Nandubhai D. Patel v. STATE BANK OF INDIA — 1995 DIGILAW 414 (GUJ)

J. N. BHATT, J. ( 1 ) ON 28th December, 1970, at about 11. 00 a. m. , theft of steel cash box containing Rs. 19,143. 70 ps. had taken place at the local Head Office of the State Bank of india, Bhadra Branch, at Ahmedabad. The appellant, who is the original plaintiff, and one mr. V. H. Shah were working as cashiers-cum-co-tellers in the said branch of State Bank of India. The plaintiff was working as payment cashier ad Mr. Shah was working as receiving cashier at the relevant time. ( 2 ) THE incident of theft was reported by the plaintiff and co-teller Mr. Shah to the chief Cashier. The warning of emergency bell installed in the branch was also sounded. The doors of the banks branch were closed and search was made. Unfortunately, the heavy steel cash box containing the aforesaid cash amount could not be traced and found. The plaintiff and his co-teller were found negligent and on account of their negligence, the order was passed requiring the plaintiff and the co-teller Mr. Shah to pay half the share of stolen cash amount of Rs. 19,143. 70 ps. The order was passed on 17th June, 1971. The plaintiff had also paid an amount of Rs. 4500/- pursuant to the order passed against him. ( 3 ) THE appellant who is the original plaintiff, thereafter, instituted Civil Suit No. 1758/71 against the respondent original defendant, State Bank of India, for declaration and injunction. The plaintiff sought declaration that he is not responsible for payment of the amount imposed by the aforesaid order. Thus, the declaration is sought that the plaintiff is not responsible as there was no negligence on his part for the alleged incident of theft. He also prayed for injunction restraining the defendant Bank or its agents from recovering any amount from the plaintiff for the incident for theft which occurred, on 28th december, 1970. The plaintiff also further sought the relief for a decree of an amount of rs. 4500/- from the defendant Bank, as according to him, the Bank had illegally recovered the said amount from him. ( 4 ) THE defendant Bank appeared and resisted the suit by filing written statement, at ex. 9, inter alia, contending that there was negligence on the part of the plaintiff and co-teller Mr. Shah for the theft of cash box containing the case amount. ( 4 ) THE defendant Bank appeared and resisted the suit by filing written statement, at ex. 9, inter alia, contending that there was negligence on the part of the plaintiff and co-teller Mr. Shah for the theft of cash box containing the case amount. Thus according the defence of the Bank, the loss or disappearance of the cash box was due to gross negligence of the plaintiff in not handling it properly. The allegations made in the plaint came to be traversed. The Bank has also relied on the letter of undertaking signed by the plaintiff in his capacity as an employee or cashier of the Bank. The liability imposed by the Chief Cashier on the plaintiff and his co-teller cash to the extent of a sum of Rs. 9571. 80 ps. in view of theft of cash box is supported by the Bank. The bank has also contended that after passing of the order recorded by the Chief Cashier directing the plaintiff to pay half amount of the cash lost along with cash box, the plaintiff paid an amount of Rs. 4500/- and when he was denied the payment "of remaining amount by smaller instalments as requested by him, the suit came to be filed without any legal right. In short, the Bank relied on the negligence of the plaintiff and also other circumstances including the undertaking given by the plaintiff whereby the plaintiff has, unconditional, given an undertaking that for all or any losses, damages, costs, and expenses and charges which may be sustained or incurred by the Bank because of any act, omission, commission, default or any other reason due to the fault of the plaintiff. ( 5 ) THE Trial Court raised issues, at Ex. 21, in the light of the pleadings of the parties. The plaintiff relied on his sole evidence. The defendant Bank relied on the evidence of the following witnesses :1 Mr. V. H. Shah, Co-teller, at Ex. 31. 2. Mr. C. T. Patel, Head Cashier, at Ex. 35. 3. Mr. Surajudin Gupta, Peon, at Ex. 36. 4. Mr. P. P. Jhumarwala, Chief Cashier, Ex. 37. 5. Mr. H. V. Patel, Incharge or Acting Chief Cashier on that day, Ex. 40. ( 6 ) ON assessment and appraisal of the evidence relied on by the partie. 31. 2. Mr. C. T. Patel, Head Cashier, at Ex. 35. 3. Mr. Surajudin Gupta, Peon, at Ex. 36. 4. Mr. P. P. Jhumarwala, Chief Cashier, Ex. 37. 5. Mr. H. V. Patel, Incharge or Acting Chief Cashier on that day, Ex. 40. ( 6 ) ON assessment and appraisal of the evidence relied on by the partie. s, the Trial court dismissed the suit with costs on 31st January, 1978 holding that (1) the plaintiff has failed to prove that there was no negligence on his part in the incident of theft which occufed on 28th December, 1970 at about 11. 00 a. m. in the Bhadra Branch of State Bank of India, Ahmedabad; (2) that the plaintiff has failed to prove that the impugned order requiring the plaintiff to pay half the share of Rs. 19,143. 70 is illegal and not enforceable at law; (3) that the plaintiff has failed to establish that the impugned order recorded by the chief Cashier, on 7th June, 1971 is bad, ultra vires, or against the principles of natural justice and (4) that the plaintiff is not entitled to the decree of Rs. 4500/- as prayed for. ( 7 ) BEING aggrieved by the judgment and decree recorded by the learned City Civil judge (Court No. 4), at Ahmedabad, in Civil Suit No. 1758 of 1971, the original plaintiff has, now, come up before this Court challenging its legality and validity by filing this first appeal by invoking the provisions of Sec. 96 of the Code of Civil Procedure, 1908 (Code ). ( 8 ) THE learned advocate appearing for the appellant original plaintiff has seriously criticized the approach of the Trial Court and the appraisal and assessment of the evidence and also the relevant provisions of the Indian Evidence Act, 1872 and the Indian Contract act, 1872. It has been contended that there was no any negligence on the part of the plaintiff in the incident of disappearance of cash box or theft thereof containing cash amount of Rs. 19,143. 70 ps. The impugned order recorded by the Chief Cashier, on 17th june, 1971 is illegal and not enforceable. The submissions raised on behalf of the appellant original plaintiff are countered by the learned advocate appearing for the respondent original defendant Bank with equal vehemence. 19,143. 70 ps. The impugned order recorded by the Chief Cashier, on 17th june, 1971 is illegal and not enforceable. The submissions raised on behalf of the appellant original plaintiff are countered by the learned advocate appearing for the respondent original defendant Bank with equal vehemence. ( 9 ) BEFORE the merits of the appeal are examined, it may be, noted that the following facts are no longer in controversy :1. That the plaintiff and one Mr. V. H. Shah, were working as cashiers and co-tellers on 28th December, 1970 in the Branch Office of State Bank of india, Bhadra Branch, Ahmedabad. 2. That the plaintiff was the paying cashier-cum-co-teller and Mr. Shah was receiving cashier and co-teller at the relevant time. 3. That there was theft of steel cash box containing a sum of Rs. 19,143. 70 ps. immediately after opening of the Bank on that day. 4. That the plaintiff had executed an undertaking in favour of the Bank, whereby, he had undertaken the liability for and any losses, damages, costs, expenses, and charges which may be sustained or incurred by the Bank because of any act, omission, default, or for any other reasons on the part of the plaintiff and he has agreed to make such loss good as and when called upon to do so by the Bank. 5. That the plaintiff had admitted his liability to pay half the amount along with co-teller Mr. Shah and he had, as such, paid an amount of Rs. 4500/ -. 6. That the plaintiff had also requested to grant instalments of about Rs. 50/- per month for the payment of remaining amount of the half of the share he has agreed to pay in view of the order passed by the Chief Cashier on 17th June, 1971. 7. The Bank was prepared to consider the request of the plaintiff provided the amount of monthly instalment not less than Rs. 250/- per month. 8. That the co-teller Mr. Shah had paid half the share of the said amount imposed by virtue of order passed by the Chief Cashier on 17th June, 1971 in view of the occurrence of the theft of cash box containing a sum of Rs. 19,143. 70 ps. on 28th December, 1970. 9. That the incident had occurred on 28th December, 1970 in first hour of opening of the Bank and Mr. 19,143. 70 ps. on 28th December, 1970. 9. That the incident had occurred on 28th December, 1970 in first hour of opening of the Bank and Mr. C. T. Patel was working as Head Cashier and one Shri Sirajudin Gupta was serving in the Bank as Peon who has carried the cash box to the counter on that day. 10. One Mr. Jhumerwala, who was serving as Chief Cashier at the relevant time was on leave on that day and in his place one Mr. H. V. Patel was given charge who was acting Chief Cashier on the said day at the relevant time. 11. That there is a teller scheme which is produced at Ex. 50. ( 10 ) THE controversy would revolve round as to whether the plaintiff was accountable and responsible co-extensive with that of Mr. Shah for an account of theft from cash box containing an amount of Rs. 19. 143. 70 ps. On assessment and analysis of the evidence, the Trial Court found that the plaintiff has not been able to show that there was no negligence in the incident that occurred on 28th December, 1970 in the office of the State bank of India, Bhadra Branch, Ahmedabad. This finding of fact recorded by the Trial court is seriously under challenge in this appeal. ( 11 ) THE Trial Court found that the plaintiff has not been able to prove that there was no negligence on his part on that day. Again, it may be recalled that the plaintiff relied on his sole testimony, at Ex. 23. The Trial Court also found that the case of the plaintiff that he was not negligent in the incident of theft on 28th December, 1970 is disproved by the evidence of the defendant Bank. The Trial Court placed reliance on the evidence of co-teller-receiving cashier Mr. V. H. Shah and also on the evidence of Head Cashier C. T. Patel, and Acting Chief Cashier Mr. H. V. Patel. The Banks witness, Mr. Sirajudin Gupta who had carried the cash box to the counter did not support the version of the Bank. The trial Court also placed relied on the tellers scheme produced, at Ex. 50, and also on other facts and circumstances in dismissing the suit of the plaintiff. H. V. Patel. The Banks witness, Mr. Sirajudin Gupta who had carried the cash box to the counter did not support the version of the Bank. The trial Court also placed relied on the tellers scheme produced, at Ex. 50, and also on other facts and circumstances in dismissing the suit of the plaintiff. ( 12 ) IN the course of marathon submissions before this Court, the learned advocate appearing for the appellant original plaintiff has taken this Court through all the testimonial collections recorded before the Trial Court and relied on by the parties. It is submitted that in order to. hold the plaintiff liable for the incident of the theft of cash box, the material averments and evidence of entrustment of cash box are not at all proved. It is, vehemently, contended that the liability would not arise until the entrustment of cash box with cash to the plaintiff in his capacity as a cashier-cum-co-teller, is successfully shown by the defendant. It is further submitted that the entrustment is not proved and therefore, the order of the Chief Cashier imposing the liability to pay half the amount recorded on 17th June, 1971 is not only inequitable, but is illegal and unenforceable. ( 13 ) THE aforesaid submissions, prima facie, appear to be subtle, but not sound and sustainable. The Trial Court has, rightly, found from the evidence on record that the plaintiff has failed to show that there was no negligence on his part in the incident of theft of cash box along with cash. Not only that the Trial Court has also rightly round that the said version of the plaintiff is disproved by the evidence of Banks witnesses. After having examined the testimonial col pection, this Court has no hesitation in finding that the plaintiff has failed to prove his case that he was not negligent in the incident of theft of cash box along with cash. If the plaintiff fails to prove his case, the suit, obviously, is required to be dismissed. Whereas, in the present case, the Trial Court has, rightly, found that the version of the plaintiff is disproved by the clear and positive evidence of co-teller mr. V. H. Shah, at Ex. 31, evidence of Mr. C. T. Patel, Head Cashier, Ex. 35 and Mr. H. V. Patel, Acting Chief Cashier, Ex. Whereas, in the present case, the Trial Court has, rightly, found that the version of the plaintiff is disproved by the clear and positive evidence of co-teller mr. V. H. Shah, at Ex. 31, evidence of Mr. C. T. Patel, Head Cashier, Ex. 35 and Mr. H. V. Patel, Acting Chief Cashier, Ex. 40 and also in the light of the tellers system at Ex. 50. This finding of fact and conclusion recorded by the Trial Court has remained incontrovertible in the light of the evidence on record. Since this Court brodly agrees with the reasons assigned by the Trial Court and the assessment of the evidence and the observations of the Trial Court is paras 22, 23, 24 and 25 and the ultimate conclusion, it would not be necessary to reiterate and repeat the same grounds on which the suit came to be dismissed. This proposition of law is very well established. When the Appellate Court broadly agrees with the views and the ultimate conclusion recorded by the Trial Court, it would not be necessary to repeat the grounds and reasons. 16,9. 95. ( 14 ) THE appellate Court has placed reliance on the aforesaid testimonial collections and has also placed reliance on the conduct of the appellant before and after the incident of theft. The admission made by the plaintiff about his liability is also considered by the trial Court. The plaintiff had paid an amount of Rs. 4500/- towards his share and he had requested the Bank authority to grant small instalments for the payment of remaining amount of his share. The admission of liability and payment of amount coming to the share of the plaintiff is, seriously, criticized by the learned advocate for the plaintiff. ( 15 ) IN support of the contention that the admission of the plaintiff in his evidence is, wrongly, relied on treating it as an admission, reliance is placed on a decision of the Apex court in Chikkam Koteshwara Rao vs. Chikkam Subbarao and Ors. , AIR 1971 SC 1542 . It is held by the Apex Court in this decision that admission must be read with evidence given by the party. In the present case, the plaintiff has made one admission in his evidence, at Ex. 23, to the effect that he and co-teller V. H. Shah were, equally, responsible and liable as co-tellers. , AIR 1971 SC 1542 . It is held by the Apex Court in this decision that admission must be read with evidence given by the party. In the present case, the plaintiff has made one admission in his evidence, at Ex. 23, to the effect that he and co-teller V. H. Shah were, equally, responsible and liable as co-tellers. The contention is that this statement is wrongly relied upon as an admission by the Trial Court. In support of this submission, the aforesaid decision is relied on. There cannot be any dispute about the fact that the statement making an admission has to be read in the context in which it is made and not de-hors therefrom. In the light of the evidence of the plaintiff himself at Ex. 23, it cannot be said that the admission made by him is not clear and ambigous. Therefore, the contention in this behalf cannot be accepted. The aforesaid decision of the Supreme Court is also of no avail to the plaintiff. ( 16 ) THE reliance is also placed on the decision of the Supreme Court rendered in nagubai vs. B. Shama Rao, AIR 1956 SC 593 . Relying on this decision, it is contended that the admission is not conclusive as to the truth of the matter stated therein. This proposition is quite correct and is very aptly expounded by the Apex Court in the said decision. While interpreting the provisions of Sec. 21 of the Evidence Act, 1872, the supteme court has held that it is no doubt true that whay a party himseld admits to be true may reasonably be presumed to be so. But before this rule can be invoked, it must be shown that there is clear and unambiguous statement by the party such as will be conclusive unless explained. Thus an admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence and it is open for the maker of the statement to show that it was erroneous or untrue. The plaintiff has not been able to prove that such admission was untrue or erroneous. The admission also is clear and unambiguous. Therefore, the learned advocate for the plaintiff is not in a position to make any capital out of the aforesaid decision. The plaintiff has not been able to prove that such admission was untrue or erroneous. The admission also is clear and unambiguous. Therefore, the learned advocate for the plaintiff is not in a position to make any capital out of the aforesaid decision. ( 17 ) THE expression admission is defined in Sec. 17 of the Indian Evidence Act, 1872. Sec. 17 reads as under :"an admission is a statement, oral or documentary, which suggests any reference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. " admission is a statement of fact oral or documentary made by a party or a persons connected with him in any of the ways prescribed in Sec. 18 to 23 of the Indian Evidence act under certain circumstances. The statutory definition of the expression admission in sec. 17 is not complete as it does not specifically define the persons and circumstances concerned and therefore, reference will have to be made to Secs. 18 to 20 to examine and appreciate the implication thereof. Sec. 17 of the Indian Evidence Act, suggests that an admission is a statement leading to an inference as to the fact in issue or relevant fact made by persons and under certain circumstances enumerated in Sec. 18 to 20. ( 18 ) SINCE the main attack is on the admission of the plaintiff with regard to the liability to pay his share along with his co-teller of the stolen cash of the Bank, it would be necessary and expedient to set out the requisites of admission. According to the settled proposition of law, essentials of admission are as under : (1) It is a statement, oral or documentary; (2) The statement must suggest any inference as to any fact in issue or relevant fact; (3) It must be made by any of the following persons described in Sec. 18 to 20 : (A) A party to the proceedings as provided in Sec. 18; (B) An agent authorised by such party; (C) Parties representatives, i. e. party suing and sued in representative character make an admission; (D) Persons jointly interested in the subject matter of the proceedings. (E) Person from whom parties to the suit has derived the interest of title to the subject matter of the litigtation; (F) person whose position or liability is necessary to prove against a party in litigation. (G) A referee i. e. persons whom party to the litigation has expressly referred for information or opinion. This is in fact again a case of admission of a stranger; (H) Statements made by accused are also admissible as admission under Sec. 18; (I) The statements must be made under following circumstances : (A) Admission by a representative of a party, if made while holding such representative character; (B) Admission by persons jointly interested, if made during the existence of such an interest; (C) Admission of a person from whom parties to the litigation have obtained interest or title, if made during the pendency of such interest; (D) Admission by a stranger to the litigation when his statement would be relevant in a dispute brought by or against them; (E) Admission by a referee in a reference to a matter in controversy; ( 19 ) IT is very clear from the record of the present case that the plaintiff has made oral as well as documentary admissions with regard to his liability to pay his share along with co-teller of the stolen amount. The admissions are proved on record. The plaintiff has admitted in his evidence, at Ex. 23, that he and Mr. V. H. Shah were equally responsible and liable as co-tellers. This statement of the plaintiff contains an admission and it is clear and unambiguous. No doubt, it cannot be said to be conclusive. But the plaintiff has not been able to show that the said statement or an admission as such was untrue or ambiguous. He has not been able to lead evidence to explain such an admission. ( 20 ) APART from that, Ex. 49 is the letter written by the Chief Cashier to the Chief accountant of State Bank of India dated 9th June, 1971 wherein it was mentioned that orally, the plaintiff and the co-teller Mr. Shah had accepted the responsibility to make good the amount of theft before the Third Assistant. Thus the plaintiff had made admission before the Third Assistant and thereafter before the Acting Chief Cashier Mr. H. V. Patel and the intial payment of Rs. 4500/- was made by the plaintiff and co-teller mr. Shah had accepted the responsibility to make good the amount of theft before the Third Assistant. Thus the plaintiff had made admission before the Third Assistant and thereafter before the Acting Chief Cashier Mr. H. V. Patel and the intial payment of Rs. 4500/- was made by the plaintiff and co-teller mr. Shah. The plaintiff had thereafter also requested the Bank authorities to grant monthly instalments for the payment of balance amount. It is, therefore, very clear that the plaintiff had made clear and unambiguous admissions which are proved on record and he has not been able to explain that they were not correct. . ( 21 ) THE admission in certain cases would be even by conduct. In certain cases conduct like that silence etc. may amount to an admission. No doubt, a conduct as such, strictly speaking, would not be an admission as defined under Sec. 17 as it is neither oral nor documentary. Sec. 8 of the Indian Evidence Act provides that the conduct is also relevant. The conduct, whether previous, contemporaneous, or subsequent must have a reference to the fact or a dispute in focus. The conduct relevant made by Sec. 8 is strictly influenced by the fact in issue or relevant fact and it does not include action resulting from some intermediate cause, questions or suggestions by other persons. Thus a conduct of any party to the litigation is relevant, if covered under Sec. 8 of the Indian Evidence act. ( 22 ) IN the light of the evidence on record, the previous conduct, contemporaneous conduct and subsequent conduct accepted and elicited qua the plaintiff in connection with the incident of theft would undoubtedly be relevant and it would radiate an imprint of guilty conscious of the plaintiff. The manner and mode in which the plaintiff reacted and behaved before and after the incident of theft of cash box along with the cash proved on record would go to show that the plaintiff is not an innocent person. He could safely be said to have remained indifferent and negligent. Had he and his co-teller Mr. Shah been little more circumspect and watchful, theft could have been averted. In view of the evidence on record and the relevant provisions of the Indian Evidence Act as aforesaid, the Trial Court has rightly placed reliance on the conduct and admissions made by the plaintiff. Had he and his co-teller Mr. Shah been little more circumspect and watchful, theft could have been averted. In view of the evidence on record and the relevant provisions of the Indian Evidence Act as aforesaid, the Trial Court has rightly placed reliance on the conduct and admissions made by the plaintiff. ( 23 ) IT is found from the record that there was an entrustment of cash box along with cash to the plaintiff. Therefore, reliance is rightly placed on by the Trial Court on the provisions of Sec. 151 of the Indian Contract Act, 1872. Chapter IX of the Indian contract Act, 1872, makes provision with regard to bailment. As per the provisions of sec. 148 of the Indian Contract Act, a bailment is delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor". The person to whom they are delivered is called the "bailee". Sec. 151 of the Indian Contract Act provides that the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. It is, therefore, clear that the diligence of an average prudent man is required from a bailee. The plaintiff was entrusted with the cash box containing cash of Rs. 19,143. 70 ps. Though he being a receiving cashier, he allowed the co-teller to receive cash from Vault. The cash box containing the cash was brought from vault to counter. The key was also given to the plaintiff. The plaintiff failed to perform his duty as a bailee. The cash box containing the aforesaid amount of cash admittedly was stolen. The Chief Cashier had fixed the liability of the plaintiff and co-teller Mr. Shah half to half for the amount of theft. The plaintiff was, therefore, rightly held liable for the payment of half the amount of and the order of the Chief Cashier dated 17th June, 1971 cannot be said to be illegal or unenforceable. The Chief Cashier had fixed the liability of the plaintiff and co-teller Mr. Shah half to half for the amount of theft. The plaintiff was, therefore, rightly held liable for the payment of half the amount of and the order of the Chief Cashier dated 17th June, 1971 cannot be said to be illegal or unenforceable. There is no dispute about the fact that the plaintiff has given an undertaking in favour of the Bank on 19th June, 1968. The unconditional undertaking covers the liability for all and any losses, damages, costs, expenses, and charges which may be sustained or incurred by the Bank because of any act, omission, commission or default or any other reason on the part of the plaintiff. Thus, the plaintiff has agreed by an undertaking to make loss good when called upon to do so by the Bank. It may also be mentioned that the teller system applied at the relevant time is produced at Ex. 50. It is very clear from the teller scheme that the teller will be solely responsible for the custody and safety for all cash entrusted to him in the course of his duty and for the protection of other items which represent money. The work procedure is also prescribed in the teller scheme. Every morning when the strong-room is opened, the Teller will take out his cash box and sign for it in the special register maintained for the purpose by the head cashier. The responsibility of the cash on hand and the cash box will at all times be of the concerned teller. Once the cash has been accepted into the vault, the responsibility for quantity and value would shift from the Teller to the Head Cashier. The system of teller is introduced in the banking institution so as to facilitate the customers and to fix up the procedure for receiving, retaining and returning the cash. In fact, in the modern banking management, teller system has a very important role to play. It has a long history, but it is not necessary to go into that minutely in this case. However, it is very clear that the teller system is introduced, evolved and very well equipped so as to provide good facilities to the customers of the Bank. It has a long history, but it is not necessary to go into that minutely in this case. However, it is very clear that the teller system is introduced, evolved and very well equipped so as to provide good facilities to the customers of the Bank. The concept of personalised service at the counter is one of the objects of teller system for which a person or an officer of the Bank is trained, equipped and paid more. In short, this Court is vitally concerned about the responsibility and liability of a teller. The teller system clearly goes to show that having once received the cash on hand or in cash box," the responsibility of the teller in case of any loss, damage or theft in respect of such cash, is on the part of the teller for which an undertaking is taken by the Bank and given by the teller. ( 24 ) HAVING regard to the facts and the evidence on record, this Court has hesitation in finding that the plaintiff has miserably failed to show that he was not negligent in the incident of theft occurred on 28th December, 1970 at about 11. 00 a. m. in the premises of State Bank of India, Bhadra Branch, Ahmedabad. He has also failed to prove that the order imposed by the Chief Cashier dated 17th June, 1971 is against the principles of natural justice or it is illegal and unenforceable. With the result, the plaintiff who is the appellant before this Court in this appeal has failed to establish his case. On the contrary, the respondent original defendant Bank has disproved the case of the plaintiff by leading clear, consistent and positive evidence to show that he was negligent and therefore responsible for the payment of half the amount of stolen cash from the counter along with cash box. The plaintiff made several admissions, including the payment of amount of Rs. 4500/- towards his half share and also requested the Bank to authority to grant small instalments so as to facilitate him to pay remaining amount of his share arising out of the impugned order passed by Head Cashier. The bank was ready to grant instalments, but not lower than the amount of Rs. 200-250/- per month which was not acceptable and agreeable to the plaintiff. The bank was ready to grant instalments, but not lower than the amount of Rs. 200-250/- per month which was not acceptable and agreeable to the plaintiff. Thereafter only the plaintiff resorted to the legal battle despite his undertaking in favour of the Bank and the teller system at Ex. 50. The plaintiff has dragged the Bank into frivolous and vexatious litigation and, therefore, in the opinion of this Court, this is a fit case to award exemplary cost against the plaintiff and in favour of the Bank. ( 25 ) HAVING regard to the aforesaid facts and circumstances, the present appeal is absolutely devoid of any force and merits and accordingly it is dismissed with costs. The apellant herein, original plaintiff, is directed to pay cost of Rs. 1500/- to the Bank. Appeal is dismissed. .