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TMI Blog2018 (10) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Bank, Dhaniyawa Branch, district Patna (Bihar). The defendants No.2 & 3 J.M.A. Stores Pvt. Ltd. & J.M.A. Stores Pvt. Ltd. Magarpara Road, Jarahabhatha were dealing in sale of the different vehicles. Pursuant thereto when the defendant No.1 Ramesh Kumar deposited the draft, the same was in turn deposited by the dealer of the truck defendants No.2 & 3 with their banker Allahabad Bank. Allahabad Bank in turn sent it for clearance to the plaintiff bank i.e. Punjab National Bank, Bilaspur as the draft was issued by the Punjab National Bank of Dhaniyawa Branch, District Patna. The branch at Bilaspur cleared the amount and deposited the amount of Rs. 3,49,062/- and credited the amount to the account of the dealer. 3. It was further the case of the plaintiff Punjab National Bank that after clearance of the amount, the payee bank in turn sent the intimation to the Punjab National Bank, Dhaniyawa Branch on 12.07.1991. On 2nd of August,1991 they received an information from Dhaniyawa Branch, wherein it was informed that the said demand draft bearing No.PQW 261399 dated 08.07.1991 (Ex. P-2) was not issued by the said Branch. It was informed that the said draft book was lost/stolen from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant/appellant, the seller of the truck, contended that the said draft having been sent for clearance, the clearance having been made, the amount was credited to the account of seller of the truck. It was stated that the Allahabad Bank has wrongly been made a party and no liability can be attributed. 7. The trial Court on the basis of the pleading framed as many as 9 issues and it was held that the plaintiff Punjab National Bank was entitled to receive the amount and decree of Rs. 4,49,853/- was passed with further interest of 21% p.a. from 30.11.1992 till the date of realization and further cost of the suit was also allowed. Hence this appeal. 8. Mr. Rajeev Shrivastava, learned counsel for the appellant J.M.A. Stores Pvt. Ltd., supplier/seller of the vehicle, would submit that Ramesh Kumar, who was the purchaser of the vehicle had deposited the said draft of Rs. 34,49,062/- dated 08.07.1991 with them. The said draft was deposited in the account of the Allahabad Bank, and the draft in turn was sent for clearance. He further submits that according to the pleading, the plaintiff contended that they are the holder in due course and initial holder of the draft was defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd draft. It is stated in case of non-payment of said demand draft the bank could not have been sued. He further submits that that being the legal position, even if it is assumed for the sake of arguments that the appellants were the holder in due course, he could not have sued for recovery of the money. Reference is made to Section 8 & Section 9 of the N.I. Act and submits that as per Section 58 of the N.I. Act, unless the instrument is negotiable, the same cannot be pressed for payment. It is further submitted that when forgery exists then the burden shifts on the person who claims it to be genuine and was holder in due course as per Section 118 of the N.I. Act. It is submitted that the order of the Court below is well merited which do not call for any interference. 10.Heard learned counsel for the parties and perused the evidence. 11. To appreciate the evidence it would be necessary to quote the Section 8 & 9 of the Negotiable Instruments Act, 1881, which reads as under:- 8. "Holder". - The "holder" of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he different marking and other endorsements are on it with the specific numbers in code. On prima facie inspection it do not show to be fake. The crossexamination of J.Ekka would show that at the relevant time when the draft was negotiated, he was working in the Branch as an Officer. He has deposed that demand draft (Ex. P-2) was issued from Punjab National Bank, Dhaniyawa Branch and the said document was alleged to be have been stolen. In the cross-examination he has stated that on 12.07.1991 the alleged draft Ex. P-2 was received and the payment was made. He further deposed that Ex. P-2 bears whose signature he cannot say along with the fact that who had issued the same. The witness further deposed that the said draft was send from the Allahabad Bank . Most importantly he admitted the fact that the draft was found to be correct. It is stated therefore, the payment was made and after that the draft for clearing was sent to Dhaniyawa Branch of Punjab National Bank. 15. The deposition to the effect that the draft should have contained the signature of the responsible officer is an opinion of the witness and the witness himself is unaware as to who's signature was there in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gross negligence comes to fore, to find out any contemplated fraud a person cannot be denied of his right. There would be two methods of ascertaining the intention of the party to the instrument, one would be subjective and the other would be objective. Subjective test requires honesty and objective due care and caution. In the subjective test the Court has to see the holders own mind and the only question is did he take the instrument honestly in the objective test on the other hand, the Court has to go beyond the holders mind and see whether much care was taken as a reasonable person ought to have been taken. 18. The evidence in this case would show that when the draft was given to the seller, the Tata Engineering they deposited in the account and bare perusal of the draft do not show that any defect exist rather the small entries and intricacies of code is making a mark exist in the draft. As such, the appellant cannot be said to be were not holder in due course to receive the money. 19. Further J. Ekka (PW-1) has deposed that the alleged draft (Ex. P-2) when was sent for negotiation to the Dhaniyawa Branch of Punjab National Bank, they received a letter by 01.08.1991 that n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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