2003 (1) TMI 521 - HC - Companies Law

Summary

Issues Involved:
1. Realisation of money due under two cheques.
2. Negligence and liability of the 1st defendant bank.
3. Protection under Section 131 of the Negotiable Instruments Act.
4. Contributory negligence of the plaintiff.

Issue-wise Detailed Analysis:

1. Realisation of Money Due Under Two Cheques:
The plaintiff, Kerala State Co-operative Marketing Federation, filed a suit to recover money due under two cheques issued by defendants 2 and 3. Defendants 2 and 3 had issued cheques for Rs. 19003.42 and Rs. 9970.76 respectively, drawn on the 1st defendant bank. These cheques were stolen, defaced, and forged in the name of the 4th defendant, K.S. Marar, who encashed them through the 1st defendant bank. The court below decreed the suit in favor of the plaintiff, leading to the 1st defendant's appeal.

2. Negligence and Liability of the 1st Defendant Bank:
The 1st defendant contended that the cheques were issued in the name of K.S. Marar and collected without apparent defacement or forgery. They argued that due care and caution were exercised, and the plaintiff should have been more careful in handling the cheques. However, the court found the 1st defendant negligent in opening an account for a fictitious person (K.S. Marar) without proper verification and allowing the encashment of the forged cheques. The court noted that the 1st defendant failed to ascertain the full identity of K.S. Marar and did not conduct a thorough enquiry.

3. Protection Under Section 131 of the Negotiable Instruments Act:
The primary issue was whether the 1st defendant was entitled to protection under Section 131 of the Negotiable Instruments Act, which provides non-liability for bankers acting in good faith and without negligence. The court examined whether the bank acted without negligence in the realization of the cheques. The evidence showed that the opening of the account and the presentation of the cheques were part of the same scheme, indicating negligence in the bank's procedures. The court cited relevant case law, including *State Bank of India v. Kerala State Co-op. Marketing Federation* and *Bharat Bank Ltd. v. Kishinchand Chellaram*, to support its findings that negligence in opening the account reflected on the encashment of the cheques.

4. Contributory Negligence of the Plaintiff:
The 1st defendant argued that the plaintiff was also negligent in sending the cheques by ordinary post instead of registered post. However, the court held that contributory negligence is not a defense available to the 1st defendant. The primary negligence in permitting the opening of the account and encashing the cheques without proper verification rested with the 1st defendant.

Conclusion:
The court found no reason to interfere with the lower court's findings that the 1st defendant was negligent and not entitled to protection under Section 131 of the Negotiable Instruments Act. The appeal was dismissed, and each party was ordered to bear their respective costs.