2018 (8) TMI 738 - HC - Indian Laws

Refund of two Fixed deposits made with Interest - total denial of the receipt of 30 lakhs in cash from the respondent by Bank. Whether the suit filed by the respondent/plaintiff is barred by the law of limitation? - Held that - This Court does not want to go into this question for the first time at the stage of appeal. It is true that the question of limitation can be gone into by a Court even without the same being raised as an issue where on a bare reading of the plaint this Court finds that the claim is barred by limitation. In this case limitation was not taken as a defense in the written statement and was not made as an issue before the learned Single Judge. What is the effect of the Statement of Accounts filed by the appellant Bank under the Bankers Books Evidence Act 1891? - Held that - In the instant case the presumption that can be drawn by this Court in relation to the facts of this case is that the respondent has tried to take advantage of the availability of two original fixed deposit receipts for 20 lakhs and 10 lakhs that was not collected from him by mistake by the Officers of the appellant Bank at the time of consolidating the fixed deposit. The conduct of the appellant in waiting for 5 years and thereafter trying to take advantage of these original fixed deposit receipts can be clearly seen in the facts and circumstances of this case. Whether the appellant Bank has discharged the onus by disproving the claim made by the respondent and whether the respondent on the onus being shifted has established the claim? - Held that - Even if the fixed deposit receipt marked as Exs.P-1 and P-2 is taken to be a negotiable instrument and presumption under Section 118 of the Negotiable Instruments Act is to be drawn against the appellant Bank the appellant Bank is entitled to rebut the presumption by means of preponderance of probabilities and for the said purpose evidence adduced on behalf of the plaintiff and the materials on record and also the circumstances upon which the defendant relies up can be taken into consideration for the purpose of rebutting the presumption. Whether the judgment and decree of the learned Single Judge deserves to be interfered with in this appeal? - Held that - The learned Single Judge has drawn an adverse inference against the appellant Bank for not examining Mr.Sivasubramanian Ex.D-3 speaks for itself and there is no requirement for Mr.Sivasubramanian to come and explain about the entries made in the books of accounts and DW-1 himself was competent to explain the same. In fact this Court is drawing an adverse inference against the respondent for not producing the books of accounts or the income tax returns in order to prove that he paid 30 lakhs by way of cash towards the fixed deposit - We are not in agreement with the findings of the learned Single Judge while allowing the suit filed by the respondent - the judgment and decree of the learned Single Judge set aside. Appeal allowed.

Summary

Issues Involved:
1. Whether the plaintiff made deposits with the defendant Bank or whether the deposit slip for ?30 lakhs is a fabricated document.
2. Whether the suit is barred due to the acceptance of the final report by the Additional Chief Metropolitan Magistrate.
3. Whether the plaintiff is entitled to recover ?30 lakhs from the defendant.
4. Whether the plaintiff is entitled to claim interest at 24% p.a. on ?30 lakhs.
5. Whether the plaintiff is entitled to the suit amount of ?45,60,000 with subsequent interest at 24% p.a. on ?30 lakhs from the date of the plaint till realization.

Issue-wise Detailed Analysis:

1. Whether the plaintiff made deposits with the defendant Bank or whether the deposit slip for ?30 lakhs is a fabricated document:
The plaintiff claimed to have deposited ?20 lakhs and ?10 lakhs by cheque and an additional ?30 lakhs by cash with the defendant Bank. The Bank admitted the first two deposits but denied the cash deposit, asserting that the ?30 lakhs was a consolidation of the first two deposits. The plaintiff's claim was challenged based on the absence of a cash deposit slip and the Bank's consistent denial supported by internal records and investigations by the Reserve Bank of India (RBI) and Central Crime Branch, Chennai, which found no evidence of the additional ?30 lakhs deposit.

2. Whether the suit is barred due to the acceptance of the final report by the Additional Chief Metropolitan Magistrate:
The defendant argued that the suit was barred by limitation as the claim was made more than five years after the maturity of the deposits. However, the plaintiff contended that the limitation period started from the date of demand (26.08.2003), making the suit timely. The court noted that limitation was not raised as an issue in the trial court and involved mixed questions of fact and law, which should not be addressed for the first time on appeal.

3. Whether the plaintiff is entitled to recover ?30 lakhs from the defendant:
The court examined the evidence, including the Bank's statement of accounts certified under the Bankers' Books Evidence Act, which showed the consolidation of the ?20 lakhs and ?10 lakhs deposits into a single ?30 lakhs deposit. The plaintiff’s delay in claiming the deposits and failure to produce income tax returns to substantiate the cash deposit further weakened his case. The court found that the Bank had discharged its burden of proof, shifting the onus to the plaintiff, who failed to provide sufficient evidence of the cash deposit.

4. Whether the plaintiff is entitled to claim interest at 24% p.a. on ?30 lakhs:
Given the findings that the plaintiff did not prove the cash deposit of ?30 lakhs, the claim for interest at 24% p.a. on this amount was not substantiated. The court emphasized that the plaintiff's conduct and the absence of supporting documents such as income tax returns or renewal receipts undermined his claims.

5. Whether the plaintiff is entitled to the suit amount of ?45,60,000 with subsequent interest at 24% p.a. on ?30 lakhs from the date of the plaint till realization:
The court found that the plaintiff was not entitled to the claimed amount as the evidence did not support the existence of the additional ?30 lakhs deposit. The judgment of the learned Single Judge was set aside, and the suit was dismissed with costs.

Conclusion:
The court concluded that the plaintiff failed to prove the cash deposit of ?30 lakhs and that the Bank had adequately demonstrated the consolidation of the initial two deposits. The plaintiff’s claims for the recovery of ?30 lakhs and subsequent interest were dismissed, and the judgment and decree of the learned Single Judge were set aside. The appeal was allowed with costs, and the connected miscellaneous petitions were closed.