IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2589 of 1992. SUIT NO.2589 of 1992. SUIT NO.2589 of 1992. Vyomesh H. Mehta, Indian Inhabitant, res. at 701, Mangal Varsha, West Avenue Road, Santacruz (West), Bombay 400 054 ..Plaintiff versus 1. The Union of India, through the Secretary, Ministry of Finance, New Delhi. 2. The Reserve Bank of India, having its office at Shahid Bhagat Singh Marg, Fort, Mumbai 400 001 3. Narandeo Pratap Singh, Village Nhawagpur, P.O.Khamaria, Dist. Mirzapur 4. Sureshchand Singh, Village Nhawagpur, P.O.Khamaria, Dist. Mirzapur ..Defendants Mr.Anil Menon for the Plaintiff Mr.S.R.Rajguru for the Defendant No.1 Mr.A.Davar i/b. M/s. Crawford Bayley & Co. for the defendant No.2. None for the defendant Nos.3 and 4 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 10th Sept., 2008. DATED : 10th Sept., 2008. DATED : 10th Sept., 2008. -2- ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT 1. The plaintiff has instituted the suit for declaration that he is owner of the 9 Special Bearer Bonds-1991, more particularly set out in prayer clause (b). (These bonds shall be hereafter referred to as as the Suit Bonds.) The plaintiff has also sought an Order directing that the defendants should pay to the plaintiff Rs.1,08,000/- being the Maturity Proceeds of the suit bonds. Few facts necessary for the disposal of the suit are as under: 2. Defendant No.2 Reserve Bank of India issued Special Bearer Bonds and the said bonds were of the face value of Rs.12,000/-. The cost of these bonds was Rs.10,000/-. By the very nature of the issue pertaining to Special Bearer Bond, 1991, the said bonds were bearer and the person who would tender the bonds for repayment would get the payment as and when the bonds were tendered for encashment. The Defendant No.1 is the Union of India, who had in a way permitted Defendant No.2 to issue the said bonds on its behalf. The plaintiff claims that he -3- purchased the suit bonds in the year 1981. The bonds were due for payment in December 1991. The Plaintiff claims that he could not lodge the same for payment immediately and that on 12.7.1992 he had handed over the suit bonds to his brother in law Kalpesh C. Shah-P.W.2 to arrange to see that the said bearer bonds are encashed, as the said Kalpesh was conversant with the procedure and used to operate from the office nearby to the Office of Reserve Bank of India. According to the plaintiff, said Mr. Kalpesh Shah on 14.7.1992 boarded a taxi at Share Bazaar to go to Bhendi Bazaar and at the relevant time he was carrying the suit bonds. It is also the case of the plaintiff that the said Kalpesh Shah got down of the taxi at the destination and forgot to carry with him the suit bonds. As such the plaintiff as well as Mr. Kalpesh Shah lost the custody of the suit bonds. The plaintiff informed the bank, Defendant No.2 by a letter dated 15.7.1992 being the letter at Exhibit P-2 about the loss of the bonds and further requested defendant No.2 to effect the stop payment of the suit bonds. The defendant No.2 sent reply to the plaintiff being letter at Exhibit P-3. The defendant No.2 informed the plaintiff that as the -4- suit bonds were bearer in nature, the plaintiff should obtain orders from the Court regarding stop payment. The defendant No.2 further informed the plaintiffs advocate that four bonds have been lodged with defendant No.2 by one Mr. Narangdeo Pratap Singh i.e. defendant No.3 and one Sureshchand Singh i.e. defendant No.4 has lodged 5 bonds for repayment through Allahabad Bank, Mirzapur Branch. The said letter is at Exhibit P-8. Plaintiff thereafter amended the plaint and impleaded said Narangdeo and Sureshchand as party defendant, as defendant Nos.3 and 4 respectively. The record shows that these two defendants were served with the Writ of Summons. They have not filed written statement and they were also absent at the stage of recording of evidence. The defendant No.1 has not filed written statement. The defendant No.2 Reserve Bank of India has filed the written statement and has contested the claim of the plaintiff. 3. Based on the pleadings as aforesaid, following issues came to be framed on 2.7.2008. My answer to each of the issue is mentioned against the respective issue. -5- 1. Whether the plaintiff proves that he is the owner of the "Special Bearer Bonds of 1991" having purchased the said 9 bonds? In the affirmative 2. Whether the plaintiff proves that he had lost the bearer bonds? In the affirmative 3. Whether the plaintiff proves that he is entitled to receive the proceeds of the bond from the defendant No.2? In the affirmative 4. What Order? As per final Order 4. At the stage of recording of evidence, Vyomesh Mehta, plaintiff gave evidence as P.W.1, Mr. Kalpesh C. Shah, brother in law of the plaintiff gave evidence as P.W.2. No other witness was examined on behalf of the plaintiff. No witness was examined on behalf of the defendants. -6- 5. I have heard Mr. Menon appearing on behalf of the plaintiff and Mr. Rajguru on behalf of the defendant No.1 and Mr. Daver on behalf of the defendant No.2. Perusal of the evidence of the plaintiff would clearly go to show that the plaintiff purchased the suit bonds. The plaintiff has annexed the Xerox copies of the suit bonds. The plaintiff Yomesh-P.W.1 has further stated that he had entrusted the bonds to Kalpesh Shah P.W.2. to see that they are encashed. This evidence of the plaintiff has gone unchallenged. Kalpesh- P.W.2 to whom the bonds were entrusted for encashment has given evidence that while he was travelling in a taxi he forgot to pick up the bonds and they remained in the taxi on 14.7.1992. Kalpesh P.W.2 has stated in his evidence that oral complaint was made to the concerned police station as well as to the Taximens Association. Kalpesh P.W.2 has in support of his case stated that he has taken steps to know the procedure of encashment of the bonds and visited the Office of the defendant No.2 had obtained a challan for encashment of the bonds and he has produced the challan at Exhibit P-9. Kalpesh-P.W.2 has thrown light to show as to -7- how the plaintiff lost control over the bonds. Here again the evidence of P.W.2 has gone unchallenged. With the aforesaid evidence on record, the question is whether the plaintiff has proved his ownership in respect of the suit bonds. In the absence of cross examination to the evidence of the plaintiff as regards he having purchased the suit bonds and in particular the fact that the plaintiff has annexed Xerox copies of the suit bonds it is clear that the plaintiff had possession of the bearer bonds at one point of time. The evidence of Kalpesh P.W.2 confirms the case of Yomesh-P.W.1 that the bonds were entrusted to him for encashment and he lost the suit bonds in the taxi. 6. It is true that the suit bonds have been lodged for encashment by defendant Nos.3 and 4 through Allahabad Bank, Mirzapur Branch. In the face of the case of the plaintiff that he was the owner of the suit bonds and he lost the suit bonds in transit, it was necessary for the defendant Nos.3 and 4 to come before the Court and contest the claim of the plaintiff. The defendant Nos.3 and 4 have not appeared in the Court and have not -8- given any explanation as to how they came in possession of the said bonds. It is true that the bonds were bearer in nature i.e. to say the person who would lodge them for repayment would be entitled to get the payment on maturity, still in the wake of evidence given by Yomesh P.W.1 about he having purchased the bonds, (which evidence has gone unchallenged) mere possession of the suit bonds by defendant Nos.3 and 4 respectively by itself would not give a better title to defendant Nos.3 and 4. It was expected of defendant Nos.3 and 4 to give some explanation as to how they came in possession of the suit bonds respectively. In the absence of such explanation the right of the plaintiff to encash the bonds remains undisturbed. It is in this circumstances, I am inclined to observe that the plaintiff has made out a case that he was the owner of the suit bonds at the relevant time i.e. on 14.7.1992 when the said suit bonds were lost in transit. The plaintiff has also proved that the suit bonds were lost. Once it is proved that the suit bonds were owned by the plaintiff, in the absence of explanation from the defendant Nos.3 and 4 it is plaintiff alone would be entitled to receive the maturity proceeds of the -9- suit bonds. The defendant No.2 who were to make payment will have to make payment to the person who is entitled to claim the payment and once it is observed that it is the plaintiff who is entitled to receive the payment, defendant No.2 will have to make payment to the plaintiff. 7. The maturity proceeds of one bond is Rs.12000/-. Considering the fact that in all 9 bonds are involved in the present suit, the maturity proceeds would be Rs.1,08,000/-. Considering the claim of the issuance of the bonds no interest was to accrue after expiry date of the bonds and as such the plaintiff would not be entitled to any interest whatseover. Plaintiff has not claimed any interest. In the circumstances mentioned aforesaid, the plaintiff would be entitled to receive the maturity proceeds of the bond. 8. The plaintiff has sought decree against all the defendants by using the term "defendants". The defendant No.1 Union of India is not liable to make any payment and no decree can be passed against the defendant No.1. The defendant Nos.3 and 4 were -10- also not liable to make any payment to plaintiff. Hence, no decree can be passed against the defendant Nos.3 and 4 regarding the payment of maturity proceeds of the bond. The maturity proceeds were to be paid by the defendant No.2 and hence the decree will have to be passed against defendant No.2 so that they can make the payment of Rs.1,08,000/- to the plaintiff. In the facts and circumstances of the case, I am not inclined to saddle any of the defendants with cost of the suit. Keeping in view the aforesaid discussion, I record my findings on the issues as follows: Issue No.1 in the affirmative Issue No.2 in the affirmative Issue No.3 In the affirmative Issue No.4 As per the Operative Order. 8. For the reasons mentioned aforesaid, I pass the following decree. DECREE -11- i. The suit is dismissed as against defendant Nos.1, 3 and 4. ii. Defendant No.2 do pay to plaintiffs Rs.1,08,000/- ( Rupees One Lakh Eight Thousand Only). iii. There shall be no order as to costs. iv. Since the defendant Nos.3 and 4 are absent before the Court, to enable the defendant Nos.3 and 4 to peruse the text of the Order and do the needful if they so desire, it would be proper if execution of this judgment and decree is stayed till 31.12.2008 and accordingly it is hereby ordered that the execution of the decree is stayed till 31.12.2006. v. Office shall ofcourse proceed to engross the decree as expeditiously as possible. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)