Britania Industries Ltd vs Punjab National Bank & Ors

2. The claim of the appellant-plaintiff is based on a purported bill of exchange dated February 15, 1983 for a sum of Rs. 1 crore only. The bill of exchange was drawn by two persons namely, Raghunath Dutta and Amit Dutta (respondent nos. 3 & 4 respectively) as partners in the firm Metropolitan Construction (respondent no. 2). The bill of exchange was accepted by M/s Lgee Enterprises (not made a party to the suit) and was further shown to be accepted by Punjab National Bank (respondent no. 1). It was then shown to be endorsed by respondent no. 2 in favour of the appellant-plaintiff and was delivered to it, who, thus, claims to have become the endorsee and the holder of the bill of exchange in question. The bill of exchange was presented for payment, but respondent no. 1 refused to make payment, thereby dishonoring the bill.

4. From the averments made in the plaint it is clear that the bill of exchange is drawn by respondent nos. 3 & 4 (defendant nos. 3 & 4 in the suit) as partners of the firm, respondent no. 2 (defendant no. 2 in the suit). Admittedly, suit summons were not served on defendant nos. 2, 3 & 4 and they never contested the suit at any stage. The acceptor of the bill of exchange is M/s Lgee Enterprise which was not impleaded in the suit on the facile plea that, based in Mumbai, it was beyond the jurisdiction of the Calcutta High Court. The contest was, therefore, directly with PNB which was described in the plaint as the “acceptor” of the bill.

5. PNB (respondent no.1) completely denied the case of the appellant- plaintiff made out in the plaint and was granted leave to defend the suit in terms of rule 3(5) of Order XXXVII.

10. Here it needs to be stated that after the filing of the written statement of the respondent-Bank the appellant-plaintiff sought to amend the plaint and to describe the respondent Bank as the “co-acceptor” of the bill of exchange which, in the plaint, as noted above, was described as the “acceptor” of the bill. The amendment petition was rejected by the trial court and the order rejecting the amendment petition was upheld right upto this Court.

14. On a careful consideration of the materials on record, the Division Bench found that there was no material to hold that the alleged bill of exchange was a validly executed instrument as the appellant-plaintiff failed to adduce any evidence in regard to its execution. The Division Bench further held that it was incumbent upon the appellant-plaintiff to prove the execution of the bill of exchange and its validity as it was repeatedly asserted in the written statement filed by the respondent-Bank that the alleged bill of exchange was brought into existence by practicing fraud and collusion and it was not a valid instrument and binding on the respondent.

12. Against the judgment and decree passed by the trial court, the respondent-Bank preferred an intra-court appeal before the Division Bench of the High Court and the Division Bench, as noted above, allowed the appeal, set aside the judgment and decree passed by the single judge and dismissed the plaintiff’s suit.

21. We find no merit in this appeal and is, accordingly, dismissed with costs.

April 17, 2013.