JUDGMENT 1. - This judgment will dispose of all the above numbered three second appeals. The following substantial questions of law have been framed in S.B. Civil Second Appeal No. 138/1981 at the time of admission: 1. If the appellant company is liable to the plaintiff whether the responsibility of repayment was solely that of the G.P.C. ? 2. Whether the G.P.C. made the repayment to an unauthorised person, can the appellant company be made liable? 3. Whether the loss of the pass-book has been proved to have been occasioned by theft, if the appellant company is liable ?" 2. So far as S.B. Civil Second Appeal No. 245/1981 Union of India v. Kamla Devi and another is concerned, the learned Judge framed the following questions of law: "1. Whether the initial burden to prove the plaintiff's case lies on the plaintiff himself or he can get the benefit of weakness of the defendant's case without proving its own case? 2. Whether in the facts and circumstances of the case, the signature on the withdrawal form can be said to be fictitious one in view of the fact that the oral testimony of the plaintiff was rebutted by the defendant's oral testimony and further no evidence of expert was produced by the plaintiff which was available and could be the best evidence to support the plaintiff's case? 3. Whether when the withdrawal form was admitted along with pass book as per rules and the signature of the drawer was verified by the official concerned bonafidely, there is presumption about the valid payment or not ?" 3. In S.B. Civil Second Appeal No. 78/1982, Union of India v. Dr. Narendra Kumar Narang and another, on 21st March, 1983 , the following substantial question of law was framed : "Whether in the facts and circumstances of this case the concerned employees of the Union of India in the postal department acted with such negligence in allowing the withdrawal of the amount in deposit as to give rise to a civil liability of the master to reimburse the depositor for the loss suffered by it on account of the fraudulent withdrawal?" 4. It will be seen that so far as two appeal Nos. It will be seen that so far as two appeal Nos. 138/1981 and 245/1981 are concerned, they arise out of the same Civil Suit No. 255/1976 Union of India v. Smt. Kamla Devi and Kamal and Company , which suit was filed for recovery of Rs. 4,000 / -. 5. So far as facts of the case are concerned, they are contained in the judgment of the learned trial court as well as of the learned Appellate Court and suffice to say that so far as civil suit No. 255/1976 is concerned, an application for purchase of a motor car (Fiat - 1100-G) was filed by Smt. Kamla Devi in accordance with clause-5 of the Motor Cars Distribution and Sale Control Order, 1959 (for short the Order) which order was made in exercise of the powers conferred on the central Government under section 18-G of the Industrial (Development and Regulation) Act, 1951 (65 of 1951), as required by sub-clause (2) of Clause 5 of the aforesaid Order Smt. Kamla Devi had opened a post-office saving bank account on 12th September 1973 and the account No. was 1021959. In fact it was a security deposit account with the post-office for a sum of Rs. 4,000/- and the pass-book was pledged with Kamal and Company, the dealer, as required in sub-clause (2) of Clause 5 of the Order. 6. Sub-clause (2A) of clause 5 of the Order provides that when the Motor Car is ready for delivery the dealer shall send intimation of that fact in writing to the pledger applicant along with the Post Office Saving Bank Pass Book and an authority authorising the pledger applicant to withdraw the money from the Post Office. It appears that a theft of the pass-book was committed in the office of Kamal and Co. and in the said pass-book the authority of Kamal and Company, the dealer, authorising the pledger i.e. Smt. Kamla Devi to withdraw a sum of Rs. 4,000/- along with interest from the post office was also there and on the strength of that authority and said amount of Rs. 4,000/- along with interest amount of Rs. 10/- was withdrawn on 21st November 1973. 4,000/- along with interest from the post office was also there and on the strength of that authority and said amount of Rs. 4,000/- along with interest amount of Rs. 10/- was withdrawn on 21st November 1973. There is no dispute between the parties that Smt. Kamla Devi did not either receive the pass book or the pass-book with the authority authorising her to withdraw the amount was sent to her by Kamal and Company or Mr. J.G. Sharma claiming to be the messenger of Smt. Kamla Devi and allegedly to have the authority to withdraw the amount presented the pass-book along with authority of the dealer and amount was paid to Shri Sharma. 7. Smt. Kamla Devi was informed on 23rd January 1974 by Kamal and Company that the pass-book and her application form for registration of Premier Padmini Fiat Car has been misplaced in the office and one Shri Kalra from the Post Office came to Smt. Kamla Devi and enquired to her as to whether she has received the payment of Rs. 4,010/- and whether she has signed the withdrawal form and she denied to have signed the withdrawal form. She then filed a suit against the Union of India as well as Kamal and Company in the Court of learned Civil Judge, Jaipur City, Jaipur in which it was averred that it was because of the negligence and carelessness of Kamal and Company that the passbook was lost and facilitated the withdrawal of the amount because it contained the authority of Kamal and Company authorising to withdraw the amount from the post office. It was also averred that even officers of the Union of India were negligent and they did not act properly. The suit was. contested by both the defendants and the learned trial court decreed the suit against both the defendants, i.e. Union of India and Kamal and Company and the appeals filed by both the defendants Union of India and Kamal and Company were dismissed. It is now two second appeals have come to this Court. 8. So far as Civil Second Appeal No. 78/1982 is concerned, Dr. Narendra Kumar Narang had also filed an application for registration of a Fiat Car and as required under Sub-Clause (2) of Clause 5 of the Order, had opened a saving Bank account with the post-office and had deposited a sum of Rs. 8. So far as Civil Second Appeal No. 78/1982 is concerned, Dr. Narendra Kumar Narang had also filed an application for registration of a Fiat Car and as required under Sub-Clause (2) of Clause 5 of the Order, had opened a saving Bank account with the post-office and had deposited a sum of Rs. 4,000/- It appears that not only the pass-book of Kamal and Company but also the pass-book of Dr. Narendra Kumar Narang as not traceable and presumably a theft of it was committed, presumably by an employee of Kamal and Company and it too contained the authority of Kamal and Company to withdraw the amount alone with interest. On coming to know that the amount has been withdrawn, Dr. Narang filed a suit for recovery of Rs. 4,000/- along with interest in the court of Munsiff Magistrate, Jaipur City (West). The car having been booked by him on 4.2.1972 and having been registered with Kama] and Company at Sr. No. 2332. He has deposited a sum of Rs. 4,000/-in General Post Office, Jaipur and pass Book No. 1017768 was issued and the same was pledged by him with Kamal and Company. He informed Kama] and Company on 9th July 1974 that he has cancelled his order dated 4.2.1972 and requested the company to return the pass-book. It was revealed to him later on on correspondence that one Naveen Mehta had taken the pass-book from Kamal and Company and had withdrawn the amount with interest by making forged signatures of Dr. Narang. It was averred that if Kamal and Company would have taken precautions for safe custody of the pass-book, the passbook would not have been lost, same could not have been presented for payment in the General Post Office and without production of the pass-book the payment could not have been made. It was further averred that the saving clerk did not take proper care and attention and was negligent and had he been careful, the forgery could have been deducted and amount could not have been withdrawn. 9. The learned trial court under its judgment decreed the suit against the Union of India and did not decree the suit against Kamal and Company. 9. The learned trial court under its judgment decreed the suit against the Union of India and did not decree the suit against Kamal and Company. But surprisingly, the trial court though framed issue No. 3 in respect of negligence, if any of Kamal and Company in the loss of the pass-book, but did not give any finding on issue No. 3 and merely contended by saying that it was the liability of the post office which had undertaken to the depositor to refund the amount and decreed the suit against Union of India. The learned Appellate Court maintained the judgment and decree of the learned trial court. 10. Arguments have been heard on behalf of the learned counsel for the parties. The substantial questions of law which were framed while admitting the second appeals. have already been extracted in the earlier part of this judgment and it will be seen from the aforesaid extracted questions of law that basically two questions of law arise and for the disposal of all the three above number second appeals, I will re-frame those questions of law as under "1. Whether the post-office authorities are liable to make the payment to the depositor who has opened security deposit account under Clause 5(2) of the Order, in case the amount has been withdrawn by a fictitious person and 2. Whether for the act of the post-office because loss of the pass-book deposited/pledged with Kamal and Company is due to negligence of that Company and it facilitated the withdrawal of the amount to a fictitious person, whether the Company (Kama) and Company) is also jointly and severally liable to make the payment." 11. While dealing with-the second appeals, the finding of facts recorded by the courts below have to be taken as correct. 12. While dealing with-the second appeals, the finding of facts recorded by the courts below have to be taken as correct. 12. So far as S.B. Civil Second Appeal No. 138/81, Kamal and Company v. Smt. Kamla Devi and another is concerned, it will be seen from the perusal of the appellate judgment of the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur that the learned Judge while dealing with issue No. 2 as to whether the defendant No. 2, Kamal and Company had kept the pass-book with care, recorded a finding that as no evidence has been led on behalf of Kamal and Company that all reasonable and necessary care was taken by it to keep the pass-book in safe custody, the finding of the learned trial court was up-held by the learned Appellate Court. It can, therefore, be said that it was because of the negligence of Kamal and Company that there was loss of passbook which was in its custody. There can hardly be any dispute that the loss of pass-book and the pass-book landing in the hands of some other person, facilitated the withdrawal of the amount by a person other than the depositor Kamla Devi. A perusal of Clause 5(2A) of the Order will show that only when the Motor Car is ready for delivery, the dealer is required to send intimation of that fact in writing to the pleader applicant along with the post office savings Bank pass-book and an authority authorising the pledger applicant to withdraw the money from the post office. Therefore, without the authority of the dealer, authorising the pledger applicant to withdraw the money the pledger applicant can not withdraw the money from the post office. A bare reading of the pass-book which has been filed in the court will show that there is a seal of Kamal and Company and there are also signatures of some-body from that company authorising the pledger to withdraw the money from the post office. It can, therefore, be said that it was because of the negligence of Kamal and Company that the pass-book was lost and landed in the hands of some-body and it facilitated him to withdraw the money because it contained the authority of Kamal and Company authorising the pledger to withdraw the money. 13. It can, therefore, be said that it was because of the negligence of Kamal and Company that the pass-book was lost and landed in the hands of some-body and it facilitated him to withdraw the money because it contained the authority of Kamal and Company authorising the pledger to withdraw the money. 13. It was contended by the learned counsel for Kamal and Company that under the Order, the money deposited under the security deposit account was in no case payable to Kamal and Company and only the depositor was entitled to withdraw the amount, no doubt on authority from Kamal and Company authorising the pledger to withdraw the money from the post office. He, therefore, contends that in no case the liability for the amount of Rs. 4,000/- even if it is proved that it was withdrawn by fictitious person and not by the depositor the pledger Kamal and Company is held liable. Learned counsel contended that Kamal and Company and the post-office authorities cannot be said to be joint wrong doer and therefore, no liability can be fastened on Kamal and Company and in support of this contention learned counsel referred to the case of Calico Printers Association Ltd. v. Mitsubishi Shoji Kaisha Ltd., AIR 1938 Bombay 413 . It was a case under patents and Designs Act and question arose about infringement of registered design. In my opinion that case is not applicable to the facts of the instant cases, because in the facts and circumstances, it can be said and has been rightly said by the courts below that it must be one of the employees of Kamal and Co. who must have and perhaps committed the theft of the pass-books including the pass-book in question and, therefore, it is because of negligence as held by the courts below that Kamal and Company failed to take all precautions for the safe custody of the pass book, pass-book was lost and it was having the authority of Kamal and Company authorising the pledger to withdraw the amount from the post office. Therefore, Kamal and Co. will be liable for the wrong, for the negligence of it as held by the courts below. 14. Coming to the other case of Dr. Therefore, Kamal and Co. will be liable for the wrong, for the negligence of it as held by the courts below. 14. Coming to the other case of Dr. Narang, a finding has been recorded by the learned courts below that there was no negligence so far as Kamal and Company is concerned and every case is decided on its own facts. The finding of fact, unless it is perverse, cannot be reversed in second appeal even if on evidence on record possibility of the other finding could be arrived at is there and finding of fact should not be disturbed in second appeal. Therefore, so far as case of Dr. Narang, S.B. Civil Second Appeal No. 78/1982 is concerned, the finding of fact that there was no negligence of Kamal and Company in keeping the pass-book in safe custody, does not call for any interference. 15. In all the cases now the question arises about the liability of postal authorities, so far as withdrawal of the amount admittedly by fictitious persons. It has been held by the courts below that neither Smt. Kamla Devi nor Dr. Narang who were the depositors and who have open the security deposit accounts under Clause 5(2) of the Order had in fact withdrawn the amount and the amount having been withdrawn by some-body also signing for them. In other words, a finding has been recorded that the signatures on the withdrawal forms of Smt. Kamla Devi and Dr. Narang are fictitious. It was contended by the learned counsel for the Union of India that no liability can be fastened on the Union of India because all precautions and attention was taken by it. There was comparison form the specimen signatures. Learned counsel contended that if on visual comparison it appears that the signatures were identical it was not expected of the postal authorities to have minutely examined the signatures by Ultraviolet rays or any other process. Learned counsel, therefore, contended that the learned courts below have wrongly decreed the suit so far as Union of India is concerned. In support of his contention the learned counsel has referred to the case of Bank of Maharashtra v. Automotive Engineering Company, 1993 (1) UJ (SC) 240 . In that case the Apex Court was dealing with a case of a Nationalised Bank. In support of his contention the learned counsel has referred to the case of Bank of Maharashtra v. Automotive Engineering Company, 1993 (1) UJ (SC) 240 . In that case the Apex Court was dealing with a case of a Nationalised Bank. A cheque was presented to Union Bank of India, Thana Branch for crediting the amount in the account of Shri B.M. Shah. The same was passed for Rs. 6,500/- and the amount was debited to the account of the defendant. There was sufficient amount in the account of the defendant with the plaintiff bank. An objection was raised by the defendant that the amount was wrongly debited to his account and the amount under the said cheque was Rs. 95.98/- and the writing on the cheque was chemically altered with regard to the date, the name of the payee and also the amount. The Apex Court dealt with the evidence and said that the then agent of the Bank had taken the care to verify the serial number of the cheque, the signature on the cheque with the specimen signature of the constituent, namely the defendant and on a scrutiny of the cheque visually no defect could be detected by him. Dealing with the provisions of Section 31 of the Negotiable Instruments Act the Apex Court said that under it the bank had liability to honour the said cheque and make payment if the cheque was otherwise in order. The court said that in the facts of the case, there was no occasion to doubt about the genuineness of the cheque from the apparent tenor of the instrument. There is nothing on record from which it can be held that the payment of the said cheque has not been made in good faith. Although no straight-jacket formula can be laid down to cover each case of negligence of a banker and the question of negligence requires to be decides in the facts and circumstances in each case, it does not appear to us that the appellant bank can be held to be guilty of negligence simply because an ultraviolet ray lamp was not kept in the branch and the cheque in question was not subject under the ultraviolet ray lamp. The Apex Court further said that we do not think that there was no justification for the courts below to proceed on the footing that the Bank had failed to take reasonable care in passing the cheque for payment without subjecting it for further scrutiny under ultraviolet ray lamp. The Apex Court, therefore, allowed the appeal. 16. It was contended on the strength of the aforesaid authority by the learned counsel that the postal authorities had taken all reasonable care in passing the withdrawal slip for payment. They had seen the pass-book which the person who presented possessed and the pass-book contained the authority of Kamal and Company to withdraw the amount. It had the seal of Kamal and Company. Even the signatures of the depositor on the withdrawal slip on visual comparison tailed with the specimen signatures with the postal authorities and, therefore, it cannot be said that there was any negligence of the postal authorities so as to make them liable for payment of the amount in each of the case. Learned counsel further contended that there are Post Office Saving Bank Rule, 1965 and Rule 249/18 deals with responsibility of the Saving Bank which is as under: "(i) The Post Office Savings Bank shall not be responsible to a depositor for any fraudulent withdrawal by a person obtaining possession of the pass book or a cheque from the depositor. (ii) The Post Office Savings 'Bank shall not be liable if any fraud takes place due to failure of the depositor to ensure that the amount sought to be withdrawn is entered in the application for withdrawal before the same is presented at or sent duly signed by him to the Post Office for withdrawal. (iii) The Post Office Savings Bank shall not be responsible to a depositor, if he or, in case the withdrawal form is presented by his agent, the agent fails to ensure that the receipt for the payment is signed by him or the agent, as the case may be, only at the time of presentation of the application for withdrawal." 17. Learned counsel for Union of India, therefore, contends that under the aforesaid rule and more so sub-rule (i) the Post Office savings Bank is not responsible to a depositor for any fraudulent withdrawal by a person obtaining possession of the pass book or a cheque from the depositor. Learned counsel for Union of India, therefore, contends that under the aforesaid rule and more so sub-rule (i) the Post Office savings Bank is not responsible to a depositor for any fraudulent withdrawal by a person obtaining possession of the pass book or a cheque from the depositor. But Rule 425, Chapter 8-I of the Post Office and Telegraph Manual Vol. 6, provides mode of withdrawals. In case of a depositor or his agent or messenger coming to withdraw the amount and filing a withdrawal slip, it is the duty of the counter clerk to require the depositor or agent or messenger to sign the warrant of payment and then to compare his signatures with the signatures of the depositor on the application for withdrawal or if the payment is to be made to the agent or passenger with the later signatures. In both the cases payment was not made to the depositor, but to the massanger of the depositor. A finding has been recorded by the court below that reasonable care and precaution was not taken by the postal authorities while comparing the signatures of the depositor on the withdrawal slip with the specimen signatures. 18. It will be seen that so far as case of Smt. Kamla Devi is concerned, a bare perusal of the pass-book X.A-1 would show that the authority to the messenger was dated 20.11.1971 when the security deposit account was itself opened on 12.9.1973. If any care and precaution would have been taken, then anybody would have been put on alarm and it can, therefore be said that the finding has been rightly recorded that no care and precaution was taken by the counter clerk and the postal authorities in making the payment to the messenger of Smt. Kamla Devi. 19. Coming to the case of Dr. Narang, even the then Post Master said that no comparison of the signatures of Dr. Narang on the withdrawal slip with the specimen signatures was made. The Union of India could have taken a plea that care and Attention was taken to compare the signatures and visually the fraud in signatures could not be deducted. It will be seen from the perusal of the record that a charge sheet was given to Vasumal, and Hanuman Sahai for negligence in allowing the withdrawal of the amount. 20. I do not find any force in any of the appeals. It will be seen from the perusal of the record that a charge sheet was given to Vasumal, and Hanuman Sahai for negligence in allowing the withdrawal of the amount. 20. I do not find any force in any of the appeals. All the above numbered three appeals are hereby dismissed. 21. But before parting with the case of Union of India v. Dr. N.K. Narang, S.B. Civil Second Appeal No. 78/1982 , it may be stated that on 21.3.1983, this court while admitting the case, in the stay application no. 56/1982 had recorded an undertaking of Shri B.P. Gupta for Union of India that if the appeal of the Union of India fails, the Union of India shall pay to the decree holder in addition to the decretal amount along with interest to date as allowed in the decree further interest from today till payment at the rate of interest, allowed by the Nationalised Banks on term deposits for one year. It is hereby directed that the Union of India under the aforesaid order will pay additional interest to Dr. Narang and Dr. Narang will be entitled to the aforesaid interest. 22. Consequently, I find no force in any of the above numbered three second appeals and, therefore, all the above numbered three second appeals are dismissed. Costs made easy.Appeal dismissed. *******