K. RAMAMOORTHY ( 1 ) THE plaintiff bank has filed this suit for recovery of Rs. 3,88,507. 55 against the defendant No. I firm and three partners defendants 2 to 4. ( 2 ) BRIEFLY stated the case of the plaintiff is this. The defendants 2 to 4 being the partners or defendant No. 1 approached the plaintiff bank on 14. 1. 84 and opened an account and requested overdraft facility in the current account and adhoc/casual basis. The overdraft facility was allowed Subsequently, on 28. 8. 85 the defendants confirmed the debit balance in their account at Rs. 4. 56. 755 80. In December 1985 the defendants 2 to 4 requested for a temporary overdraft facility to the extent of Rs. 4 lakhs. This request was also acceded to by the plaintiff. On 23rd of December 1985 they executed the following documents :- 1. Demand Promissory Note. 2. Form No 106 3. Form No 291 4. Form No 216 5. Form No, 126 6. Form No. 159 After giving credits to the amounts paid by the defendants, the plaintiff bank issued notice calling upon them to pay the balance due. The balance as on February 16, 1987 was Rs. 3,88,507. 55. The plaintiff claims interest at 17. 5% per annum with quarterly rests. According to plaintiff, the defendants undertook to pay an additional interest of 2. 5% in case of delay or default in payment. In the written statement, a very curious point is taken by the defendant stating that they did not ask for any overdraft facility from the bank and no money was payable by the defendants to the plaintiff. They also state that some moneys were paid to Mr. Anand, an officer of the bank, who was very cordial with the defendants and payments made by the defendants to Mr. Anand had not been deposited by him into the bank and he had cheated them. In the preliminary objections in paragraph 6, it is stated as follows "that the averments made in the plaint are false to the know ledge of the plaintiff. The officers of the plaintiff bank have colluded inter-se with a mala fide intention to cause wrongful loss to the defendants and to make. wrongful gain for which the detailed submissions have been made hereinafter. The officers of the plaintiff bank have colluded inter-se with a mala fide intention to cause wrongful loss to the defendants and to make. wrongful gain for which the detailed submissions have been made hereinafter. The suit is, therefore, liable to be dismissed and the defendants be given compensatory cost u/s 35b of the Code of Civil Procedure. "in dealing with the merits in paragraph 2 of the written statement defendants had set out, according to them what happened with Mr. Anand, the officer of the bank and how they are not liable to pay any amount. Paragraph 2 is as follows :- "para 2 of the plaint is wrong and denied. It is not admitted that the defendant Nos. 2 to 4. acting as partners, approached the plaintiff/bank at its branch office at New Sabzimandi on 14th January 1984 and opened a Current Account, as alleged. In fact, the then Manager of the Bank, Mr. Anand, in the company of another bank official, came at the then shop premises of the defendants and after establishing cordial relations and assuring good services, he took a sum of Rs. 1,000. 00 from S. Narindar Singh and gave him a card to be signed by the other two defendants and left. He told S. Narindar Singh that the card will be collected from their shop after about 10 days time because it had to be sent to Srinagar for obtaining the signatures of S. Mahinder Singh. Accordingly the bankers collected the card from the then shop premises of the defendants in New Sabzimandi, Azadpur, Delhi and delivered to them one cheque book. Subsequently, a personal intimacy was developed with the Manager of the Bank after he visited the house of S. Manjit Singh Anand at Gujranwala Town and had invited defendant No. 3 and his family at his own residence. These family visits of both the parties in each other s house were made very frequently and soon developed into intimacy on which each started reposing great interest on the other, As a result of this, almost all the transactions were made at the residences and these defendants never visited the bank. The cheques received by the defendants from the other parties were delivered to Mr. Anand or his family members in a cordial atmosphere and he used to deposit the same in the bank. The cheques received by the defendants from the other parties were delivered to Mr. Anand or his family members in a cordial atmosphere and he used to deposit the same in the bank. Similarly if the cheques were issued in excess of the amount available in the bank the said Manager would call for the money and it was given to him in advance as a precautionary measure also to ensure that none of the cheques issued by the defendants is dishonoured. In this manner the defendants had absolutely no occasion to visit the Branch Office of the Bank. It is complete concoction on the part of the plaintiff to allege that the defendants requested for the grant of overdraft facility on ad-hoc/casual basis. There was no occasion to make any assurances, as mentioned in para No. 2 of the plaint. These defendants never received any message or communication about the grant of any such overdraft facility. Sometime after opening of the said account, Mr. Anand along w ith his family members visited Kashmir and he stayed in the house of. defendant No. 1 at Srinagar because of the cordial family relations which had developed earlier. It is during this stay that he got some blank forms signed from defendant No. 4 on false representations. All these documents were signed blank and in good faith and on the expectations that they would be required by the Bank Manager in the course of business of defendants transaction with the bank. On reaching Delhi he played the same modus operand! in obtaining the signatures of S. Manjit Singh. defendant No. 3. The Bank never supplied to the defendants any statement of account although he was asked to do so at number of times; though casually, during the meetings of the families of the parties outside the Bank in their house premises or hotels. The defendants never became serious about the statement of accounts because none of the cheques issued by them were ever dishonoured: therefore, they always remained under the impression that the money given by them to the Branch Manager was invariably, deposited in their account and against that the cheques issued were honoured. It was to the utter astonishment and disappointment of these defendants when all of a sudden in late 1986 it was revealed that Mr. Anand has committed serious irregularities in the maintenance of his Branch and. It was to the utter astonishment and disappointment of these defendants when all of a sudden in late 1986 it was revealed that Mr. Anand has committed serious irregularities in the maintenance of his Branch and. therefore, his services were either suspended or only transferred and in his place a new Manager was appointed. The Bank soon thereafter made a hue and cry and made wild propaganda in the Sabzimandi area that these defendants owed huge amount to the Bank. In fact. no amount was ever due to the bankers but this propaganda of the bankers resulted into great crisis in the business of the defendants. The traders who had to make payments to the defendants, stopped making payment all of a sudden and the traders who had to take money from the defendants, started pressurising them in all respects: even by the use of third degree methods; to recover the amount from them This wrongful; created exposure: ruined their business in the market completely and the defendants had to abandon the same and transferred their premises also and left the market for ever. The bankers are, therefore, responsible for ruining the life career of defendant Nos. 3 and 4 and the future transactions of defendant Nos 1 and 2. without any faults of any of these defendants. The defendants had to sell out whatever they had to pay of to their creditors because they could not afford to cheat and defraud anyone because of their ancestral family prestige in the trade. This payment would have made little effect if the bankers had allowed them to continue with the circle of business transaction by telling the truth and not manipulating the falsehood. It is apparent that the money paid by the defendants to the said Branch Manager, Mr. Anand, was utilized by him for his own benefits and he created a overdraft facility on the papers for the clearance of the cheques of the defendants. It is re-asserted that the defendants never asked for any overdraft facilities and they never signed any documents for this purpose, consciously they never availed of any facilities and they w ere never informed about the grant of any such facilities by the bankers. It is re-asserted that the defendants never asked for any overdraft facilities and they never signed any documents for this purpose, consciously they never availed of any facilities and they w ere never informed about the grant of any such facilities by the bankers. This is all a manipulation and a big fraud which the officers of the Bank played on the defendants arid the defendants have reserved their right to proceed against them in the appropriate Court of law in due course of time as and when they are so advised. "in paragraph 5 the defendants denied the execution of the documents which I have noticed above. In paragraph 6 it is stated in the following terms :- "it is not admitted that any such facility of overdraft was ever asked for or availed of. There is no question of these defendants undertaking to pay the amount due because no amount could have ever become due. It is denied that the defendants have failed to keep-up their commitments. "in paragraph 12 an interesting stand is taken, which is as follows :- "para 12 of the plaint is wrong and denied. The suit is without cause of action. No amount was taken in advance and no facility w as availed of. No loan documents were ever signed consciously or delivered to the bank. No amount was ever due and no such demand was to be met. It is denied that any documents were executed in Delhi in December 1985. It is denied that the suit is within the prescribed period of limitation. " ( 3 ) THE plaintiff filed a replication repudiating the claim of the defendants. ( 4 ) THE plaintiff examined P. W. 1 to P. W. 3. Sh. B. L. Anand, officer of the bank was examined as P. W. 1. He has spoken to the transactions between the plaintiff and the defendants. Through him the follow ing documents were exhibited. Ex. P. I the current account opening form, Ex. P. 2 the pronote dated 23. 12. 85. Ex. P. 3 Form No 126 wherein the defendants agreed that the facility given would continue during the pleasure of the bank. Ex. P. 4 form No. 216 wherein defendants had confirmed that the defendants were non agriculturist and expressly waived all rights and advantages available to the agriculturists. Ex. P. 2 the pronote dated 23. 12. 85. Ex. P. 3 Form No 126 wherein the defendants agreed that the facility given would continue during the pleasure of the bank. Ex. P. 4 form No. 216 wherein defendants had confirmed that the defendants were non agriculturist and expressly waived all rights and advantages available to the agriculturists. Ex. P. 5 form No. 291 wherein the defendants agreed to pay additional interest of 2. 5% per annum in case of default or irregularity in paying the amount due, Ex. P. 6 from No. 106 wherein the defendants had waived the right of presentment of relative pronote and other negotiable instruments. Ex. P. 7 form No 159 is a letter of continuity in the following terms :- "letter of continuity dated 23. 12. 85 agreeing that the Promissory Note is to be a security with the Bank for the repayment of the ultimate balance sum remaining unpaid in the said account and the defendant would remain liable on the said Promissory Note not withstanding the fact that by payment made into the said account from time to time, the overdraft may from time to time be reduced/ extinguished or even that the balance ofthe said account may be at credit. " ( 5 ) THE theory of signing in the blank papers is only a myth which can not at all be accepted. ( 6 ) P W. 2 Mr. Jagjit Singh Chaudhry, Manager ofthe Bank was examined. He is the person who had signed the plaint and he has proved the power of attorney. The only question put in the cross examination is "the two witnesses to the execution of this power of attorney are Mr. Harjit Singh and Mr D S. Lamba Advocate. Of the two, I know that Mr. Harjit Singh is still alive and available. He is working with the Punjab and Sind Bank. " I need not say anything on this because the cross examination was made only to make an attempt to project some case. ( 7 ) P. W. 3 Mr. Harjit Singh, who had brought the original power of attorney and the copies of power of attorneys are exhibited as Ex. Public Witness. 3/1 and Public Witness3/2. The resolutions by the bank authorising o execute the power of attorneys are exhibited as Ex. Public Witness3/3 and Public Witness3/4. ( 7 ) P. W. 3 Mr. Harjit Singh, who had brought the original power of attorney and the copies of power of attorneys are exhibited as Ex. Public Witness. 3/1 and Public Witness3/2. The resolutions by the bank authorising o execute the power of attorneys are exhibited as Ex. Public Witness3/3 and Public Witness3/4. ( 8 ) THROUGH P. W. 3 the notice issued by the bank to the defendants through counsel is exhibited as Ex. Public Witness3/5. P. W. 3/5 was exhibited on 17. 1. 96. The matter was in the list for a long time. The defendants counsel did not appear. ( 9 ) I proceeded to hear arguments by the learned counsel for the plaintiff treating the defendants to be present in the light ofthe provisions of Order 17 Rule 2 CPC. Order 17 Rule 2 CPC read as follows "r. 2. Procedure if parties fail to appear on day fixed.- Where, on any day to which the hearing ofthe suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. " ( 10 ) IN the light ofthe documents filed by the plaintiff which cannot at all be challenged by the defendants and as 1 pointed earlier the defendants have taken only a bogy of a plea of nonest factum and also that they signed on blank papers. I do not find any difficulty in accepting the case of the plaintiff when the plaintiff bank has produced relevant materials and also the statement of accounts and I decree the suit for a sum of Rs. 3,88,507. 55 with costs and with future simple interest at 20% per annum from the date of the suit i. e. 18. 2. 87 till the date of payment.