaintiff also sent legal notice to her and then filed the suit. It is submitted that the amount has been withdrawn by the defendant and despite request made, she has not returned the amount. In this 5 circumstances, Pankaj Agrawal is not a necessary party, as the amount was received by defendant, as such, it is to be recovered from the defendant. The trial Court has committed error while dismissing the suit for non-joinder of the party and on merit. Since it is a matter involving public money, therefore, he prayed that the matter may be remanded back to the trial Court with direction to decide the case afresh, after providing opportunity to the appellant/plaintiff to amend its pleading by impleading all necessary party. 6. On the other hand, learned counsel for the defendant supports the impugned judgment and submits that it is based on well appreciation of evidence, hence the appeal may be dismissed. 7. I have heard learned counsel for the parties and perused the material available on record. 8. It is not in dispute that, the defendant submitted cheque No. 575998 of Rs. 4,00,000/- for clearance in the Tatyapara branch, Raipur of plaintiff bank drawn on State Bank of India Neora branch. 9. The plaintiff has filed affidavit under Order 18 Rule 4 of the C.P.C. of Rajan Kumar Sinha (PW-1) and Rajendra Kumar Dhruv (PW-2) in support of the plaint, and exhibited statement of account of Pankaj Agrawal (Ex.P-1), Cheque No. 575998 of Rs. 4,00,000/- given by Pankaj Agrawal to the defendant (Ex. P-2), Return memo (Ex. P-3), letter dated 04.07.2014 sent by the branch to defendant Neeta Vishwakarma (Ex.P-4), legal notice dated 15.07.2014 (Ex.P-5), postal receipt Ex.P-6 and copy of statement of account of Neeta 6 Vishwakarma (Ex.P-7). Defendant has submitted her affidavit under Order 18 Rule 4 of C.P.C. 10. Ex. P-1, which is statement of account of Pankaj Agrawal shows that, on 1-6-2014, Rs. 111.64 was in his account and on 30-6-2014, Rs. 162.64 was in his account. Rajendra Kumar Dhruv (P.W. 2), Chief Manager, Bank of India, Tatyapara Branch, Raipur, has stated in his affidavit statement under Order 18 Rule 4 of Cr. P.C. that Pankaj Agarwal had given cheque no. 575998 for the disputed amount of Rs. 4,00,000/- to the defendant, which she deposited on 27.03.2014. The said cheque bounced on 04.04.2014 due to insufficient funds during CIS clearing, but due to system error, the said amount was credited to the respondent's account, which is actually the bank's amount, regarding which the return memo dated 14.06.2014 was immediately given to the defendant after the bank came to know that the cheque was dishonoured due to insufficient funds and thereafter on 11.07.2014 the cheque and return memo were sent to the defendant, but the defendant did not deposit the said amount in the bank. This witness has admitted in paragraph 15 of his cross-examination that generally any cheque is cleared within three days after being presented in the bank. It is also accepted that the information regarding dishonour of the said cheque was not given to the defendant within three days after 05.04.2014 and neither any return memo of State Bank of India branch Nevra regarding dishonour of cheque number 575998 has been filed in the case. It is also accepted that cheque number 575998 was not dishonoured before 14.06.2014. 7 In paragraph 16 of the cross-examination of the witness, it has been stated that Pankaj Agarwal and SBI branch Nevra have not been made party and neither any correspondence has been made with Pankaj Agarwal in this regard, for which the explanation given is that he did not have information about Pankaj Agarwal's address etc. He further accepted that the bank in which Pankaj Agarwal has an account, has full information about his address. The statement of account of Pankaj Agarwal's account no. 30423293232 has been filed in the case by the plaintiff’s witness himself. It is worthy to note here that, when he can file Pankaj Agarwal's bank statement in the case, then certainly Pankaj Agarwal's address can also be obtained and he can be made a party in the case. Therefore, the defence of the plaintiff that he was not made a party because he did not know the address of Pankaj Agarwal, cannot be accepted. 11. According to the plaintiff's claim, the defendant presented the cheque number 575998 given by Pankaj Agarwal for payment of Rs. 4,00,000/-, but the cheque bounced due to insufficient funds in Pankaj Agarwal's account, which was informed to the defendant by the plaintiff bank after 2 months, information about the cheque being dishonoured was given to the defendant, whereas Rajendra Kumar Dhruv (P.W. 2) has admitted in paragraph 15 of his cross-examination that any cheque get cleared within three days when presented in the bank, therefore, when any cheque get cleared within three days, then why was notice issued to the defendant after two months, no explanation has been given in this regard. At the relevant period, in 8 the bank account of Pankaj Agrawal, sufficient fund was not available, therefore, the cheque was dishonoured, but he has not been made party to the suit, whereas he is a necessary party in this case, thus learned trial Court has not committed any error in holding so. 12. The defendant deposited the cheque of Rs. 4,00,000/- in the plaintiff bank, which was cleared and the amount was deposited in defendant bank account. She withdrew the said amount, but the plaintiff bank did not raise any objection. The plaintiff came to know about dishonouring of the cheque on 14-6-2014, even then, the information was not sent immediately to the defendant about the same and it was sent to her on 11-7-2014. Therefore, it cannot be said that the defendant was in any way at fault in withdrawing the said amount. The amount, if any, required to be recovered, has to be recovered from Pankaj Agrawal, but, neither he has been made party nor his bank – State Bank of India, Neora Branch, Tilda has been made party in this case. 13. Thus, since there is no fault or act of cheating or misrepresentation on the part of defendant/respondent in depositing amount of Rs. 4,00,000/- of impugned cheque in her account and information with regard to dishonour of cheque was given to her on 11-7-2014 i.e. after 3 months from the date of dishonour of cheque, in between, she had already utilized the amount, therefore, plaintiff is not entitled to recover the amount from defendant/respondent. Rather, plaintiff has filed instant civil suit without impleading necessary party. Further, in fact situation of the case, this Court is not inclined to remit the matter to 9 the trial Court. 14. In view of above discussion, I do not find any perversity or illegality in the impugned judgment and decree passed by the trial Court. Hence, the same is affirmed. 15.
Decision
Consequently, the appeal is dismissed. 16. A decree be drawn accordingly. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak