# P.N.B v. M/S Allen & Alvan Pvt. Ltd. & Ors

- **Citation:** (2024) 9 ILRA 1314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-30
- **Case number:** Second Appeal No. 528 of 2010
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-n-b-v-m-s-allen-alvan-pvt-ltd-ors-52543
- **Pages:** 21

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Sections 34 & 100 - Order 2- Rule 2- Order
2 - Rule 3 - Negotiable Instruments Act,
1881- Sections 7, 82, 85, 85(2) & 131 -
Evidence Act,1872 - Sections 45 & 73 -
Indian Penal Code, 1860 - Sections 420,
467, 468 & 471 - Two consolidated appeals -
arising from judgments in two civil suits - filed
by plaintiff-respondents - trial court dismissed
both suits, citing insufficient evidence to
establish forgery, particularly the lack of expert
testimony on signature comparison - but the
first appellate court reversed the decision,
finding the bank negligent and awarding a
money decree to the plaintiff - substantial
question of law was framed regarding the lower
appellate court's finding and the applicability of
procedural rules - court finds that, the suits
involved
allegations
of
wrongful
cheque
clearance due to forged signatures by a
company employee, in conspiracy with bank
officials - and the appellate court's judgment
was based on comparing disputed signatures
without expert evidence, which was later
contested - and separate causes of action
existed for each cheque, thus negating the bar
of Order 2 Rule 2 CPC - held, - the first
appellate court erred in its findings, and U.P.held
the trial court's dismissal of both suits, ruling
that the bank had not acted negligently and that
the second suit was indeed barred by Order 2
Rule 2 CPC - consequently, both appeals are
succeed
and
are,
accordingly,
allowed
-
impugned consolidated judgment and decree
drawn on that basis in both appeals is set-aside
and the trial court's judgement dismissing both
suits is U.P.held - any amount lying deposited,
either pursuant to the interim order or
otherwise, is directed to be refunded to and
credited in the concerned account of the
appellant bank along with accrued interest
U.P.to date and the executing court shall
facilitate such refund forthwith. (Para - 39, 40,
41, 42)

Second Appeal Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,996 of 64,659. This is a partial read: ask again with offset=39996 for what follows._

1314 INDIAN LAW REPORTS ALLAHABAD SERIES
substantial question of law. Where
there is a clear and settled
enunciation on a question of law,
by this Court or by the High Court
concerned, it cannot be said that
the case involves a substantial
question of law."

35. In view of above and
considering
the
overall
facts
and
circumstances of the case, this Court is of
the view that trial court as well as the first
appellate court have recorded finding of
facts on the basis of the pleadings and
evidence, which does not suffer from any
illegality,error or perversity, which may
require any interference by this Court. This
second appeal has been filed on misconceived and baseless grounds, which is
liable to be dismissed.

36.

The
second
appeal
is,
accordingly, dismissed. No order as to
costs. .
----------
(2024) 9 ILRA 1314
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 528 of 2010
With
Second Appeal No. 527 of 2010

P.N.B. ...Appellant
Versus
M/S Allen & Alvan Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Appellant:
Ashok Bhatnagar

Counsel for the Respondents:
Ishir Sripat
Civil Law - Civil Procedure Code, 1908 -
Sections 34 & 100 - Order 2- Rule 2- Order
2 - Rule 3 - Negotiable Instruments Act,
1881- Sections 7, 82, 85, 85(2) & 131 -
Evidence Act,1872 - Sections 45 & 73 -
Indian Penal Code, 1860 - Sections 420,
467, 468 & 471 - Two consolidated appeals -
arising from judgments in two civil suits - filed
by plaintiff-respondents - trial court dismissed
both suits, citing insufficient evidence to
establish forgery, particularly the lack of expert
testimony on signature comparison - but the
first appellate court reversed the decision,
finding the bank negligent and awarding a
money decree to the plaintiff - substantial
question of law was framed regarding the lower
appellate court's finding and the applicability of
procedural rules - court finds that, the suits
involved
allegations
of
wrongful
cheque
clearance due to forged signatures by a
company employee, in conspiracy with bank
officials - and the appellate court's judgment
was based on comparing disputed signatures
without expert evidence, which was later
contested - and separate causes of action
existed for each cheque, thus negating the bar
of Order 2 Rule 2 CPC - held, - the first
appellate court erred in its findings, and U.P.held
the trial court's dismissal of both suits, ruling
that the bank had not acted negligently and that
the second suit was indeed barred by Order 2
Rule 2 CPC - consequently, both appeals are
succeed
and
are,
accordingly,
allowed
-
impugned consolidated judgment and decree
drawn on that basis in both appeals is set-aside
and the trial court's judgement dismissing both
suits is U.P.held - any amount lying deposited,
either pursuant to the interim order or
otherwise, is directed to be refunded to and
credited in the concerned account of the
appellant bank along with accrued interest
U.P.to date and the executing court shall
facilitate such refund forthwith. (Para - 39, 40,
41, 42)

Second Appeal Allowed. (E-11)

List of Cases cited:

1. Zila Parishad Vs Shanti Devi, AIR 1965 All 590,

2. State (Delhi Administration) Vs Pali Ram: AIR
1979 SC 14,
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1315
3. The Haryana Co-operative Sugar Mills Ltd.,
Rohtak Vs Joint Hindu Family Firm Styled as
GU.P.ta Drum SU.P.ply Company: AIR 1976 P&H
117,

4. Murari Lal Vs St. of M.P.: AIR 1980 SC 531,

5. Shriniwas Pansari Vs Hari Prasad Mehra & ors.:
AIR 1983 Pat 321,

6. Canara Bank Vs Canara Sales Corporation & ors.:
AIR 1987 SC 1603,

7. Babulal Agarwalla Vs St. of Bikaner and Jaipur:
AIR 1989 Cal 92,

8. Syndicate Bank Vs West Bengal Cements Lts. &
ors.: AIR 1989 Delhi 107,

9. Mahabir Prasad Bubna Vs United Bank of India:
AIR 1992 Cal 270,

10. Mathew Jacob Vs Salestine Jacob & ors.: AIR
1998 Delhi 390,

11. Jyoti H. Mehta & ors.Vs Kishore J. Janani &
ors.: MANU/MH/0133/2019,

12.
Mrugendra
Indravadan
Mehta
&
ors.Vs
Ahemdabad
Municipal
Corporation:
MANU/SC/0420/2024,

13. O. Bharathan Vs K. Sudhakaran & anr., AIR
1996 SU.P.reme Court 1140,

14. Shyam Sundar Chowkhani @ Chandan & ors.Vs
Kajal Kanti Biswas & ors., AIR 1999 Gauhati 101,

15. St. of Mah. Vs Sukhdeo Singh & anr., AIR 1992
SC 2100,

16. Laxmi Bai Vs A. Chandravati, AIR 1995 Orissa
131,

17. Mrs. Rosali Vs M/s Syndicate Bank, Luz,
Mylapore Madras-4, 2018 (1) CTC 441,

18. The Karnataka High Court, in Ashit Roy Vs
Syndicate Bank, 2000 (101) CC 178,

19. S.B.I. Vs Kerala St. Co-operative Marketing
Federation & ors., O.S. No. 252 of 1988 decided on
05.10.1995,
20. S.B.I. Vs Kerala St. Co-operative Marketing
Federation & ors., O.S. No. 252 of 1988 decided on
05.10.1995.

(Delivered by Hon'ble Kshitij Shailendra, J.)

THE TWO APPEALS

1. These two second appeals arise
out of consolidated judgment passed by the
trial court and the first appellate court in
the following proceedings:-

(i) Original Suit No.143 of
1991 (M/s Allen and Alvan Private Ltd
Vs. Punjab National Bank and two
others) giving rise to Civil Appeal
No.147 of 2002 (M/s Allen and Alvan
Private Ltd Vs. Punjab National Bank
and two others); and
(ii) Original Suit No.176 of
1991 (M/s Allen and Alvan Private Ltd
Vs. Punjab National Bank and two
others) giving rise to Civil Appeal
No.146 of 2002 (M/s Allen and Alvan
Private Ltd Vs. Punjab National Bank
and two others).

RESULT OF TRIAL
PROCEEDINGS AND THE
DECREE DRAWN

2. The trial court dismissed both the
civil suits by a consolidated judgment dated
28.08.2002, however, two civil appeals were
allowed by the first appellate court by
consolidated judgment dated 07.08.2009. The
decree impugned in these two appeals is a
money decree drawn in favour of the plaintiffrespondent against the defendant-appellant bank.

PLAINT OF THE FIRST SUIT

3. Original Suit No.143 of 1991
(hereinafter referred to as the 'first suit')
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
was filed claiming a decree for a sum of
Rs.41,986.25 along with 24% interest per
annum stating that the plaintiff, being a
private company through Devinder Jit
Singh Vadara (hereinafter referred to as the
'Managing Director/M.D.') was having
current
account
No.4869
with
the
defendant-bank and a cheque bearing No.
PYC 883200 dated 05.02.1988 covering a
sum of Rs.24,410.60 had been wrongly
cleared by the bank. Signatures of the
Managing Director on the cheque were
stated to be forged with a statement that an
employee
of
the
company,
namely,
Indrapal, in conspiracy with the bank
officials,
was
instrumental
in
such
clearance. A first information report was
lodged by the Managing Director of the
Company against Indrapal in July, 1988,
later on, matter was transferred to the
Crime Branch, Meerut. Negligence of the
bank in clearing the cheque without
comparing the signatures of the drawer was
pleaded and the suit was instituted based
upon a notice dated 19.08.1990 sent by
registered post with a further statement that
since limitation concerning the aforesaid
cheque was going to expire, the suit was
filed. In paragraph no. 4 of the plaint,
fraudulent encashment of six more cheques
was pleaded with a statement that the
plaintiff reserved its rights to subsequently
claim the amount of the said cheques
together with interest.

PARTIES, INITIAL AND
SUBSEQUENTLY IMPLEADED AND
THE SECOND SUIT

4. The first suit was filed initially
only against the bank. Later on, the
aforesaid employee of the bank, namely,
Indrapal, and the payee of the cheque,
namely 'Investment Corporation' were
impleaded as defendants no.2 and 3
sometime in the year 1995. In the
meantime, another suit being Original Suit
No.176 of 1991 (hereinafter referred to as
the 'second suit') was instituted by the
plaintiff-company, that too, initially only
against the bank and, later on, the employee
Indrapal and two payees, namely, 'Ayodhya
Investment Syndicate' and 'Investment
Corporation' were respectively impleaded
as defendants no.2, 3 and 4 in the year
1995. The second suit was in respect of
following six cheques:

S
r.
N
o.
Che
que
No.
Dat
e
Amou
nt
(Rs.)
Payee
's
Name
Endor
semen
t
in
favour
of
1
QE
M
878
600
17.0
2.88
50,00
0.00
SelfWithd
rawal
by
Indra
pal

2
QE
M
878
578
25.0
2.88
40,00
0.00
SelfWithd
rawal
by
Indra
pal

3
PY
C
883
400
27.0
2.88
23,64
1.00
M/s
KP
Box
Make
rs
M/s
Ayodh
ya
Invest
ment
Syndic
ate
4. PY
C
883
399
01.0
3.88
22,75
1.00
Mune
sh
Kuma
r
M/s
Ayodh
ya
Invest
ment
Syndic
ate
5. PY
13.0
26,95
Asho
M/s
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1317
C
883
699
6.88
3.00
k
Kuma
r
Ayodh
ya
Invest
ment
Syndic
ate
6. PY
C
883
700
03.0
6.88
26,58
1.00
K.P.
Box
Make
rs
Invest
ment
Corpo
ration
 Total
Amount
2,14,3
36.60

THE DEFENCE

5. The bank contested the suits by
filing written statement denying wrongful
encashment
of
cheques
stating
that
signatures of the Managing Director
thereon were not forged and that the
payment was made after comparing the
signatures of the Managing Director with
his specimen signatures. Plea of nonimpleadment of the payees (before their
impleadment), was also taken with various
other statements defending action of the
bank as regards encashment of cheques in
normal course of business transactions. The
employee Indrapal and the payees also filed
their separate written statements in both the
suits.
Whereas
Indrapal
denied
any
conspiracy or fraud and stated that cheques
were rightly encashed and also took a plea
that he had demanded salary, bonus and
others perks from the company but his
request was rejected against which he
moved some application before the Labour
Commissioner and that he was also
removed from service in December, 1987
and, therefore, institution of suit was a
result of malice of the employer. The
payees took a defence that cheques were
rightly presented and credited into their
accounts. Bar of Order 2 Rule 2 CPC as
regards second suit was also pleaded
praying for dismissal of both the suits as
barred by the provisions of Limitation Act,
CPC as well as Sections 82 and 85 of the
Negotiable Instruments Act.

6. Both the suits were consolidated
by the trial court by order dated 11.11.1992
and the Original Suit No.143 of 1991 (first
suit) was made the leading case.

THE TRIAL COURT'S
JUDGMENT

7. The trial court, by judgment and
decree dated 28.08.2002, dismissed both
the suits. It held the second suit as barred
by Order 2 Rule 2 CPC on the ground that
on the date of filing first suit, cause of
action to institute the second suit had
already arisen, particularly in view of
notice dated 19.08.1990 (Exhibit-1), paper
No.22-C and observed that non-claiming
relief in the first suit as regards six cheques
forming subject matter of second suit
would be fatal to plaintiff's case. As
regards negligence of the bank officials
towards clearing cheques, the trial court
observed that the plaintiff had failed to lead
sufficient evidence to establish forgery in
signatures of the Managing Director,
particularly when no expert was ever called
for. It also observed that the plaintiff was a
company of high repute involved in
everyday transactions of lacs of rupees
where 20-25 cheques were issued on daily
basis.

THE FIRST APPELLATE
COURT'S JUDGMENT

8. Two civil appeals arising out of
consolidated dismissal of two suits have
been allowed by the first appellate court by
the impugned judgment dated 07.08.2009
holding the bank as guilty of negligence.
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
The first appellate court found the trial
court having erred in not comparing the
disputed signatures of the Managing
Director with those available on record, i.e.
the plaint and other documents and
observed that even in absence of expert
evidence under Section 45 of the Evidence
Act, the court had ample power conferred
under Section 73 of the Act to compare
signatures
with
any
other
signatures
available on record; that there were
separate and distinct dates of cause of
action in relation to filing of two separate
civil suits and, therefore, bar of Order 2
Rule 2 CPC did not stand attracted; that
PW-1 had succeeded to establish forgery in
the cheques; that specimen signature of the
Managing Director were available on paper
No.29-C/1 (Exhibit 8), an introduction
letter issued by PNB to its another branch
at Railway Road, Aligarh; that specimen
signatures available in the bank were not
produced by the bank and that the
statement of DW-1 Amar Deo, being
secondary
evidence
in
absence
of
production of the officials working at the
relevant point of time of clearance of
cheques, was not admissible. Though the
appellate court did not record a finding that
the defendants acted in collusion with each
other or that there was some conspiracy in
between them, it found the bank negligent
in discharging its duties and drew the
money decree. A significant feature of
the first appellate court's judgment is
that original file concerning criminal
case lodged by the company against
Indrapal, i.e. Sessions Trial No.1908 of
1994, under Sections, 420, 467, 468, 471
IPC (State Vs. Indrapal), P.S. Banna
Devi, District Aligarh was summoned
and it was observed that the Managing
Director of the plaintiff-company had,
after perusing original cheques available
on record of the criminal case, proved
his signatures on the cheques to be
forged.

ADMISSION ORDER IN THE
INSTANT APPEAL

9. The instant second appeal was
admitted by a co-ordinate bench of this
Court
by
order
dated
08.02.2023,
framing
following
four
substantial
questions of law:-

"1. Whether the lower
appellate court has erred in law in
accepting the case of plaintiff by
comparing the signatures on the
cheques with the signature of the
plaintiff on the plaint, his testimony
and Exhibit-8 as well as on different
correspondences between the bank
and
the
plaintiff
regarding
transactions which were the subject
matter of the original suits?
2. Whether the findings of
the lower appellate court regarding
negligence of the bank in encashing
the cheques and its liability to return
the amount involved in the cheques
is
supported
by
evidence
and
findings on record and whether, in
any case, the appellant-bank was
liable to refund the amount involved
in the cheques?
3. Whether original suit
no.143 of 1991was barred by Order 2
Rule 2 C.P.C?
4.
Whether
the
interest
awarded by the lower appellate court
to the plaintiff is in accordance with
Section 34 of Code of Civil
Procedure, 1908?"

10. The Court may observe an
inadvertent error in question No.3 as
regards number of the original suit. As the
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1319
question relates to bar under Order 2 Rule 2
CPC, it was raised and decided by two
courts differently in relation to Original
Suit No.176 of 1991 (second suit) and not
in respect of Original Suit No.143 of 1991
(first suit). Hence, third question would be
understood and decided qua bar associated
with the "second suit" and not the "first
suit". The said inadvertent error, in the
opinion of the Court, being borne out from
the record, need not be corrected at this
stage of writing final judgment. It is also
apparent
that
the
appellant-bank,
in
pursuance of the interim order dated
06.09.2022 passed in these proceedings,
has deposited the decretal amount and
although certain dispute has been raised by
the decree holder by filing an application to
the effect that there is a shortfall in making
deposit as per the interim order, since this
Court is finally deciding both the appeals
on consent of both sides, the question of
compliance/non-compliance/partial
compliance of the interim order would be
no significance at this stage and, therefore,
the Court is not entering into the said
controversy.

LEARNED COUNSEL HEARD

11. I have heard Sri Ashok
Bhatnagar,
learned
counsel
for
the
appellant and Sri Rahul Sripat, learned
Senior Counsel, assisted by Sri Ishir Sripat,
learned counsel for the respondents.

APPELLANTS' ARGUMENTS

12. Sri Bhatnagar vehemently
argues that the plaintiff had raised dispute
regarding seven cheques in toto. The first
suit, admittedly, was filed on the basis of
notice dated 19.08.1990, paper No.22-C1/1 on record, which contained details of
all the seven cheques and asking the
Chairman, Zonal Manager and the Chief
Manager of the Bank to credit total amount
of Rs.2,14,336/- in the account of the
plaintiff. He submits that the plaintiff chose
to file first suit based upon cause of action
arising out of clearance of first cheque No.
PYC
883200
covering
a
sum
of
Rs.24,410.60 and there being no leave
obtained from the civil court before
institution of the second suit, Original Suit
No.176 of 1991 was barred by provisions
of Order 2 Rule 2 CPC. He further submits
that though the appellate court summoned
the record of criminal trial containing
original cheques but, instead of calling for
an expert evidence, if required to examine
the plea of forgery, it, in itself, acted as an
expert and findings recorded in paragraph
no.26 of the appellate court's judgment are
wholly un-called for. Contention is that
though Section 73 of the Evidence Act has
no application in the facts of the present
case as it applies in case of admitted
signatures in order to ascertain whether a
signature, writing or seal is that of the
person by whom it purports to have been
written or made to the satisfaction of the
Court, since the Managing Director of the
plaintiff-company had denied his signatures
on the cheques, nothing was there as
"admitted signatures" on record but it was a
case where the signatures were "not
admitted"
by
the
plaintiff. Alternate
submission of Sri Bhatnagar is that even if
Section 73 could be invoked by the first
appellate court, it was not a case where
analysis of signatures of the Managing
Director could be done in the manner it has
been done in the judgment and the findings
on trimmer, pen-lift, pen-pass, pen-hall,
sharpness of words, speed and alienation
etc have been recorded as if the Cout was a
qualified handwriting or signature expert.
As regards evidence from the side of the
bank, it is submitted that officials posted at
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of clearance of the disputed
cheques (Exhibits No.12 to 18) had already
left services of the bank after availing
Voluntary Retirement Scheme (VRS) due
to which Amar Deo, a current employee of
the bank, was produced as the defence
witness. Further submission is that as far as
alleged
non-production
of
specimen
signatures, there was already on record
letter dated 10.09.1988 (Exhibit-8) by
which the bank had introduced the
Managing
Director
of
the
plaintiffcompany to the other branch of the bank.
He further submits that once both the courts
below have not recorded finding that the
bank officials had acted in conspiracy with
other defendants, holding the bank as liable
to pay the amount covered by the cheques
which sum was not retained by the bank
but was paid to the payees, i.e. Investment
Corporation and M/s Ayodhya Investment
Syndicate, the decree drawn against the
bank is wholly unsustainable.

13. Sri Bhatnagar further submits
that the plea raised by the plaintiffrespondent that some of the defendants
were different which required leading of
different evidence and for this reason two
separate suits were filed, is fallacious, farfetched and not tenable in the eyes of law
inasmuch as no relief was ever claimed
against other defendants. Moreover, a
perusal of both the plaints would reveal that
the defendants no. 1, 2 and 3 in the first suit
are common and only the defendant no. 3
in the second suit i.e. M/s Ayodhya
Investment Syndicate was not made party
in the first suit as it was not the payee of
the first cheque. However, M/s Investment
Corporation is defendant in both the suits.
Explaining the cause of action, it is urged
that a plaintiff cannot create a cause of
action solely by his own effort. It must be
created for him by some act of the
defendant that must be a part of the cause
of action. In the instant case, the cause of
action in relation to all seven cheques arose
only on 19.10.1990 when the defendantbank refused to pay the plaintiff the amount
claimed
in
the
legal
notice
dated
19.08.1990. Therefore, the first suit filed
claiming the amount mentioned in the first
cheque would infer that the plaintiff failed
to include the whole of the claim which it
was entitled to make in respect to the cause
of action, thereby relinquishing its claim
for the remaining 6 cheques, hence the
second suit was barred under Order 2 Rule
2 CPC. Reliance has been placed upon
paragraph no.11 of the Full Bench decision
of this Court in Zila Parishad Vs. Shanti
Devi, AIR 1965 All 590. As regards
incompetence of a court to act as a
handwriting or signatures expert in itself,
Sri Bhatnagar placed reliance upon the
judgment of Hon'ble Supreme Court in
State (Delhi Administration) Vs. Pali
Ram: AIR 1979 SC 14 and referred to
paragraph no.29 whereof, which reads as
under:-

"29. The matter can be
viewed from another angle, also.
Although there is no legal bar to
the Judge using his own eyes to
compare the disputed writing with
the admitted writing, even without
the aid of the evidence of any
handwriting
expert,
the
Judge
should, as a matter of prudence and
caution, hesitate to base his finding
with regard to the identity of a
handwriting which forms the sheetanchor of the prosecution case
against a person accused of an
offence solely on comparison made
by himself. It is, therefore, not
advisable that a Judge should take
upon himself the task of comparing
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1321
the admitted writing with the
disputed one to find out whether
the two agree with each other; and
the prudent course is to obtain the
opinion and assistance of an
expert."

RESPONDENTS'
ARGUMENTS

14. Per contra, Sri Rahul Sripat,
learned Senior Counsel, submits that the
bar of Order 2 Rule 2 does not at all stand
attracted in the facts of the case as rightly
held by the first appellate court, inasmuch
as all cheques of different dates were
presented in different points of time and,
therefore, wrongful credit thereof in the
bank accounts of the payees would give
rise to separate causes of action. In addition
to Order 2 Rule 2 CPC, Rule 3 thereof was
also referred as regards joinder of several
causes of action and it was contended that
separate dates, separates payees, separate
amounts and separate clearance of every
cheque giving rise to separate cause of
action, if the plaintiff filed first suit in
respect of one cheque and joined causes of
action of remaining six cheques in the
second suit, bar of Order 2 Rule 2 CPC
would not be attracted. He further submits
that although no expert evidence was
brought on record, certainly there was an
order of conviction of Indrapal and also the
original cheques before the first appellate
court pursuant to summoning of the file of
the criminal trial and for invocation of
Section 73 of the Evidence Act, it is not
required to exercise such power only when
there are two conflicting expert reports. He
submits that in the facts of the case the first
appellate court has rightly compared the
signatures of the Managing Director as
available on various documents on record
and rightly arrived at a conclusion that the
bank was negligent in not comparing the
same
with
the
specimen
signatures
available with it. In support of his
submissions, learned Senior Counsel has
placed reliance upon following authorities:-

(i)
The
Haryana
Co-operative
Sugar Mills Ltd., Rohtak Vs. Joint Hindu
Family Firm Styled as Gupta Drum Supply
Company: AIR 1976 P&H 117;
(ii) Murari Lal Vs. State of M.P.:
AIR 1980 SC 531;
(iii) Shriniwas Pansari Vs. Hari
Prasad Mehra and others: AIR 1983 Pat
321;
(iv) Canara Bank Vs. Canara Sales
Corporation and others: AIR 1987 SC
1603;
(v) Babulal Agarwalla Vs. State of
Bikaner and Jaipur: AIR 1989 Cal 92;
(vi) Syndicate Bank Vs. West
Bengal Cements Lts. and others: AIR 1989
Delhi 107;
(vii) Mahabir Prasad Bubna Vs.
United Bank of India: AIR 1992 Cal 270;
(viii) Mathew Jacob Vs. Salestine
Jacob and others: AIR 1998 Delhi 390;
(ix) Jyoti H. Mehta and others Vs.
Kishore
J.
Janani
and
others:
MANU/MH/0133/2019; and
(x) Mrugendra Indravadan Mehta
and
others
Vs.
Ahemdabad
Municipal
Corporation:
MANU/SC/0420/2024.

ANALYSIS OF RIVAL
CONTENTIONS
Re:- Order 2 Rule 2 CPC

15. Having heard learned counsel
for the parties, I find it established on
record that the plaint of first suit filed on
05.02.1991 disclosed sending of notice
dated 19.08.1990 and non-compliance
thereof by the bank. The said notice being
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
on record as Exhibit-1, paper No.22-C-1/1,
contains details of all the seven cheques out
of which four were issued on different
dates in February, 1988, one cheque in
March, 1988 and two cheques in June,
1988. The second suit was filed on
16.02.1991 in respect of remaining six
cheques. From the statement contained in
paragraph nos.4, 9 and 10 of the first suit, it
appears that since three years period from
the date of encashment of first cheque, i.e.
05.02.1988, was going to expire, the
plaintiff-company reserved its right to
claim amount of remaining six cheques and
cause of action behind filing of the first suit
was alleged to have arisen on 06.03.1988,
i.e. the date of fraudulent encashment of the
cheque and payment made negligently.
Paragraphs no.4 and 10 of the plaint of first
suit read as under:-

"4. That in addition to the
said cheque, six more cheques were
also fraudulently encashed and
negligently paid by the defendant
Bank from the said account on
different
dates
bearing
forged
signatures
of
the
Managing
Director and the plaintiff reserves
its right to claim the amount of
those cheques together with interest
subsequently.
10. That the cause of action
for the present suit arose on
6.3.1988, the date of fraudulent
encashment of the cheque and
payment made negligently by the
defendant Bank, on different dates,
the defendant Bank was requested
to
make
good
the
loss,
on
19.8.1990, the date of notice, on
19.10.1990, the date of reply notice
and lastly about a week ago, when
the defendant Bank was personally
approached to settle the matter
amicably, but to no fruitful result or
effect, hence this suit, which lies
within the jurisdiction of this Court
and the Hon'ble Court is competent
to try the same."

16. The submission of Sri Rahul
Sripat that relinquishment to institute a lis
in relation to six cheques would not create
a bar to institute a second suit, when
examined
from
the
bare
statements
contained in the plaint of first suit, it would
reveal that the plaintiff itself had alleged
arising of cause of action in relation to first
suit on 06.03.1988, the date of fraudulent
encashment of the cheque and payment
made negligently by the defendant Bank on
different dates and when the defendant
Bank was requested to make good the loss,
on 19.8.1990, i.e., the date of notice, on
19.10.1990, i.e., the date of reply notice
and, lastly, when the defendant-Bank was
personally approached to settle the matter
amicably. It appears that the plaintiff took
shelter of plea of limitation of three years
from the date of arising of cause of action
and, according to the plaintiff, at the best,
its plea was that as the limitation was about
to expire in March, 1991, the first suit was
filed. Interestingly, second suit was also
filed in February, 1991, i.e. after 11 days
from the date of filing of first suit. By that
time, obviously limitation to file either of
the two suits had not expired, if, at all,
computation of period of limitation is
understood in the manner in which it has
been sought to be explained vide the
statements contained in both the plaints. As
per law, limitation to file a suit for recovery
of money would be three years computed
either from the date when the amount
became payable/due or from the date when
demand was made or it was not satisfied, as
the case may be. In both the suits, issue of
bar of limitation was framed and has been
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1323
decided by the first appellate court in
favour of the plaintiff-respondent and
against the bank. There is no challenge to
the said finding by the appellant-bank.
Even otherwise, this Court is satisfied that
both the suits were well within period of
limitation.

17. In view of the above, it is now
to be seen as to whether the first appellate
court was right in holding the suit as not
barred by the provisions of Order 2 Rule 2
CPC. For a ready reference, Order 2 Rules
2 and 3 CPC are reproduced as under:-

"2. Suit to include the
whole claim.-(1) Every suit shall
include the whole of the claim
which the plaintiff is entitled to
make in respect of the cause of
action;
but
a
plaintiff
may
relinquish any portion of his claim
in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part
of claim.-Where a plaintiff omits
to sue in respect of, or intentionally
relinquishes, any portion of his
claim, he shall not afterwards sue
in respect of the portion so omitted
or relinquished.
(3) Omission to sue for one
of
several
reliefs.-A
person
entitled to more than one relief in
respect of the same cause of action
may sue for all or any of such
reliefs; but if he omits, except with
the leave of the Court, to sue for all
such reliefs, he shall not afterwards
sue for any relief so omitted.
Explanation.-For
the
purposes of this rule an obligation
and a collateral security for its
performance and successive claims
arising under the same obligation
shall be deemed respectively to
constitute but one cause of action.
3. Joinder of causes of
action.-(1) Save as otherwise
provided, a plaintiff may unite in
the same suit several causes of
action against the same defendant,
or the same defendants jointly; and
any plaintiffs having causes of
action in which they are jointly
interested
against
the
same
defendant or the same defendants
jointly may unite such causes of
action in the same suit.
(2) Where causes of action
are united, the jurisdiction of the
Court as regards the suit shall
depend on the amount or value of
the aggregate subject-matters at the
date of instituting the suit."
(emphasis supplied)

18. The provisions, as extracted
above, show that the plaintiff has to include
whole of the claim which he is entitled to
make in respect of cause of action but he
can relinquish any part of his claim in order
to bring the suit within the jurisdiction of
Court.
The
omission
or
intentional
relinquishment of any part of his claim
would certainly bar the plaintiff to sue
afterwards in respect of portion so omitted
or relinquished. The subsequent suit can be
saved by the rigours of Rule 2 only when
the plaintiff obtains a leave of the Court at
the time of relinquishment or omission of
part of his claim. In the instant case, no
leave as regards institution of the second
suit in respect of remaining six cheques
was obtained by the plaintiff, although it
was not only well aware of the wrongful
credit of the accounts of the payees but it
itself had sent composite notice dated
19.08.1990 and received reply dated
19.10.1990 in respect of all seven cheques
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
and mentioned this fact in the plaint of the
first suit itself. The submission of Sri Sripat
that in paragraph no.4 of the plaint of first
suit, the plaintiff had reserved its right to
subsequently
claim
the
amount
of
remaining six cheques together with
interest, does not impress the Court,
inasmuch as Order 2 Rule 2 or 3 CPC does
not contemplate any such reservation by
the plaintiff himself. If interpretation of the
aforesaid provision, as suggested by Sri
Sripat, is accepted, it would demolish the
very statutory bar contained in CPC and
negate the legislative intent and would give
leverage to any plaintiff to omit or
relinquish any part of his claim or its
portion according to his own whims and
wishes, whereas such a reservation is
provided in clear words "except with the
leave of the Court" as per sub-rule (3) of
Rule 2 of Order 2 CPC.

19. Joinder of causes of action, as
argued by Sri Sripat while referring to Rule
3 of Order 2, in the facts of the case, would
be read only in respect of joinder of causes
of action based upon payment concerning
six cheques and the Court does not find any
defect in the frame of second suit on
individual or separate basis but when read
with the first suit and the composite notice,
the second suit was certainly barred by the
provisions of Order 2 Rule 2 CPC. Further,
joinder is contemplated in respect of several
causes of action in the same suit and not
joining of causes in two suits. In the facts of
the case, nothing prevented the plaintiff to
join grievance and relief in relation to all the
seven cheques in the first suit, as the record
position at the time of institution of both the
suits was the same, i.e. payment of all the
cheques had been released in favour of all the
payees and a composite notice Exhibit-1
describing a joint cause of action was very
much there. One should not forget that the
plea of different defendants as raised by Shri
Sripat while arguing against the bar of Order
2 Rule 2 is of no avail inasmuch as the
payees were added after 4 years of institution
of both the suits and no relief was ever
claimed against them.

20. The judgment in Haryana Cooperative Sugar Mills Ltd. (supra), cited by
Sri Sripat, cannot be read in favour of the
plaintiff, inasmuch as the Punjab and
Haryana High Court had laid down the
correct test falling under Order 2 Rule 2 CPC
stating that the claim in the new suit is in fact
founded upon a cause of action distinct from
that which was the foundation in the former
suit. It explained the cause of action as every
fact which will be necessary for the plaintiff
to prove in order to support his right to
judgment and observed that if the evidence to
support the two claims is different, then the
causes of action are also different. There is no
dispute about the proposition laid down in the
said judgment, however, as to how it can help
the plaintiff in the facts of the present case, is
not understandable. As observed above,
single cause of action in relation to all the
seven cheques had arisen at the time of filing
of the first suit itself and no distinction is
found
in
any of
the parameters
or
components, either qua pleadings or evidence
in both the cases. It is, therefore, held that the
second suit was clearly barred by Order 2
Rule 2 CPC as rightly held by the trial court
and wrongly decided by the first appellate
court. Hence, third question framed by this
Court in the admission order is answered in
favour of the defendant-appellant (bank).

Re:- Section 73 of Evidence Act

21. On merits of the plaintiff's
case as regards wrongful payment of
cheques, the only dispute was as regards
genuineness of signatures of the Managing
9 All. P.N.B. Vs. M/S Allen & Alvan Pvt. Ltd. & Ors.
1325
Director of the plaintiff-company on the
cheques. Admittedly, neither before the trial
court nor before the first appellate court
any expert evidence in terms of Section 45
of the Evidence Act was brought on record.
What the Court notices from the record is
that FIR was registered by the Managing
Director of the plaintiff-company against
the accused Indrapal on 29.07.1988. During
the pendency of the original suit, charge
sheet was submitted against the accused
and he was being tried by the court of
competent criminal jurisdiction in S.T.
No.1908 of 1994. Suits were dismissed in
the year 2002 by which time the sessions
trial was not over. Accused Indrapal was
convicted by the Chief Judicial Magistrate,
Aligarh on 29.03.2006, i.e. during the
pendency of civil appeals. Admittedly, the
original cheques were never brought on
record of the proceedings of civil suit,
however, the same formed part of the
record of the criminal trial. The trial court
observed about lodging of the FIR, transfer
of investigation to the Crime Branch and
also perused Exhibit Ka-5, i.e. the first
information report registered at Case Crime
No.254 of 1988. The first appellate court
observed about summoning of the file of
the criminal case by the trial court itself.
The first appellate court perused the
original cheques or their certified copies on
record and observed that though there were
various documents such as plaint, statement
of PW-1 and certain correspondences
entered into between the parties, the trial
court did not make any efforts to compare
the said signatures before deciding the
suits. As regards Exhibit-8, in relation
whereto first question has been framed in
the admission order, the first appellate court
observed that it being an introduction letter
issued by the bank to its Railway Road
Branch, it would be deemed to be
"admitted signatures" of the Managing
Director. The appellate court, thereafter,
proceeded to observe that the bank had not
produced specimen signatures on record
and then recorded following findings in
paragraph no.26 of the judgment:-

"२६. इ उद्देश्य े मैंने िौजद री पत् िली
में उपलब्ि मूल सिि सदत चैकों सजनकी प्रम सणत िोटो
प्रसतय ाँ प्रदिा-१२ लग यत १८ सिच रण न्य य लय की
पत् िली पर उपलब्ि है। देिेन्रजीत ि डर के हस्त िरों
की समल न असभलेख पर उपलब्ि द िे, ब्य न त एििं
प्रदिा क-८ लग यत क-११ पर देिेन्रजीत ि डर के
हस्त िर और सििेिकर प्रदिा-८ पर उपलब्ि देिेन्रजीत
ि डर के नमूने के बैंक के द्व र त्य सपत हस्त िर, े
अत्यन्त ूक्ष्मत पूिाक एििं गम्भीरत पूिाक की। चैक
सदन िंक १३-६-८८ िं० पी० ि ई० ी० ८८३६९९
िनर सि २६,९५३/- चैक िं० पी० ि ई० ी०
८८३७०० सदन िंक ३-६-८८ िनर सि २६,५८१/-,
चैक िं० पी० ि ई० ी० ८८३४०० सदन िंक २७-२८८ िनर सि २३६४१/-, चैक िं० पी० ि ई० ी०
८८३३९९ सदन िंक १-३-८८ िनर सि २२,७५१/-,
चैक िं० क्यू० ई० एम० ८७८५७८ सदन िंक २५-२-८८
िनर सि ४०,०००/-, चैक िं० पी० ि ई० ी०
८८३२०० सदन िंक ५-२-८८ िनर सि २४,४१०.६०,
चैक िं० क्यू० ई० एम० ८७८६०० सदन िंक १७-२-८८
िनर सि ५०,०००/- पर उपलब्ि देिेन्रजीत ि डर के
हस्त िर खुली आाँख े देखने पर ही प्रदिा-८ पर
िेवेन्रजीत वाडरा के हस्ताक्षरों से दकसी भी लेखीय
दवशेषताओां के पररप्रेक्ष्य में मेल नहीं खाते हैं। दबना
दकसी र्हन परीक्षण या प्रयोर्शाला परीक्षण पर
आधाररत दमलान के भी ये सभी हस्ताक्षर फजी
बनाये र्ये िदशगत हो रहे है दजसमें तमाम लाइन
क्वादलटी दडफेक्टस यथा ट्रेमर अस्वाभादवक
पेनदलफ्ट पेनपास एवां पेनहाल उपदस्थत है। दलखे
र्ये शब्िों की शापगनेस, र्दत तथा झुकाव में इतने
स्पष्ट अांतर दिखाई िे रहे हैं दक दकसी भी दस्थदत में
इन्हें एक व्यदि के लेख का नही माना जा सकता।
हस्ताक्षर के अदतररि कदतपय िैकों में धारक
दजनके नाम िैक जारी दकये र्ये है तथा धनरादश
की दहज्जे में ऐसे िौकाने वाले िोष है जो इतनी
प्रदतदित कम्पनी के द्वारा अपने व्यापार के सामान्य
अनुक्रम में जारी िैकों में नही हो सकते। उद हरण के
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
सलये चैक िं० पी० ि ई० ी० ८८३२०० सदन िंक ५२-८८ में पै े को प्र इ सलख गय है, टिेन्टी ि
थ उजेन्ड के बीच नीचे ओर िोर अलग कलम े
बढ य गय है। थ उजेन्ज के आगे के िोर को क ट
गय है सिर उ के ऊपर िोर सलख गय है। यह ाँ भी
देिेन्रजीत ि डर के जो हस्त िर है उनक सिसभन्न तथ
तुरन्त प्रक र में आ ज ने पर सिसभन्नत स्पि रूप े
उज गर है। इ ी तरह चैक पी० ि ई० ी० ८८३४०० में
िोरटी की स्पेसलिंग गलत है तथ ेल्ि को लेल्िज
सलख गय है।"

22.

The
above
findings
demonstrate
that
the
appellate
court
apparently acted as a well qualified expert
of comparing handwriting as well as
signatures. The component and parameters,
like trimmer, pen-lift, pen-pass, pen-hall,
sharpness of words, speed and alienation
etc have been described in the manner in
which a well qualified expert explains the
same.