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2008 DIGILAW 654 (MP)

Arvind Kumar Vyas v. State Bank of Indore

2008-05-06

N.K.MODY

body2008
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the judgment and decree dated 20-01-04, passed by Additional District Judge, Bhanpura (Camp-Garoth), District Mandsaur, in Civil Suit No. 16-B/03, whereby the suit filed by the respondent was decreed and the appellant was directed to pay a sum of Rs. 44,455/- alongwith interest @ 12.50% p.a., the present appeal has been filed. 2. Short facts of the case are that the respondent filed a suit against the appellant on 10-04-2000 for realization of a sum of Rs. 1,20,206/- alleging that the respondent is a Bank and appellant was posted as Branch Manager in the respondent bank, at Shyamgarh Branch. It was alleged that appellant performed his duties negligently during his tenure. It was alleged that due to the negligency on the part of appellant respondent suffered loss of Rs. 89,597/- as per income leakage order report dated 12-04-97. It was alleged that out of the aforesaid amount respondent is entitled to recover a sum of Rs. 78,260/- from the appellant personally. It was further alleged that on 24-04-96 appellant took a sum of Rs. 25,000/- from Mangilal and Sukhdev, son of Amarlal for depositing in their loan account. It was alleged that out of which only Rs. 20,000/- was deposited by the appellant and Rs. 5,000/- was not deposited. It was alleged that on 07-09-98 the borrower has moved an application with counter foil, which bears the signature of the appellant. It was alleged that respondent has deposited a sum of Rs. 9,146/- in the account of borrower, which includes the interest of Rs. 4,146/-. It was alleged that thus the respondent is entitled for a sum of Rs. 87,362/- alongwith interest, which comes to Rs. 1,20,206/-. In the suit it was prayed that a decree be passed against the appellant. 3. In the written statement filed by the appellant the plaint allegations were denied. It was denied that respondent suffer any loss on account of negligence on the part of the appellant. It was also denied that Rs. 5,000/- was not deposited by the appellant in the loan account of Mangilal and Sukhdev, after taking the same from the borrower. In the written statement appellant alleged that the copies of the documents alongwith relative vouchers be supplied to the appellant on the basis of which the amount has been claimed from the respondent. 5,000/- was not deposited by the appellant in the loan account of Mangilal and Sukhdev, after taking the same from the borrower. In the written statement appellant alleged that the copies of the documents alongwith relative vouchers be supplied to the appellant on the basis of which the amount has been claimed from the respondent. Preliminary objection was also raised to the effect that the suit itself filed by the respondent is not maintainable and is barred under Section 54 of the Banking Regulation Act 1959. It was prayed that the suit filed by the respondent be dismissed. 4. On the basis of pleadings of the parties learned Trial Court framed the issues, recorded the evidence and decree the suit, whereby the appellant was directed to pay a sum of Rs. 35,309/- towards loss on account of leakage of interest and Rs. 9146/-, totaling Rs. 44,345/- alongwith interest @ 12.5% w.e.f. 12-04-97 to 16-07-99, against which the present appeal has been filed. 5. Learned Counsel for the appellant submits that learned Court below committed error in decreeing the suit. It is submitted that the suit filed by the respondent is barred by Section 54 of Banking Regulation Act, 1949. It is submitted before filing the suit no notice, was given to the appellant. Learned Counsel further submits that undoubtedly the appellant is the employee of the respondent and no decree could have been passed against the appellant. 6. Learned Counsel for respondent submits that ample evidence is on record to show that because of the carelessness and negligence on the part of the appellant, respondent has suffered the losses and after due appreciation of evidence the suit was decreed by the learned Court below, which requires no interference. 7. From perusal of the record it is evident that to prove the case respondent has filed the documents Exhs. P-1 to P-17 and has examined Branch Manager Rameswar Solanki as P.W. 1, while appellant has examined himself to prove the documents Exh. D-1 to Exh. D-5. 8. Section 54 of the Banking Regulations Act 1940 which shall be referred hereinafter an Act reads as under: Section 54 protection of action taken under Act: 1. No suit or other legal proceedings shall lie against the Central Government, the Reserve Bank or any officer for anything which is in good faith done or intended to be done in pursuance of this Act. 2. No suit or other legal proceedings shall lie against the Central Government, the Reserve Bank or any officer for anything which is in good faith done or intended to be done in pursuance of this Act. 2. Save as otherwise expressly provided by or under this Act, no suit or other legal proceeding shall lie against the Central Government, the Reserve Bank or any officer for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act. 9. From perusal of the record it is evident that inspite of taking preliminary objections in the written statement no issue was framed by the appellant in this regard. Appellant also failed in drawing the attention of the learned Court below to frame the additional issues regarding the maintainability of the suit. However from perusal of Section 54 it is evident that suit cannot be filed for damages for anything which is done in good faith by an officer. 10. In the matter of Punjab State Civil Supplies Corporation Ltd. v. Sikander Singh reported in (2006)IILLJ14SC , where the employer who are respondent Nos. 1 and 2 were working as Inspector and Field Officer/Supervisor under the appellant corporation respectively pursuant whereto shortage of 4513 bags of wheat belonging to the appellant Corporation were said to have been discovered and it was alleged that respondent No. 1 was the actual holder of the stock, while respondent No. 2 was Senior Superintendent was negligent in making proper supervision of the godowns, it was held by Hon'ble Apex Court that civil suit by the employer against an employee for recovery of money due to loss of goods of employer will be maintainable only if delinquent employee is found to have misappropriate goods and it would not be enough that such delinquent employee is negligent in performing his duties, which negligence led to the loss of goods. 11. Learned Counsel for appellant has stated that in the departmental proceedings were initiated against the appellant and appellant has lost his job. In the statement of Rameswar Singh (P.W. 1) the only thing which is stated that appellant has not discharge his duties with full responsibilities. Thus, the respondent has failed to prove that the respondent suffered losses because of omission on the part of the appellant in bad faith. 12. In the statement of Rameswar Singh (P.W. 1) the only thing which is stated that appellant has not discharge his duties with full responsibilities. Thus, the respondent has failed to prove that the respondent suffered losses because of omission on the part of the appellant in bad faith. 12. In the facts and circumstances of the case and keeping in view the law laid down by the Hon'ble Apex Court the suit itself was not maintainable. However, on merits also no mala fide has been proved by the respondent on the part of appellant, therefore, the learned Court below committed error in decreeing the suit against the appellant. In view of this, the appeal filed by the appellant stands allowed, judgment and decree passed by the learned Trial Court stands set aside and suit filed by the respondent stands dismissed. No order as to costs.