# BIHTA CO-OPERATIVE DEVELOPMENT CANE MARKETA ING UNION LTD., AND ANOTHER v. THE BANK OF BIHAR & ORS

- **Citation:** [1967] 1 S.C.R. 848
- **Court:** Supreme Court of India
- **Decided:** 1966-10-12
- **Case number:** Civil Appeal No. 699 of 1964
- **Bench:** K. N. Wanchoo, J. M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bihta-co-operative-development-cane-marketa-ing-union-ltd-and-another-v-the-3925
- **Pages:** 11

## Headnote

Blhar and Orlssa Co-operative Societies Act (6 of 1935). s. 48 as
amended by Bihar Act 16 of 1948 and s. 57- Dispui• between registered
society and rwn-ml!mber-Jurisdictlon of Civil Court, when ousted.
The first plaintiff was a Society registered under the Bihar and Orissa
Co-Operative Societies Act, 1935, and the second plaintiff was its Secretary.
The Society had an account with the first defendant Bank. The 6th and
the 7th defendwts were the joint secretary and treasurer of the Society
respectively, who were jointly authorised to operate on the account. A sum
of Rs. 11,000 was withdrawn from the account by means of a
cheque
which did not come out of the cheque book of the Society but which was
a loose cheque form surrendered by an ex-<:onstituent of the Bank. The
apurious cheque bore the signature of the 7th defendant and the forged
signature of the 6th defendant The suit against the Bank, its manager
(the 2nd defendant) its employees (the 3rd, 4th and 5th defendants) and
defendants 6 and 7 was decreed against defendants I, 2, 4, 5 and 7 jointly. On appeal by the 1st and 2nd defendants, the High Coun found in
favour of the plaintiffs on the merits of the case, but dismissed the suit on
the ground that the jurisdiction of the civil court was ousted by the combined operation of ss. 48(9) and 57 of the Act.
On appeal to this Court, the defendants sought to suppon the judgment
of the High Court on the ground that the words in Explanation (I) to s.
48( I) of the Act must be understood in their wideot amplitude. so that,
even if a dispute between a registered society and a non-member did not
fall within any of the categories 48(1)(a) to (e), it would still be within
the purview of the section by reason of the Explanation.
HELD : The judgment of the High Court should be ~t aside. [858 A]
(i) The scheme of s. 48(1) is that certain disputes touching the business of a r~istered society should be referred to the Registrar and not be
taken to civil courts and made the subject matter of prolonged litigation.
Before the Act was amended by Bihar Act 16 of 1948 disputes in which a
Society might be involved with non-members (except as sureties) were not
within the section.
Therefore, the Explanation to the section as it then
stood, made no mention of non-members as such and only served to clear
up the doubt as to whether a dispute was referable to the Registrar when
the debt or demand was admitted and the only point at issue was the ability
to pay or the manner of enforcement of payment.
The amendment
in
1948. introduced cl. (e) in •· 48(1) by which a dispute in which one of
the disputants was not a member of a socie¢y was also covered by the section.
But only those non-members who had disputes with a financing bank
were made amenable to the jurisdiction of the Registrar, and in th~ present
case the Society was not a financing bank. Therefore cl. (e) would not
apply. Nor would the amended Explanation apply, because the Explanation had to include non-members after the insertion of category ( e)
in
a. 48( I), but. by such inclusion, the Explanation did not widen the scope
of s. 48(1) so as to include 'claims by societies against all non.members
even if they were not included in cl. (e). The Explanation cannot be read
B
c
D
•
r
G
H
A
B
c
D
E
f
G
11
BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, 1.) 849
as adding a new head to the categories under s. 48(1)(a) t-o (e} of disputes which rttay be referred to tile Registrar. It must be read only so as
to harmonise with and clear up any ambiguity in the main section. [854 B,
E-H; 855 A-Cl
Sagauli Sugar Works (Pv'(.) Ltd. v. Asstt,
Registrar,
Co-operative
Societies, Motihari, [1962] Supp. 3 S.C.R. 804, followed. ·
(ii) Because the signature of the 6th defendant was forged, there never
was any mandate by the Society to the Bank. Therefore, there was no
neg!:gence on the part of the Society. On the Contrary, there was negligence on the part of the Bank in n.ot ascertaining whether the signatures on
t

## Text

BIHTA CO-OPERATIVE DEVELOPMENT CANE MARKETA
ING UNION LTD., AND ANOTHER
v.
THE BANK OF BIHAR & ORS.
October 12, 1966
(K. N. WANCHOO, J. M. SHELAT AND G. K. MITTER, JJ.]
Blhar and Orlssa Co-operative Societies Act (6 of 1935). s. 48 as
amended by Bihar Act 16 of 1948 and s. 57- Dispui• between registered
society and rwn-ml!mber-Jurisdictlon of Civil Court, when ousted.
The first plaintiff was a Society registered under the Bihar and Orissa
Co-Operative Societies Act, 1935, and the second plaintiff was its Secretary.
The Society had an account with the first defendant Bank. The 6th and
the 7th defendwts were the joint secretary and treasurer of the Society
respectively, who were jointly authorised to operate on the account. A sum
of Rs. 11,000 was withdrawn from the account by means of a
cheque
which did not come out of the cheque book of the Society but which was
a loose cheque form surrendered by an ex-<:onstituent of the Bank. The
apurious cheque bore the signature of the 7th defendant and the forged
signature of the 6th defendant The suit against the Bank, its manager
(the 2nd defendant) its employees (the 3rd, 4th and 5th defendants) and
defendants 6 and 7 was decreed against defendants I, 2, 4, 5 and 7 jointly. On appeal by the 1st and 2nd defendants, the High Coun found in
favour of the plaintiffs on the merits of the case, but dismissed the suit on
the ground that the jurisdiction of the civil court was ousted by the combined operation of ss. 48(9) and 57 of the Act.
On appeal to this Court, the defendants sought to suppon the judgment
of the High Court on the ground that the words in Explanation (I) to s.
48( I) of the Act must be understood in their wideot amplitude. so that,
even if a dispute between a registered society and a non-member did not
fall within any of the categories 48(1)(a) to (e), it would still be within
the purview of the section by reason of the Explanation.
HELD : The judgment of the High Court should be ~t aside. [858 A]
(i) The scheme of s. 48(1) is that certain disputes touching the business of a r~istered society should be referred to the Registrar and not be
taken to civil courts and made the subject matter of prolonged litigation.
Before the Act was amended by Bihar Act 16 of 1948 disputes in which a
Society might be involved with non-members (except as sureties) were not
within the section.
Therefore, the Explanation to the section as it then
stood, made no mention of non-members as such and only served to clear
up the doubt as to whether a dispute was referable to the Registrar when
the debt or demand was admitted and the only point at issue was the ability
to pay or the manner of enforcement of payment.
The amendment
in
1948. introduced cl. (e) in •· 48(1) by which a dispute in which one of
the disputants was not a member of a socie¢y was also covered by the section.
But only those non-members who had disputes with a financing bank
were made amenable to the jurisdiction of the Registrar, and in th~ present
case the Society was not a financing bank. Therefore cl. (e) would not
apply. Nor would the amended Explanation apply, because the Explanation had to include non-members after the insertion of category ( e)
in
a. 48( I), but. by such inclusion, the Explanation did not widen the scope
of s. 48(1) so as to include 'claims by societies against all non.members
even if they were not included in cl. (e). The Explanation cannot be read
B
c
D
•
r
G
H
A
B
c
D
E
f
G
11
BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, 1.) 849
as adding a new head to the categories under s. 48(1)(a) t-o (e} of disputes which rttay be referred to tile Registrar. It must be read only so as
to harmonise with and clear up any ambiguity in the main section. [854 B,
E-H; 855 A-Cl
Sagauli Sugar Works (Pv'(.) Ltd. v. Asstt,
Registrar,
Co-operative
Societies, Motihari, [1962] Supp. 3 S.C.R. 804, followed. ·
(ii) Because the signature of the 6th defendant was forged, there never
was any mandate by the Society to the Bank. Therefore, there was no
neg!:gence on the part of the Society. On the Contrary, there was negligence on the part of the Bank in n.ot ascertaining whether the signatures on
the cheque were genuine, and the circumstances. attending the encasbment
of the cheque showed conclusively that the Bank was negligent and some of
its officers fraudulent.
[857 B-0)
I.,ondon Joint Stock Bank, Ltd. v. Macmillan, [1918] A.C. 777, referred
to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 699 of 1964.
Appeal from the judgment and decree dated April 14, 1961 of
the Patna High Court in Appeal from Original Decree No. 162 of
1955.
A. K. Sen, B. R. L. Iyengar and A. G. Ratnaparkhi, for the
appellants.
S. V. Gupte, Solicitor-General and R. C. Prasad, for respondents Nos. 1 and 2.
·
R. S. Sinha, K. N. Srivastava and K. K. Sinha, for respondent
No. 7.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal from a judgment and decree of
the Patna High Court on a certificate granted by it.
The main question in this appeal is, whether the suit out of
which this appeal arises was entertainable by a civil court, in view
of the provisions of s. 48(1) read withs. 57 of the Bihar and Orissa
Co-operative Societies Act, 1935. Broadly speaking, s. 48(1) enumerates disputes between certain classes of persons and/or the societies registered under the Act. which have to be referred to the
Registrar of Co-operative Societies for adjudication and s. 57(1)
provides that no civil court shall 'have jurisdiction in respect of any
dispute required by s. 48(1) to be so referred. This point was
not taken in the written statement of any of the 'defendants. The
Subordinate Judge decreed the suit against several of the defendants including the Bank of Bihar Ltd. On appeal, the learned
Judges of .the Patna High Court concurred, in the main, with the
findings of the Subordinate Judge but gave effect to the contention raised on behalf of two of the defendant-appellants on the basis
of s. 48(9) read with s. 57 of the Act. The appellants before this
Court are the plaintiffs. The only contesting respondents are the
Bank of Bihar Ltd., Madan Mohan Pandit and Babu Lal Varma
(defendants I, 2 and 6 in the suit).
850
SUPRBldB COURT RBPORTS
(1967] I S.C.R.
In order to find out whether s. 48(1) embraces the dispute between the parties in this case, we have to examine the facts out of
which this appeal arises. The first appellant, Bihta Co-operative
Development Cane Marketing Union Ltd. (hereinafter referred to
as the Union) is a society registered under the Bihar and Orissa
Co-operative Societies Act, 1935 (hereinafter referred to as the Act).
The second plaintiff was a Secretary of the Union at the time when
the suit was filed in 1951. Under a Resolution dated the 16th
April, 1947 of the Executive Conunittee of the Union, the defendant No. 6, Babu Lal Varma, Joint Secretary of the Union and Ram
Janarne Varma, defendant No. 7, the Treasurer of the Union, were
jointly authorised to withdraw moneys of the Union from the 1st
defendant, the Bank of Bihar Ltd., with which it had a running
account. On the 26th of May, 1948, defendant No. 6 and defendant No. 7 went to the bank to encash a cheque on behalf of the
Union and then they came to learn that the funds in the account
of the Union were not sufficient to meet the cheque. It appears that
on the 16th of April, 1948 a sum of Rs. 11,000/- had been withdrawn
from the said account by .means of a cheque which did not come
out of the cheque book of the Union and that a loose cheque form
surrendered by an ex-constituent of the bank issued to someone o·n
the 23rd March, 1948 had been converted Into a cheque purporting
to bear the signatures of defendant No. 6 and defendant No. 7. It
is not necessary to state the facts in detail and it will be sufficient to
note that the spurious cheque bore the signature of defendant No. 7
but the purported signature of the defendant No. 6 thereon was
found to be a forgery at the trial of the suit. Criminal proceedings were started and five defendants including defendants Nos. 6
and 7 were put on trial. Defendants Nos. 3, 4 and 5 were employees
of the defendant-bank. Ultimately, however, all the accused were
acquitted. The suit was instituted by the two plaintiffs against
seven defendants, all of whom have already been mentioned except
the second defendant who was the Manager of the Bank and in
charge of its. affairs and management at the relevant time. The
cause of action for the suit as against defendants 3 to 7 was that they,
in collusion and conspiracy with one another had authorised an
illegal withdrawal of Rs. 11,000/- out of funds of the Union lying
with the bank. The bank was sought to be made liable on the
ground that it was a trustee for the Union and had abused the
trust by allowing the amount in question to be embezzled through
its gross negligence. All the cl.efendants put in written statements,
some doing so jointly while others did so individually. A large
number of witnesses were examined and the Subordinate Judge came
to the conclusion that the cheque in question was a forged and
fabricated document and that defendants 4, 5 and '7 acting in collusion and conspiracy with one another had withdrawn the sum of
Rs. 11,000/- from the plaintiff's account with the bank fraudul~ntly
by means of the said farged cheque. He, however, thought that
A
B
c
D
p
G
H
BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, /.} 85t
A
there was no sufficient evidence against defendants 3 and 6 and
passed a da.-ree as against defendants I, 2, 4, 5 and 7 jointly. Defendants I and 2 on1y went up in appeal to the Patna High Court.
The High Court agreed with the finding of the Subordinate Judge
that defendants 4, 5 and 7 were parties to the conspiracy resulting in
the withdrawal of the sum of Rs. II ,000/-, but absolved the defenB
dant No. 2 from any liability on the ground of negligence.
c
D
E
F
G
H
Before the High Court, a further contention was put forward
on behalf of the bank that even if the bank was otherwise liable for
the negligen~e of its employees, it should not be held to be liable
because defendants 6 and 7 who were the agents of the Union were
negligent and dishonest in the discharge of the duty entrusted
to them by the Union. 'The High Court, on an examination of the
evidence, found itself unable to hold that there was any negligence or
lack of reasonable precaution on the part of the Union. It further
held that Ram Janame Varma may have been a party to the conspiracy which culminated in the withdrawal of the money through
the disputed cheque, but the Union could not be said to be negligent
or lacking in reasonable precaution merely because of that.
Having found in favour of the plaintiffs on the merits of the
case, the High Court allowed the appeal of the bank on the ground
that the jurisdiction of the civil court was ousted by the combined
operation of s. 48(9) read with s. 57 of the Act. There is no controversy before us that if the dispute in the suit is c.overed by s. 48(1)
it could not be agitated in a civil court but had to be referred to the·
Registrar of Co-operative Societies. It is, therefore, necessary to
set out the relevant portion of s. 48(1) which reads as follows:-
"48. (I) If any dispute touching the business of a
registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee
against a paid servant of the society) arises-
(a} amongst members, past members, persons claimin!!
through members, past members or deceased member
and sureties of members, past members or deceased members, whether such sureties are members or non-members;
or
(b) between a member, past member, persons claiming through a member, past member or deceased member,.
or sureties of members, past members or deceased members,
whether su~h sureties are members or non-members, and
the society, its managing committees or any officer, agent
or servant of the society; or
(c) between the society or its managing committee and
any past or present officer, agent or servant of the·
society; or
·
852
llUPlll!MB
COUJt.T
llBPOILTS
(1967] 1 S.c.R.
(d) between the society and any other registered
society; or
(e) between a financing bank authorised under the
provisions of sub-s~tion (I) of section 16 and a person
who is not a member of a registered society; such disputes
shall be referred to the Registrar:
Provided that no claim against ·1 past member or the estate
of a deceased mem.Per shall be treated as a dispute if the liability
of the past member or of the estate of the deceased member has been
·extinguished by virtue of sectio!1 32 or section 63.
Explanation--{ I) A claim by a registered society
for any debt or demand due to it from a member, nonmember, past member or the nominee, heir or legal representative of a deceased member or non-member or from
sureties of members, past members or deceased members,
whether such sureties are members or non-members, shall
be a dispute touching the business of the society within
the meaning of this sub-section even in case such debt or
demand is admitted and the only point at issue is the ability
to pay or the manner of enforcement of payment.
"
It will be noticed that not all disputes in which a registered
society may be involved are within the mischief of the section.
Assuming that the dispute in this case touches the business of the
Union which is a registered society, the question is: is it one which
comes under any of th~ heads mentioned in sub-els. (a) to (e) of the
sub-section? Sub-cl. (a) has no operation if one of the disputants
is the society itself.
So far as sub-cl. (b) is concerned, a dispute
between the society and a non-member would only fall within this
clause if the non-member was a surety of!\- member. Cl. (c) can
have no oneration unless one party to the dispute was a past or
present officer, agent or servant of the society. Clause (d) is restricted to disputes between two societies. Clause (e) which was
introduced by way of an amendment in 1948 (Bihar Act XVI of
1948) would certrrinly include a dispute in which one of the disputants is not a member of the society, but it is only operative when
the other party to the dispute is a financing bank authorised under
the provisions of sub-s. ( l) of s. 16. The definition of "financing
bank" was included for the first time in the Act by s. 2 of the Bihar
Co-operative Societies Act XVI of 1948.
Under the definition, a
'financing bank' means a registered society whose main object is to
make advances in cash or kind to other registered societies or to
agriculturists etc. It is nobody's case that the dispute in this case is
one between a financing bank and a non-member. The question
then arises whether the first Explanation to the section widens the
A
B
c
D
E
'
G
H
A
B
c
D
J1
G
H
BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, /.) 853
scope of sub-s. (I) of s. 48 so as to include claims by registered societies against non-members even if the same are not covered by clause
(e). It is to be noted that the word "non-member" was not to be
found in the Explanation to the section before its Amendment of
1948. The history of legislation with regard to co-operative societies in general and Bihar and Qrissa Co-operative Societies Act in
particular was traced in a decision of this Court i.e., Sagauli Sugar
Works (Private) Ltd. v. Assistant Registrar, Co-operative Societies,
Motihari & Others('). In that case, there was a dispute between
the appellant, a company registered under the Indian Companies
Act and a society registered under the Act. The Society claimed
a sum of Rs. 1,20,809/- from the appellant company as commission
and interest for the supply of sugarcane and referred the same to
the first respondent. The preliminary objection of the appellant
to the jurisdiction of the first respondent to adjudicate upon the
dispute was over-ruled. The appellant went to the Patna High
Court under Articles 226 and 227 of the Constitution for quashing
the orders of the first respondent. The High Court following a
previous decision in Union of India v. Registrar, Co-operative
Societies Patna(2) summarily dismissed the application. Before
this Court, in appeal, it was contended that the dispute was beyond
the pale of s. 48 and as such, not referable th~reunder. The Court
took into consideration the various amendments which were introduced by the Act of 1948 and observed:
"Before the amendments introduced by the Act of
1948, the disputes which could be entertained by the Registrar were disputes among members, past members or their
heirs, or their sureties or between a society and its officers,
agents or servants, or between a society and other registered
societies (without meaning to exhaust all the categories).
But before the amendments, one who was not a member
of· society or was not claiming through a member or a
past member or a deceased member, or was not a surety
of a member or a deceased member, was not subject to the
jurisdiction of the Registrar under s. 48. That is to·
say, any dispute between a society or ·its members, past
members or deceased members 'or sureties of such members on the one hand and non-members on the other was
not within the purview of the section, so that the appellant
company, which is not a registered society or a member of a
registered society, could not have its claim, or a claim
against it by a registered society, referred to the Registrar
for decision, under this section."
According to the Court, the effect of the amendments introduced
by the Act of 1948 was "that a claim by a financing bank against a
(1) U962) Supp. 3-s.c.R. 804-A.l.R. 1962 s.c. 1367.
(2) I.L.R. 40 Patna, 7.
854
SUPREMB COURT RBPORTS
[ 1967] l S.C.R
non-member to whom the former had made an advance in cash or
kind, with the sanction of the Registrar under s. 16( I), would be
eritertainable by the Registrar, on a reference, but that docs not
mean that a claim which is not of the descri p~ion referred to in s.
16(1) read with s. 2(c), by a registered society against any nonmember, who is not an agriculturist, is within the purviewofs. 48(1)
read with the Explanation. The Explanation cannot be read as
adding a new head to the categories (a) to (e) under s. 48(1) of disputes which may be referred to the Registrar. Originally, the
Explanation had been added only to make it clear that even if a debt
or demand is due and the only point at issue is the ability to pay or
the manner of enforcement of payment the dispute would come
within the purview of the main section 48(1). The addition of the
word 'non-member' by the Amending Act of 1948, lo the First
Explanation has not enlarged the scope of the main section 48(1)
so as to make all kinds of disputes between a registered society and
a non-member cognizable by the Registrar, thus excluding the jurisdiction of the ordinary courts."
Appearing for the respondents I and 2, the learned Solicitor
General in effect contended that the above decision required reconsideration and the words in the Explanation must be understood
in their widest amplitude so that even if a dispute between a registered society and a non-member which did not fall within any of the
categories (a) to (e) it would still be within the purview of the section
by reason of the Explanation.
We find ourselves unable to accept this contention. Before the
amendments introduced in 1948, the Explanation to the section
made no mention of non-members and non-members had to be
included in the Explanation because of the inclusion of this class of
persons in category (e) ofsub-s. (I) ofs. 48. The Explanation must
be read so as to harmonise with and clear up any :unbiguity in the
main section. It should not be so construed as to widen the ambit
of the section. The scheme of sub-section {I) of s. 48 seems to be
that certain disputes touching the business of a registered society
should not be taken to civil courts and made the subject matter of
prolonged litigation. The legislature took pains to specify the
persons whose disputes, were to be subject matter of reference to
the Registrar. Non-members did not come into the picture at all.
Non-members other than otlicers, agents or servants of the society
do not figure in sub-els. (a) to (d) except as sureties of members.
By sub. cl. (e) only those non-members who had disputes with a
financing bank authorised under the provisions of sub-s. (I) of s. 16
were made amenable to the jurisdiction of the Registrar. It was
probably thought desirable in the interest of the financing bank which
might otherwise be faced with litigation in a civil court in respect of
its ordinary day-to-day transactions of advances to agriculturists
A
B
c
D
F
G
H
A
B
c
D
E
G
H
BllITA MARKETING UNION v. BANK OF BIHAR (Mitter, /.) 855
who were non-members that disputes between the society and this
class of persons should be quickly and inexpensively adjudicated
upon by the Registrar. Before the amendment of 1948, ~he Explanation only served to clear up the doubt as to whethe_r a dispute. was
referable to the Registrar when the debt or demand was admitted
and the only point at issue was the ability to pay or the manner
of enforcement of payment. As already pointed out by this Court,
the Explanation had to include non-members after the insertion of
category (e) in sub-s. (I) of s. 48. The purpose of the Explan~t~on
never was to enlarge the scope of sub-s. {I) of s. 48 ·and the add1t10n
of category (e) to that sub-section and the inclu5ion of non-membeES
in the Explanation cannot have that effect.
In our opinion, the High Court was not justified in allowing the
appeal of the bank on that ground.
·
The learned Solicitor General then sought to support the judgment of the High Court on the graund that its decision on the merits
of the case was not correct. His argument in substance was that
even though there was negligence on the part of the bank and its
employees, the plaintiff society was not altogether free from blame
or negligence in that but fur the part played by at least one of its
employees in the matter of encashment of the cheque for Rs. 11,000/-
the fraud could not have been perpetrated. It was argued that if
both parties were negligent or blameworthy, the plaintiffs' claim
ought not to succeed. He referred us to the judgment of the House
of Lords in London Joint Stock Bank, Limited v. Macmillan &
Arthur(') in support of his argument. The facts in that case
were as follows.
The plaintiffs, Messrs. Macmillan and Arthur brought a suit
for a dedaration that the defendant, the London Joint Stock Bank,
was not entitled to debit the plaintiffs with a cheque for £120.
The plaintiffs had in their employ a confidential clerk who had been
with them for some years. They left to him the copying of their
books and filling up cheques for signatures. The usual practice
in the office of the plaintiffs seems to have been for the clerk to
present cheques for signatures to get petty cash usually for £3.
On a certain day, the clerk made out a cheque for £2 ·and asked
one of the partners to sign it which the partner did. As the clerk
did not turn up the next day, the partners became suspicious and
went to the bank. There they learnt that the clerk had presented a
cheque for £120 which had been paid. The. clerk was a thief and
had absconded with the money. The learned trial Judge found
that at the time when the cheque was presented to the partner for
signature the figure '2' was written thereon with enough space on
either side for insertion of additional figures and the clerk had
taken advantage thereof and altered the figure '2' to 120. The
(I) [1918] A.C. 777.
856
SUPREME OOURT llBPORTS
(1967] l S.C.R.
question was, whether the plaintiffs had been so negligent with regard
to the cheque that their action against the bank should fail. The
trial Judge found that the respondents were not guilty of any negligence in the mode of signing the cheque and assuming that they had
been guilty of negligence, the negligence was not the proximate
cause of the loss.
He therefore ordered judgment to be entered for
the plaintiffs. The Court of Appeal upheld this decision.
This
was, however, reversed in appe•.l to the House of Lords. Lord
Finlay L. C. observed:
"As the customer and the banker are under a contractual relation in this matter, it appears obvious that in
drawing a cheque the customer is bound to take usual
and reasonable precautions to prevent forgery.
Crime, is
indeed, a very serious matter, but every one knows that
crime is not uncommon. If the cheque is drawn in such
a way as to facilitate or almost invite an increase in the
amount by forgery if the cheque should get into the hands
of a dishonest person, forgery is not a remote but a very
natural consequence of negligence of this description."
The learned Lord Chancellor observed further at page 795:
"Of course the negligence must be in the transaction
itself, that is, in the manner in which the cheque is drawn.
It would be no defence to the banker, if the forgery
had been that of a clerk of a customer, that the latter
had taken the ·clerk into his service without sufficient
inquiry as to his character. Attempts have often been
made to extend the principle of Young v. Grote, 4 Bing.
253 beyond the case of negligence in the immediate transaction, but they have always failed."
According to the learned Lord Chancellor, leaving blank spaces
on either side of the figure '2' in the cheque amounted to a clear
breach of duty which the customer owed to the banker. The
learned Lord Chancellor said:
"If the customer chooses to dispense with ordinary
precautions because he has complete faith in his clerk's
honesty, he cannot claim to throw upon the banker the
loss which results. No one can be certain of preventing
forgery, but it is a very simple thing in drawing a cheque
to take reasonable and ordinary precautions against forgery. If owing to the neglect of such precautions it is
put into the power of any dishonest person to increase
the amount by forgery, the customer must bear the loss
as between himself and the ba11ker."
A
B
c
D
E
p
G
H
A
B
c
D
F
G
H
BllITA MARKETING UNION v. BANK OF BIHAR (Milter, /.) 857
According to Lord Shaw the responsibility of what happens between
the signature and presentation of the cheque, a period wholly in the
customer's control, lies entirely with him.
The principle of this case cannot ·help the respondent before
us. If the signatures on the .cheque had been genuine so that. there
was a mandate by the customer to the banker but the cheque was
somehow got hold of by arr unauthorised person and encashed by
him, the bank might have had a good defence. If the signatures on
the cheque or at least that of one of the joint signatories to the
cheque are not or is not genuine, there is no mandate on the bank to
pay and the question of any negligence on the part of the customer,
such as, leaving the cheque book carelessly so that a third party
could easily get hold of it would afford no defence to the bank.
According to Halsbury's Laws of England (3rd Edition) Vol. 2
article 380 :
"A document in cheque form to which the customer's
name as drawer is forged or placed thereon without
authority is not a cheque, but a mere nullity. Unless the
banker can establish adoption. or estoppel, he cannot debit
the customer with any payment made on such document."
In this case, the finding is that one of the signatures was forged so
that there never was any mandate by the customer at all to the banker and the question of negligence of the customer in between the
signature and the presentation of the cheque never arose. Not
only was there negligence on the part of the banker in not ascertaining whether the signatures on the cheque were genuine, the circumstances attending the encashment of the cheque show conclusively
that the banker was negligent and some of its officers fraudulent
right from the beginning. The cheque form did not come out
of the customer's cheque book. A loose cheque form returned by
an ex-constituent had been used for the purpose of making out a
cheque purported to be drawn by the customer. The entries in the
register for the issue of such loose forms were. so suspicious that it
is difficult to believe that the employees of the bank concerned with
the encashment of the cheque were acting bona fide. There was no
negligence on the part of the ..:ustomer according to whose resolution, the cheque had to be signed jointly by two persons. The fraud
could only be perpetrated because of the complicity of the
employees of the bank, no doubt, with the help of one of the officers
of the Union. The dishonesty of a particular officer of the Union
was not the proximate cause of the loss to the bank. In our opinion,
the case of G. C. Kurbar & Another v. Ba/aji Ramji Dange(') referred
to in the judgment of the High Court has no application to the
facts of this case.
(I) A. I. R. 1941 Bombay 274.
Ml 7Sup.CJ,,66-10
858
SUPltl!MB COUl.T JlBPOllTS
(1967) l S.C.L
In the result, the appeal succeeds, the judgment of the Pataa
A
High Court is set aside and that of the Subordinate Judge restored.
The appellants do not want a decree against respondent No. 7.
Consequently, there will be no decree as against the said respondent.
The other respondents must pay the costs of this appeal.
V.P.S.
Appeal a/lowed.
B