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TMI Blog2017 (10) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... lls of exchange, the date of discount, the name of the person in the OBC who had returned the bills of exchange unpaid, etc., doesn’t have any force. We find no infirmity in the said findings returned by the DRAT for the reason that the bills of exchange were drawn by the respondent No.3 in favour of the petitioner and were accepted by the petitioner and therefore, the petitioner is the acceptor and the drawee under Section 7 of N.I. Act. The argument of the learned counsel for the petitioner that since the accounts between petitioner and respondents No.3 stood settled, no claim can be raised against the petitioner, is of no consequence. It is noteworthy that the OA was filed in the year 2014 and the DRT-II had passed an order on 06.01.2014. The petitioner alleges that it had settled its accounts with the respondent No.3 between 09.11.1998 to 01.05.1999. Despite the said version, no such plea was taken by the petitioner in its written statement filed before the DRT-II, in response to the OA of the contesting respondents. Even otherwise, the alleged settlement with the respondent No.3 was much after the date when the bills of exchange were presented to the petitioner by Shri S.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntron Informatics Ltd. (the petitioner herein) for payment at par through Oriental Bank of Commerce Nehru Place, New Delhi (hereinafter referred to as the OBC ),. Respondent No. 1/Dena Bank acceded to the request of the Respondent No.3/ M/s Unicorp and discounted the following four bills of exchange as reproduced by the DRT-II in its order dated 06.01.2014:- S.No. Bill of Exchange No. Date Amount Due Date Bill No. Date 1 UIL/001 19.02.1998 Rs.11,45,700/- 20.05.1998 UCS/9802/3102 18.02.1998 2 UIL/002 19.02.1998 Rs.9,84,900/- 15.05.1998 UCS/9802/3099 18.02.1998 3 UIL/003 19.02.1998 Rs.9,04,500/- 10.05.1998 UCS/9802/3100 18.02.1998 4 UIL/004 19.02.1998 Rs.10,65,300/- 05.05.1998 UCS/9802/3101 18.02.1998 3. On maturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tyagi, Notary Public and his alleged noting and protest is not in accordance with the provisions of Negotiable Instruments Act (hereinafter referred to as the N.I. Act ) and does not filfil the requirements of Section 99 and 102 of the N.I. Act; that there is no document to support any of the pleas of the respondents and reliance on the oral testimony by the Tribunal is, therefore, is improper and against the canons of justice; that undue credence has been given to the testimony of the Notary Public while the testimony of the petitioner s witnesses, who were not even cross-examined, has not been appreciated or considered by the Tribunal. 6. It is further canvassed by learned counsel for the petitioner that the DRAT has failed to consider the ratio of the judgment of the Division Bench of the High Court of Bombay in the case of Raj Kumar vs. DRAT (reported as II (2004) BC 485, decided on 17.06.2003), wherein it was held that there is no presumption in law that the bank documents and the bank officers are always truthful and the citizens or borrowers are always liars. It was contended that for the sake of arguments, even if it is assumed that the petitioner had accepted the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the respondents and that on presentation of the said bills to the OBC, the same were retuned unpaid. It is submitted that in the challenge laid to the order of the DRT-II before the DRAT, the petitioner changed its stand and took a plea that the bills were in fact never presented to the OBC, prior to the petitioner s settling its liability with the respondent No.2/borrower company. It is further argued that the petitioner s plea that the pleadings in the OA were vague and certain facts were not disclosed, is also contrary to the record and the respondents have categorically pleaded all the relevant facts in the OA. Learned counsel submitted that the petitioner has not taken the plea of the vagueness or suppression or non-disclosure of any facts by the contesting respondents in the written statement filed before the DRT and this aspect has been considered by the learned DRAT in the impugned order and rejected. 10. Learned counsel for the respondent No.2 urged that the jurisdiction of the Court under Article 226 is very limited and the court is not expected to act as an Appellate Court, nor can the court re-appreciate and re-evaluate the evidence led before the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not appellate one, and as such the Court would not be justified in re-appreciating the evidence . . 14. In the case of Transmission Corporation of A.P. vs. Ch. Prabhakar Ors, reported as (2004) 5 SCC 551, the Supreme Court had held that the High Court cannot interfere with the findings of fact based on evidence and substitute its own independent findings. The only enquiry which the High Court can make under Article 226 is whether there was any evidence at all, which if believed, would sustain the charge before the Special Court or the findings arrived at by it or whether the Special Court acted upon irrelevant considerations neglecting to take into account the relevant factors or whether the decision is so unreasonable that no reasonable person would have made such a decision. The proceedings under Article 226 are not a substitute for an appeal. 15. Therefore, the jurisdiction of this Court under Article 226 and 227 of Constitution of India is limited to examining if the findings challenged before it are at all based on some evidence before the Court below and where there is some evidence which the Authority had relied upon while arriving at a conclusion, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were forged and fabricated and never accepted by them but by a different entity, it did not examine its Director and the acceptor of the bills of exchange, Shri P.K. Mittal. In view of the failure on the part of the petitioner to examine the alleged acceptor of the bill, who happens to be its own Director, all the pleas regarding non-genuineness/fabrication of the bills of exchange, fall to the ground. The findings returned by the DRT and the DRAT, rejecting these contentions of the petitioner, cannot be faulted on this count. 17. The petitioner did not raise any grievance before the DRT-II that the bills of exchange were never presented for payment to the OBC. Therefore, this fact remains uncontradicted. Thereafter, the bills of exchange were presented by S.K. Tyagi, the Notary Public to the petitioner on 23.10.1998 at its premises, where the acceptor of the bill, Shri P.K. Mittal, Director of the petitioner Company was not found present. The persons who were present, i.e., Shri Anil Paishena and Rajan Garg, General Manger (Finance) had sought three weeks time for making payment by 14.11.1998. Thereafter, Shri S.K. Tyagi had protested the bills of exchange against the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act provides that when a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may cause such dishonour to be noted by a notary public upon the instrument, or upon a paper attached thereto, or partly upon each. As per Section 100 of the said Act, when a promissory note or bill of exchange has been dishonoured by non-acceptance or non-payment, the holder may, within a reasonable time, cause such dishonour to be noted and certified by a notary public. Such certificate is called a protest. In view of these provisions of law, services of Mr. S.K. Tyagi were utilized. He cannot be attributed with any motive to come forward and depose falsely. He certainly can be called an independent witness and was produced by the bank to ensure compliance of legal provisions. The Tribunal below, by placing reliance on the version of Mr. S.K. Tyagi and preferring it over the deposition of Mr. Rajan Garg, who can be termed as interested witness, is certainly seen justified in adopting this approach. There are no golden rules for appraising human testimony. In assessing its worth, Judges can err honestly just as witnesses can make honestly mistaken stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dedly was working with the appellant whom he had gone and met would show that his account is not a made-up story but is well supported by this circumstance as well. If Mr. Tyagi had any intention to depose something which is not factually correct, he should have easily shown the presence of Mr. P.K. Mittal at the time of his visit to the office of the appellant. There is nothing to doubt the version given by the witnesses produced by the respondent bank. The Tribunal below cannot be faulted for placing reliance on the evidence produced by the bank and not believing the version given by the witnesses produced by the appellant. 19. The discussion above clearly shows that the plea taken by the petitioner with respect to the testimony of the Notary Public has been discussed at length by the DRAT and findings were given after appreciating the evidence led by the parties before the DRT. We are inclined to concur with the said findings. The Notary Public is no doubt, an independent witness acting under the authority of law and discharging the duties assigned to him by virtue of the N.I. Act. In the absence of any mala fides or bias, being proved against him, his testimony has more cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne to the premises of the appellant at Okhla Industrial Area once Oriental Bank of Commerce had returned the bills unpaid. Counsel would thus urge that the person present who had met Mr. S.K. Tyagi had promised to make payment up to 14.11.1998 and in this background the action of the appellant in making payment to the borrower company on the dates as noticed would show the game plan on the part of the appellant and the borrower company. 21. The contention of the petitioner that since the bills of exchange were required to be presented through OBC, it is OBC which is the drawee and as the said bills were not presented through OBC, the petitioner cannot be held liable, have been dealt by the DRAT and negated as under:- To contest the pleas raised by the counsel for the appellant that the respondent bank was required to present these bills to Oriental Bank of Commerce in terms of the endorsement on the bills of exchange, the counsel would refer to the definition of drawer‟, acceptor‟, payee‟ etc. given in Section 7 of the Negotiable Instruments Act. Makers of bills of exchange or a cheque is called the drawer and the person thereby directed to pay is dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent stands of the appellant in its written statement and in the appeal also cannot be ignored. The appellant had even denied the acceptance of bills of exchange, by urging that the same was signed by some different entity. By giving a go-by to this stand, the appellant certainly is seen blowing hot and cold at the same time. If this was the stand taken before the Tribunal below, then obviously the other plea that these bills of exchange had to be presented to the bank or to the appellant would show the change in stance. Changing stand and adopting different pleas can itself be fatal and can be enough to cast doubt on the stand of the appellant apart from other grounds as urged. 23. The argument of the petitioner that the judgment of the DRAT is based on surmises and conjectures is devoid of substance. The DRAT has noted the pleas of the petitioner, as taken before the DRT-II in its written statement and juxtaposed them with the pleas taken in the appeal. The view of the DRAT is therefore not based on surmises and conjectures, but is simply a reproduction of the different and shifting stands taken by the petitioner before different fora. 24. In view of the above facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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