JUDGMENT : Dinesh Mehta, J. The present appeal has been filed under Section 96 of the Code of Civil Procedure, challenging the judgment and decree dated 17.02.1990 passed by the learned District Judge, Merta in Civil Original Suit No. 22/1989 in the matter of M/s Rikabchand Jai Kumar v. The United Western Bank Ltd. and Anr. 2. Shorn of unnecessary details the pertinent facts for the purpose of present appeal are that the appellant - plaintiff had filed a suit for recovery of a sum of Rs. 29,210/- interalia stating that they had got a draft dated 05.07.1986 of Rs. 20,000/- bearing No. 16581 prepared from the Bank of Rajasthan Ltd. Branch Kuchaman City, in the name of Firm - M/s Vilas Rai Vinod Kumar at Mumbai and sent the same to the said Firm, vide registered post dated 05.07.1986 vide Receipt No. 156 at its address in Andheri West, Mumbai. 3. It had been the case of the plaintiff that when it reconciled the accounts with M/s Vilas Rai Vinod Kumar in November 1986, it came to know that the amount of Rs. 20,000/- remitted by aforesaid draft has not been shown to have been received by the said creditor Firm at Mumbai. The plaintiff claimed to have enquired from the Post Office about the delivery of the draft but no material information was given by the Postal Authorities. 4. On further enquiries being made by the plaintiff - Firm, it transpired that some unknown person had opened an account in the name of Firm - M/s Vilas Rai Vinod Kumar with defendant No. 2, the Mumbai Branch of defendant Bank and encashed the demand draft No. 16581 meant for M/s Vilas Rai Vinod Kumar the Firm at Mumbai. 5. The plaintiff sued the defendants Nos. 1 and 2 namely United Western Bank Ltd. and its branch at Vijay Apartment, Andheri West Mumbai for the alleged negligence because of which someone was able to get an account opened in the name of M/s Vilas Rai Vinod Kumar. By way of the said suit appellant - plaintiff claimed the principle amount of Rs. 20,000/- and interest thereupon @ 18% per annum. On behalf of the plaintiff Mr. By way of the said suit appellant - plaintiff claimed the principle amount of Rs. 20,000/- and interest thereupon @ 18% per annum. On behalf of the plaintiff Mr. Niranjan Lal filed his affidavit deposing that he was an agent of Bank of Rajasthan Ltd. and he got a draft issued in the name of M/s Vilas Rai Vinod Kumar payable at Mumbai. Apart from him, Jaikumar a partner of the plaintiff - Firm filed his affidavit, in support of the suit while exhibiting various documents such as postal receipt dated 05.07.1986 of registry exhibit - 2, forwarding letter enclosed with the aforesaid draft exhibit - 3, letter of the recipient M/s Vilas Rai Vinod Kumar exhibit - 4 and the letter written to the Postal Department exhibit - 5 stating that he had got the draft prepared and sent the same through registered post and the same had reached the addressee. 6. Learned Trial Court after hearing the learned counsel for the plaintiff and considering the evidence rejected the suit, holding interalia that the plaintiff had failed to prove the negligence of the defendant - Bank. 7. 6. Learned Trial Court after hearing the learned counsel for the plaintiff and considering the evidence rejected the suit, holding interalia that the plaintiff had failed to prove the negligence of the defendant - Bank. 7. It would be out of place to reproduce the relevant findings recorded by the Court below, which reads as under :- ^^4 & bl mijksDr lk{; ds vykok oknh QeZ dh vksj ls dksbZ vU; lk{; is'k ugha dh xbZA eSaus fo}ku vf/koDrk oknh QeZ gh cgl lwuh rFkk i=koyh dk voyksdu fd;kA mijksDr lk{; ds v/;u ls ;g rks izekf.kr gksrk gS fd oknh QeZ us ,d M~kQV 20000 dk nh cSad vkWQ jktLFkku 'kk[kk dwpkeu'kgj ls foykl jk; fouksn dqekj ds uke dk fnuakd 05-07-1986 dks ysdj izfroknh ua0 2 dks Hkstk Fkk ijUrq ;g oknh QeZ fl) ugha dj ikbZ gS fd mDr jkf'k izfroknh ua0 2 dh usXyhtsUl ls dksbZ vKkr O;fDr izfroknh ua0 2 ls izkIr dj fy;s gks bl lEcU/k esa dksbZ lk{; Hkh oknh QeZ dh vkSj ls i=koyh ij is'k ugha dh gSA blds vykok oknh QeZ izfroknh ua0 2 ds usXyhtsUl d`R; dks lkfcr ugha dj ikbZ gSA oknh QeZ mDr jkf'k fdlh vKkr O;fDr }kjk QthZ rkSj ls izfroknh ua0 2 ds [kkrk [kksydj /kks[kk/kM+h ds d`R; dks Hkh lkfcr ugha dj ikbZ rks fQj og bl jkf'k ij C;kt ikus dh Hkh vf/kdkjh ugha gSA 5 & mijksDr leLr foospu ls esjk ;g er curk gS fd oknh QeZ izfroknhx.k ds fo:) viuk okn fl) djus esa vlQy jgh gS rFkk okn oknh [kkfjt fd;s tkus ;ksX; ik;k tkrk gSA 6 & vr,oa vkns'k gS fd okn oknh QeZ fo:) izfroknhx.k ckcr fnyk;s tkus 29210 Bksl lk{; ds vHkko esa [kkfjt fd;k tkrk gSA bl okn dk [kpkZ oknh viuk ogu djsxkA^^ 8. Mr. Manish Shishodia, learned counsel for the appellant vehemently submitted that the learned Court below has committed an error of law in arriving at a finding that there had been no negligence on the part of the defendant - Bank. He submitted that the defendant - Bank chose to appear before the Court below with a view to hide its negligence. He argued that the plaintiff had proved beyond doubt that the draft of Rs. He submitted that the defendant - Bank chose to appear before the Court below with a view to hide its negligence. He argued that the plaintiff had proved beyond doubt that the draft of Rs. 20,000/- was sent to its recipient M/s Vilas Rai Vinod Kumar, and the same had gotten encashed and credited in a bank account opened with defendant No. 2, without ascertaining the proper identity and credentials, for which the amount of Rs. 20,000/- could reach the hands for whom it was meant. Learned counsel for the appellant vehemently argued that admittedly neither any written statement was filed nor any cross-examination of the witness was done by the defendants, hence plaintiffs' version and the contents of the plaint ought to have been treated as proved, and on this count above the appeal deserves to the allowed. 9. Per contra, Mr. Rathi, learned counsel appearing for the defendants - respondents submitted that it is true that the matter had been proceeded ex-parte against the defendant and no written statement had been filed by them, yet the onus to prove its case lies upon the plaintiff. He submitted that even if the facts as narrated are taken to be admitted and the statement as given is accepted, the plaintiff has neither pleaded as to how the defendant Bank was negligent nor the plaintiff had proved the same even by the affidavits filed by it. Carefully reading the plaint and the affidavits, learned counsel for the respondent submitted that plaintiff has even indicated as to how the defendant - Bank had been negligent. 10. With these submissions, learned counsel for the respondents asserted that the appellant - plaintiff had no case for which the appeal at hand deserves to be dismissed. 11. Having heard rival counsels and upon perusal of the material available on record more particularly the affidavit filed on behalf of the plaintiff which remained unrebutted as no cross-examination was done, it transpires that the plaintiff, at the best has been able to prove that the demand draft of Rs. 20,000/- was prepared/purchased on 05.07.1986 and the same was sent to the addressee M/s. Vilas Rai Vinod Kumar. The plaintiff has failed to plead and prove that the draft in question had been received by the said recipient M/s. Vilas Rai Vinod Kumar. 20,000/- was prepared/purchased on 05.07.1986 and the same was sent to the addressee M/s. Vilas Rai Vinod Kumar. The plaintiff has failed to plead and prove that the draft in question had been received by the said recipient M/s. Vilas Rai Vinod Kumar. The affidavit filed on behalf of the plaintiff is completely silent about the acknowledgment of the registered post and so also there is no assertion or report from the Postal Authority about delivery or non delivery of the envelope to M/s. Vilas Rai Vinod Kumar at its Mumbai Office. The entire case projected by the plaintiff had been that someone else had got the account opened in the name of M/s Vilas Rai Vinod Kumar with defendant No. 2 and encashed the aforesaid demand draft. 12. In considered opinion of this Court, if at all the allegations of the plaintiff are believed to be true, the root of the dispute or cause of action had arisen to the said Firm - M/s Vilas Rai Vinod Kumar at Mumbai, in whose name some unscrupulous person had opened the bank account and devoured the money. 13. In the present case, the plaintiff had even impleaded said recipient M/s Vilas Rai Vinod Kumar and postal authorities as defendants who could at least admit or deny the factum of receipt of the draft aforesaid. In absence of the said recipient Firm, the allegation of the plaintiff that someone else opened the bank account fictitiously cannot be examined, much less proved. 14. In the given situation and the facts pleaded it could be fault or negligence of anyone of the defendants, postal authorities or even of the recipient Firm. But the plaintiff had confined its case around the Bank, without even impleading other possible errants. 15. The plaintiff has even stated that they had to pay another amount of Rs. 20,000/- to the said Firm - M/s Vilas Rai Vinod Kumar as the amount had been wrongly withdrawn by someone else, by opening the bank account with a fake identity. 16. On overall appraisal of the fact and record available, this Court is of the considered opinion that the learned Court below has committed no error in holding that the plaintiff had failed to prove the negligence of the defendant - Bank. 17. 16. On overall appraisal of the fact and record available, this Court is of the considered opinion that the learned Court below has committed no error in holding that the plaintiff had failed to prove the negligence of the defendant - Bank. 17. As an upshot of the discussion foregoing, this Court does not find any merit in the appellant's case and arguments advanced on its behalf. 18. The appeal thus fails.