U. Ponnappa
Moothan Sons, Palghat Vs. Catholic Syrian Bank Ltd. & Ors [1990] INSC 287 (18 September 1990)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Verma, Jagdish Saran (J)
CITATION:
1991 AIR 441 1990 SCR Supl. (1) 542 1991 SCC (1) 113 JT 1990 (4) 94 1990 SCALE
(2)579
ACT:
Negotiable
Instruments Act, 1881--Section 9--`Holder in due course'--No defect in the
title of the transferor--Requirement of.
HEAD NOTE:
What
is the true meaning and scope of the expression 'holder in due course' as defined
in Section 9 of the Nego- tiable Instruments Act, 1881, was the question that
arose for consideration in this appeal.
Consequent
upon the pleading of promissory note and other title deeds relating to her
property by Defendant No. 5, (mother of Defendants 2 to 4) in favour of the
respondent Bank as security, thereby creating an equitable mortgage, the
respondent Bank allowed credit facilities like accommo- dation by way of Hundi
discount, Key loan and cheque pur- chases upto a limit of Rs.35,00,000 to Defendant
No. 1, a firm consisting of defendants Nos. 2 to 4 as partners. The first
defendant firm had business dealings with the appel- lant defendant No. 6. In
course of business it was supplying goods consisting of hill products and used
to receive pay- ment by way of cheques from defendant No. 6. Defendant No. 6
issued two cheques drawn on the Union Bank of India, Palgh- at, in favour of
the first defendant payable to the first defendant firm on order. The cheques
were purchased by the Respondent-bank and proceeds thereof were credited by the
bank to the account of first defendant, on valid considera- tion. The first
defendant withdrew the amount at various dates. When the respondent-bank sent
the cheques for collec- tion, the Union Bank of India returned the cheques with the endorsement "full cover
not received". Defendants 2 to 5 agreed to pay the amounts to the Bank but
could not pay the full amount, with the result the Bank filed a suit for
recovery of the balance amount from Defendant No. 6 also who had issued the cheques
in question. At the trial, Defendant No. 6 contended that since the firm
(defendant No. 1) did not supply the goods, it could not pay the money in the
bank. According to Defendant No. 6, the appellant, did not admit the purchase
of cheques by the respondent-bank for valid consideration and hence denied that
the bank was 'holder in due course'. The trial court held that the re- spondent-bank
is a 'holder in due course' and as such enti- tled to enforce the liability
against the appellant-defend- ant No. 6.
543
The trial court also held defendants 2 to 4 personally liable for the plaint
claim. Against the order of the trial court the appellant-defendant No. 6 alone
appealed to the High Court. The High Court affirmed the findings of the trial
court but modified the decree holding that the immova- ble properties mentioned
in the schedule to the plaint would first be proceeded against and in case the
entire amount of decree is not realised by the sale of those properties, the
Bank would proceed against the assets of the firm--defendant No. 1 and for the
balance, if any, the decreeholder would proceed against the defendants Nos. 2-4
and 6. Aggrieved by the said order of the High Court, the 6th defendant has
preferred this appeal.
Dismissing
the appeal, this Court,
HELD:
Indian Law is stricter, and is not satisfied merely with the honesty of the
person taking the instrument, but requires the person to exercise due
diligence, and goes a step further than English Law in scrutinising the causes
which go to make up the belief in the mind of the transfer- ee. [359B] In the
instant case, the holder namely defendant No. 1 made the necessary endorsements
in the two cheques in favour of the plaintiff Bank and the Bank endorsed
"payee account credited". The defendant No. 1 withdrew this amount
and there is no dispute about it. It must also be noted in this context that
there is no endorsement on the cheque made by the drawer namely the appellant
that cheques are not nego- tiable. In the absence of the cheques being crossed
"not negotiable" nothing prevented the plaintiff Bank to purchase the
cheques for a valuable consideration and the presumption under Section 118(g)
comes to his rescue and there is no material whatsoever to show that the cheques
were obtained in any unlawful manner or for any unlawful consideration.
[358E-G]
In a given case it is left to the court to decide wheth- er the negligence on
part of the holder is so gross and extraordinary as to presume that he had
sufficient cause to believe that such title was defective. [370A] The court
while examining these requirements including valid consideration must also go
into the question whether there was a contract express or implied for crediting
the proceeds to the account of the bearer before receiving the same. The
enquiry regarding the satisfaction of this re- quirement invariably depends
upon the facts and cir- 544 cumstances in each case. The words "without
having suffi- cient cause to believe" have to be understood in this back-
ground. [370B-C] In the instant case, there is also an implied contract to
credit the proceeds of the cheques in favour of defendant No. 1 to his account
before actually receiving them. As a question of fact this aspect is
established by the evidence on record. In such a situation the plaintiff need
not make enquiries about the transactions of supply of goods etc.
that
were going on between defendants No. 1 and 6. Even if defendant No. 1 has not
supplied the goods in respect of which the cheques in question were issued by
defendant No. 6 there was no cause at any rate sufficient cause for the
plaintiff to doubt the title of defendant No. 1 nor can it be said that the
plaintiff acted negligently. Viewed from this background it cannot be said that
there was sufficient cause to doubt the title nor there is scope to infer gross
negligence on the part of the plaintiff. [370E-G] Nelson v. Larhold, [1948] 1
K.B. 339; Baker v. Barclays Bank Ltd., [1955] 2 All E.R. 571; Gill v. Cubitt
English Reports, 107 Kings' Bench 806; Durg Shah Mohan Lal Bankers v. Governor
General in Council and Others, AIR 1952 Allaha- bad 590; Sunderdas Sobhraj, a
firm v. Liberty Pictures, a firm, AIR 1956 Bombay 618; A.L. Underwood Ltd. v.
Bank of Liverpool and Martins; Same v. Barclays Bank, [1924] All E.R. 230 at
page 241, referred to.
Raghavji
Vizpal v Narandas Parmanandas Bombay Law Re- porter, Vol. VIII (1906) 921,
Overruled.
Chitty
on Contracts, 26th Edn. Paragraphs 2778 & 2781;
Chalmers
on Bills of Exchange, 13th Edn. at p. 283; Paratha- sarathy on Cheques in Law
and Practice, 4th Edn. p. 74;
Halsbury's
Laws of England, 4th Edn. paragraph 221 page 186
and paragraph 222, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 183 of 1984.
From
the Judgment and Order dated 23.10.1982 of the Kerala High Court in A.S. No.
309 of 1977.
Dr.
Y.S. Chitale, Aseem Mehrotra, Mukul Mudgal, R.K. Aggarwal, S.K. Aggarwal and Sudhir
Gopi for the Appellant.
545 G.
Viswanatha Iyer and P.K. Pillai for the Respondents.
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. In this appeal
an important question touching upon the interpretation of Section 9 of The
Negotiable Instruments Act, 1881 ('Act' for short) defining 'holder in due
course' falls for consideration. The appeal is directed against the judgment of
the High Court of Kerala confirming the judgment of the Subordinate Judge, Tellicherry
in Original Suit No. 74 of 1975. To appreciate the question involved it becomes
necessary to state the relevant facts and while stating so we shall refer to
the parties as arrayed in the suit for convenience sake.
The
plaintiff Catholic Syrian Bank Ltd. is a banking company incorporated under the
Indian Companies Act having its Head Office in Trichur and branches at various
places.
The
first defendant firm consisting of defendant Nos. 2 to 4 as partners who are
brothers, was doing business in Telli- cherry in hill produces and they were
allowed credit facili- ties by the plaintiff Bank, like accommodation by way of
Hundi discount, key loan and cheque purchases upto a limit of Rs.35,00,000. A
promissory note was executed by defend- ants Nos. 2 to 4 in favour of their
mother, the 5th defend- ant for an amount of Rs.35,00,000 and the same was
endorsed in favour of the plaintiff as security for the facilities granted to
the first defendant firm. The 5th defendant had also deposited the title deeds
of her properties shown in the plaint schedule to create an equitable mortgage
to secure the repayment of the amounts due from first defend- ant. The first
defendant firm had dealings with 6th defend- ant as well as others. The first
defendant firm was supply- ing goods consisting of hill products and used to
receive payments by way of cheques. On 26.10.74, 6th defendant drew a cheque on
the Union Bank of India, Palghat Branch in favour of the
first defendant payable to the first defendant firm on order a sum of Rs.2,00,000.
The cheque was purchased by the plaintiff Bank from the first defendant on
30.10.1974 on valid consideration and proceeds were credited by the Bank to the
account of the first defendant. Similarly anoth- er cheque was drawn on
31.10.1974 and the first defendant endorsed the same to the plaintiff for valid
consideration and the proceeds were credited to the account of the first
defendant who withdrew the amount at various dates. The plaintiff Bank sent the
cheques for collection but the Union Bank of India returned the same with the endorsement "full cover not
received". The defendant Nos. 2 to 5 by two sepa- rate agreements offered
to pay 546 the amounts to the plaintiff Bank and as per the terms therein they
were to pay Rs. 1,000 per month and the 5th defendant was to pay the amount realised
by her from the tenants by way of rent and they could pay only 12,3 13.35 p.
Thereupon
after exchange of notices between defendant No. 6 and other defendants a suit
was filed for the recovery of the balance amount from defendant No. 6 also who
issued the cheques.
The
defendant No. 6 who is the appellant herein, con- tended that the cheques-were
issued to the first defendant on their representation that they would supply a
large consignment of pepper, dry ginger etc. and the understanding was that the
cheques would be presented only after the consignment was despatched. Since the
first defendant failed to despatch the goods, the 6th defendant could not pay
the money in the Bank and therefore the cheques were not ho- noured. He also
pleaded that he would not admit the purchase of cheques by the plaintiff and
that plaintiff was only a collection agent and there was no consideration for
purchase and therefore the plaintiff was not a holder in due course.
It was
also contended that plaintiff acted negligently and in disregard of the
provisions of law, therefore there was no valid cause of action against the
defendant. It may not be necessary for us to refer to the stand taken by the
other defendants. The trial court held that the plaintiff is a 'holder in due
course' and as such is entitled to enforce the liability against the 6th
defendant, who is the maker of the cheques. The trial court also held that the
defendant Nos. 2 to 4 were personally liable for the plaint claim and the
assets of the first defendant would also be liable if the hypothecation is not
sufficient to discharge the decree amount. The 6th defendant alone filed an
appeal in the High Court and the others figured as respondents. The High Court
confirmed the findings of the trial court but modified the decree holding that
immovable properties described in the Schedule to the plaint would be proceeded
against in the first instance and if the entire decree amount cannot be realised
by the sale of those properties, the plaintiff-Bank would proceed against the
assets of the first defendantfirm, and for the balance, if any, the
decree-holder would proceed against defendants Nos. 2 to 4 and 6 and the
liability of the 5th defendant is restricted to the extent of immovable
properties mortgaged by her. Aggrieved by the said judgment and decree, the 6th
defendant has preferred this appeal.
Dr. Chitale,
learned counsel appearing for the appellant submitted that respondent No. 1
herein namely the plaintiff-Bank is not a 'holder in due course' and therefore
cannot maintain any legal action 547 against the appellant i.e. defendant No. 6
who had drawn the cheques. His main submission is that the plaintiff Bank acted
negligently and did not act in good faith in paying the amounts due under the cheques
to the defendant firm without making any enquiries regarding the
"title" of the person namely defendant No. 1 from whom the Bank
claims to have purchased the cheques for consideration. It is submit- ted that
the cheques were issued by defendant No. 6, the appellant, with the
understanding that the goods would be supplied and the plaintiff Bank without
making any enquiries whether the goods were supplied or not and without any
verification from the Union Bank of India paid the amounts to the payee namely
defendant No. 1 within few days in a hasty and negligent manner. Therefore,
according to the learned counsel, the necessary ingredients of the definition
of 'holder in due course' in the case of plaintiff are not satisfied and
consequently the plaintiff Bank can not main- tain any claim against the
appellant.
Section
9 of the Act which defines 'holder in due course' reads as under:
"Holder
in due course" means any person who for considera- tion became the
possessor of a promissory note, bill of exchange or cheque if payable to
bearer, or the payee or indorsee thereof, if payable to order before the amount
mentioned in it became payable, and with- out having sufficient cause to
believe that any defect existed in the title of the person from whom he derived
his title." The definition makes it clear that to be a 'holder in due
course' a person must be a holder for consideration and the instrument must
have been transferred to him before it becomes overdue and he must be a
transferee 'in good faith and another important condition is that the
transferee namely the person who for consideration became the possessor of the cheque
should not have any reason to believe that there was any defect in the title of
the transferor.
It is
beyond dispute that the plaintiff bank credited the proceeds to the account of
the first defendant who also withdrew the amount on various dates. Therefore it
has been rightly held that the plaintiff purchased the cheques for valid
consideration after the necessary endorsement by the bearer before they became
overdue. In this con- 548 text, the learned counsel. however, contended that
the plaintiff was only a holder and was only a collection agent as per the
endorsement made by the defendant No. 1. Section 8 defines 'holder' as a person
entitled in his own name to the possession of a cheque or bill of exchange or a
promis- sory note and to receive or recover the amount due thereon from the
parties thereto. Section 118 of the Act which deals with the presumptions as to
negotiable instruments provides in clause (g) that the holder of a negotiable
instrument shall be presumed as a holder in due course. Section 118(g) reads as
under:
"118.
Until the contrary is proved, the following presump- tions shall be made:
XX XX XX
XX XX XX (g) that the holder of a negotiable instrument is a holder in due
course; provided that, where the instrument has been obtained from its lawful
owner, or from any person in lawful custody thereof, by means of an offence or
fraud, or has been obtained from the maker or accept or thereof by means of an
offence or fraud, or for unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him." In the instant case, the
holder namely defendant No. 1 made the necessary endorsements in the two cheques
in favour of the plaintiff Bank and the Bank endorsed "payee account
credited". The defendant No. 1 withdrew this amount and there is no
dispute about it. It must also be noted in this context that there is no
endorsement on the cheque made by the drawer namely the appellant that the cheques
are not negotiable. In the absence of the cheques being crossed as "not
negotiable" nothing prevented the plaintiff Bank to purchase the cheques
for a valuable consideration and the presumption under Section 118(g) comes to
his rescue and there is no material whatsoever show that the cheques were
obtained in any unlawful manner or for any unlawful consid- eration.
Now
the question is whether the other requirement of the definition i.e.
"without having sufficient cause t9 believe that any defect existed in the
title of the person from whom he derived his title" is satisfied. It is
contended on behalf of the appellant that the cheques were issued on the
representation that the defendant No. 1 would 549 supply the goods and that the
cheques would be presented after the despatch and delivery of the goods but
defendant No. 1 failed to despatch the goods and that plaintiff with- out any
enquiries about the title of the payee could not have purchased the cheques
because there was sufficient cause to believe that the title of the bearer was
not free from defects. According to the learned counsel, the Indian Law is
stricter, and is not satisfied merely with the hones- ty of the person taking
the instrument, but requires the person to exercise due diligence. and goes a
step further then English Law in scrutinising the causes which go to make up the
belief in the mind of the transferee.
To
appreciate the submission of the learned counsel it becomes necessary to refer
to the various authorities cited by him including the text books, in the first
instance an English law and then on Indian Law on the subject. In Eng- lish
Law, Section 29 of the Bills of Exchange Act, 1882 defines 'holder in due
course'. The relevant part of Section 29(1)(b) reads thus:
"29.
Holder in due course--(a) A holder in due course is a holder who has taken a
bill, complete and regular on the face of it, under the following conditions. namely:
(a) xx
xx xx (b) that he took the bill in good faith and for value, and that at the
time the bill was negotiated to him he had no notice of any defect in the title
of the person who negoti- ated it." Section 90 of this Act reads as under:
"90.
Good faith:--A thing is deemed to be done in good faith within the meaning of
this Act, where it is in fact done honestly, whether it is done negligently or
not." These provisions have been understood and interpreted to mean that
the holder should take the bill in good faith and he is deemed to have 'acted
in good faith and if he acts honestly and negligence will not affect his title.
In Byles
of Bills of Exchange, 25th Edn. Page 206 a passage reads thus:
550
"A wilful and fradulent absence of inquiry into the circum- stances, when
they are known to be such as to invite in- quiry, will (if the jury thinks that
the abstinence from inquiry arose from a suspicion or belief that inquiry would
disclose a vice in the bills) amount to general or implied notice." There
must, however, be something to put the holder on inquiry." In Nelson v. Larholt,
[1948] 1 K.B. 339 the defendant re- ceived cheques for value drawn by an
executor in fraud of the testator. Denning, J. held that the defendant could
not escape liability because he knew or ought to have known of the executor's
want of authority. In Baker v. Barclays Bank Ltd., [1955] 2 All E.R.' 571 the
expression "notice" occur- ring in Section 2(1)(b) of the Bills of
Exchange Act, 1882 is interpreted to mean actual notice and there is no ques- tion
of constructive notice.
In
Chitty on Contracts, 26th Edn. the learned author states the requirement that
must be fulfilled before a person may be considered a holder in due course as
under:
"First,
he must take the bill when it is complete and regu- lar on its face. Secondly,
he must take it before it is overdue and without notice that it was previously disho-
noured, if such was the fact. Knowledge that a bill is bound to be dishonoured
may also be relevant. Thus, a Canadian authority suggests that a holder, who
has taken a cheque with the knowledge of its having been countermanded, is not
a holder in due course. Thirdly, he must -take it in good faith and without having
notice of any defect in the title of the person who negotiates the bill to him.
In particular the title of the person who negotiates the bill is defective when
he obtained the bill or its acceptance by fraud, duress or other unlawful
means, or for an illegal consideration, or when he negotiates it in breach of
faith or under circum- stances amounting to fraud. Last, a holder in due course
must take the bill for value i.e. consideration." The learned author
dealing with the presumption of good faith has noted in paragraph 2781 thus:
"Presumption
of good faith. Every party whose signature appears on a bill is prima facie
deemed to have become a 551 party thereto for value. Every holder of a bill is
prima facie deemed to be a holder in due course; but if the ac- ceptance, issue
or subsequent negotiation of the bill was affected with fraud, duress or
illegality, the burden of proof is shifted, and the holder must prove that. subsequent
to the alleged fraud or illegality, value was in good faith given for the bill.
Thus, once a fraud is proved. the burden of proof is shifted to the holder who
must then show not only that value has been given for the bill. but also that
he took the bill in good faith and without notice of the fraud. If the holder
can discharge this onus he is, again, in the position of a holder in due
course." (emphasis supplied) The learned author Chitty in paragraph 2778
dealing with the subject 'The Consideration for a Bill' has stated thus:
"For
example, if a person whose banking account is overdrawn negotiates to this
bankers a cheque. drawn by a third party, to reduce the overdraft, the banker
becomes a holder for value of the cheque. The pre-existing debt of the
overdraft is a sufficient consideration for the negotiation of the cheque to the
banker." A consideration of the above passages and decisions goes to show
that English law requires that the holder in taking the instrument should act
in good faith and that he had no notice of any defect in the title and if he
has acted hon- estly, he is deemed to have acted in good faith whether it is
negligently or not. With the above background of English Law. we shall now
examine the Indian law on the subject.
In Bhashyam
& Adiga on the Negotiable Instruments Act, 15th Edn. at page 171, the authors
have dealt with the position in Indian law and it is observed that it would be
Seen that the Indian Legislature has adopted the older English law as laid down
by Abbott. C.J., (later Lord Tent- erden) in Gill v. Cubitt, English Reports
107~ King's Bench 806. Relying on this passage the learned counsel proceeded to
submit that the Indian law is stricter than English law and requires the person
to exercise due diligence and in this context the Indian law goes even a step
further than English law in scrutinising the causes which go to make up the
belief in the mind of the transferee. Gill's case (supra) is a case where a
bill of exchange was stolen during the night. and taken to the office of a
discount broker early in the following 552 morning by a person whose features
were known, but whose name was unknown to the broker and the latter being satis-
fied with the name of the acceptor, discounted the bill, according to his usual
practice, without making any enquiry of the person who brought it. On these
facts it was held that the plaintiff had taken the bill under circumstances
which ought to-have excited the suspicion of a prudent and careful man.
Abbott.
C.J. (later Lord Tenterden) observed:
"It
appears to me to be for the interest of commerce, that no person should take a
security of this kind from another without using reasonable caution. If he
takes such security from a person whom he knows, and whom he can find out, no
complaint can be made of him. In that case he has done all any person could do.
But if it is to be laid down as the law of the land. that a person may take a
security of this kind from a man of whom he knows nothing, and of whom he makes
no enquiry at all, it appears to me that such a decision would be more
injurious to commerce than convenient for it. by reason of the encouragement it
would afford to the purloin- ing, stealing, and defrauding.persons of
securities of this sort. The interest of commerce requires that bona fide and
real holders of bills, known to be such by those with whom they are dealing,
should have no difficulties thrown in their way in parting with them. But it is
not for the inter- est of commerce that any individual should be enabled to
dispose of bills or notes without being subject to inquiry." Bayley, J.
agreeing with Abbott, C.J.. however, added:
admit
that has been generally the case; but I consider it was parcel of the bona
fides whether the plain- tiff had asked all those questions which, in the
ordinary and proper manner in which trade is conducted, a party ought to ask. I
think from the manner in which my Lord Chief Justice presented this case to the
consideration of the jury, he put it as being part and parcel of the bona
fides; and it has been so put in former cases." Holroyd. J., having agreed
with Abbott, C.J. further ob- served that:
553
"The question whether a bill or note has been taken bona fide involves in
it the question whether it has been taken with due caution. It is a question of]act
for the jury, under all the circumstances of the case. whether a bill has been
taken bona fide or not; and whether due and reasonable caution has been used by
the person taking it. And if a bill be drawn upon parties of respectability
capable of answering it, and another person discounts it merely because the
acceptance is good, without using due caution, and without inquiring how the
holder came by it, I think that the law will not, under such circumstances,
assist the parties so taking the bill, in recovering the money. If the bill be
taken without using due means to ascertain that it has been honestly come by,
the party, so taking on himself the risk for gain. must take the consequence if
it should turn out that it was not honestly acquired by the person of whom he
received it. Here the person in possession of the bill was a perfect stranger
to the plaintiff, and he discounted it, and made no inquiry of whom the bill
had been obtained, or to whom he was to apply if the bill should not be taken
up by the acceptor. I think those circumstances tend strongly to show that the
party who discounted the bill did not choose to make inquiry, but supposing the
questions might not be satisfactorily answered, rather than refuse to take the
bill, took the risk in order to get the profit arising from commission and
interest." (emphasis supplied) In Chalmers on Bills of Exchange, 13th Edn.
at page 283 the learned author deals with the expression good faith' occur-
ring in Section 90 of the said Act and it is stated as under:
"Test
of bona fides The test of bona fides as regards bill transactions has varied
greatly. Previous to 1820 the law was much as it now is under the Act. But
under the influence of Lord Tenterden (Abbott, C.J. in Gill v. Cubbitt) due
care and caution was made the test, and this principle seems to be adopted by
Section 9 of the Indian Negotiable Instruments Act." (emphasis supplied) The
learned author Parathasarathy in his book 'Cheques in Law and 554 Practice'. 4th
Edn. has also noted this aspect. At page 74, a passage reads thus:
"The
Indian definition imposes a more stringent condition on the holder in due
course than does the English definition.
Under
English law, he should not have notice of a defect in the transferor's title
and he should have taken the instru- ment in good faith. Under Indian law,
there should be no cause to believe that any such defect existed. Hence, it is
not sufficient if the holder acts in good faith. He should also exercise due
care and caution in taking the instrument.
Perhaps,
the Indian definition is based on Gill v. Cubbit, [1824] 3 B & C
466)".
In Raghavji
Vizpal v. Narandas Parmanandas, Bombay Law Reporter Vol. VIII (1906) 921 the
Bombay High Court, howev- er. held that negligence does not affect the title of
a person taking the instrument in good faith for value. It is observed thus:
"The
test of good faith in such cases is thus: Regard to the facts of which the
taker of such instruments had notice is most material whether he took in good
faith. If there be anything which excites suspicion that there is something
wrong in the transaction, the taker of the instrument is not acting in good
faith if he shuts his eyes to the facts presented to him and puts the
suspicions aside without further inquiry." (emphasis supplied) We may also
mention it here that there is no reference to Gill's case in the above
decision. In Bhashyam & Adiga on the Negotiable Instruments Act,15th Edn. at
page 172. the author having noticed the ratio in Raghavji's case observed:
"The
Bombay High Court quoted the later English decisions with approval and applied them
to the facts of the case before them, but the question is not discussed in the
light of the words of this Section, and the decision is opposed to the opinion
expressed by Chalmers in his commentaries on the Indian Act." In Durga
Shah Mohan Lal Bankers v. Governor General in Council & Others, AIR 1952
Allahabad 590 a Division Bench examined the scope 555 of the provisions of
Section 9 of the Act and held that:
"The
provision that the person must have become possessor of a cheque "without
having sufficient cause to believe" is more favourable to the person who
claims to' have become holder in due course than the words "acting bona
fide". His claim would be defeated only if it is found that there was
sufficient cause for him to believe that a defect existed.
If he
fails to prove bona fides or absence of negligence, it would not negative his
claim. There must be evidence of positive circumstances on account of which he
ought to have believed that some defect existed." (emphasis supplied) In
this case also there is no reference to Gill's case. The learned counsel for
the appellant submitted that the deci- sion in Raghavji's case is in favour of
the appellant. He.
however.
conceded that the Durga Shah's case is in favour of the respondent i.e. the
plaintiff Bank. We may, however, note another judgment of the learned Single
Judge of the Bombay High Court in Sunderdas Sobhraj, a firm v. Liberty
Pictures, a firm, AIR 1956 Bombay 618 wherein the scope of Section 9 is
considered and it is held thus:
"The
rule as laid down in S. 9 of the Negotiable Instruments Act which defines
"holder in due course" is stricter than the rule of English law on
the subject and a payee or endor- see of a negotiable instrument can, under our.law.
prefer a claim to be a holder in due course of the instrument only if he
obtained the same without having sufficient cause to believe that any defect
existed in the title of the person from whom he derived his title.
A bona
fide holder for value without notice is, of course. as I have already observed.
in a different position." The learned Single Judge has not. however. referred
to the Raghavji's case. We have. already noted that in Raghavji's case reliance
was placed on English decisions later to the decision in Gill's case. The
authors Chalmers. Bhashyam & Adiga and Parathasarathy have uniformly stated
that Section 9 of the Act is based on the ratio in Gill's case. Learned counsel
appearing on both sides could not place any other decision directly on the
question. The view taken by the Allahabad High Court in Durga Shah's case is
more or less in accordance 556 with the principle laid down in Gill's case.
However,
with regard to the legal importance of negli- gence in appreciating the
principle of "sufficient cause to believe" a passage from Chalmers'
took "The Law Relating to Negotiable Instruments in British India"
4th Edn. may use- fully be noted:
"All
the circumstances of the transactions whereby the holder became possessed of
the instrument have a bearing on the question whether he had "sufficient
cause to believe'' that any defect existed.
It is
left to the Court to decide, in any case where the holder has been negligent in
taking the instrument without close enquiry as to the title of his transferor.
whether
such negligence is so extraordinary as to lead to the presumption that the
holder had cause to believe that such title was defective." (emphasis
supplied) This view is more sound and logical. The legal position as explained
by Chitty may be noted in this context which reads as under:
"While
the doctrine of constructive notice does not apply in the law of negotiable
instruments the holder is not entitled to disregard a "red flag"
which has raised his suspicions." We. therefore. modify the view taken by
the Allahabad High Court in Durga Shah's case to the extent that though the
failure to prove bona fide or absence of negligence would not negative the
claim of the holder to be a holder in due course. yet in the circumstances of a
given case. if there is patent gross negligence on his part which by itself
indicates lack of due diligence. it can negative his claim.
for he
can not negligently disregard a "red flag" which arouses suspicion
regarding the title. In this view of the matter we hold that the decision in Raghav.
ii's case does not lay down correct law. We agree with the view taken by the
Allahabad High Court with above modification.
Before
we apply the above principles to the facts of this case we would like to advert
to another submission of the learned counsel Dr. Chitale. He urged that in the
in- stant case the plaintiff Bank has not acted in good faith and with due
diligence in crediting the proceeds to 557 the account of the defendant No. 1
inasmuch as there is no authority either by way of express or implied contract
between them and the defendant No. 1. In support of this submission he relied
on certain passages in Halsbury's Laws of England. In Halsburv's Law of England, 4th Edn. in para- graph 22 1 (page
186) the author says:
"Bank
as holder for value. A banker who is asked-by a cus- tomer to collect a cheque
and who. pursuant to a contract express or implied to do so. credits the
customer forthwith with the amount of the cheque before the proceeds are re- ceived,
in fact receives the sum for himself and not for the customer; but he has the
same statutory protection in such circumstances as if he had received payment
of the cheque for the customer.
XX XX XX
Every holder is deemed to be a holder in due course; but. if the instrument is
shown to be affected by fraud. a banker dealing with it must show that he gave
value in good faith subsequent to the fraud. The status of holder for value may
be claimed by the bank; where cash has been given for the cheque over the
counter; where the cheque is paid in intro- duction of an overdraft. where the cheque
is paid in on the footing that it may be at once drawn against, whether in fact
it is drawn against or not; or where the cheque is subject to a lien. However,
the mere existence of an over- draft. though the banker's lien in respect
thereof makes him a holder for value to the extent of that lien, would not
preclude the protection.
XX XX XX
A banker who gives value for. or has a lien on, a cheque payable to order which
the holder derives to him for collec- tion without endorsing it as such, if any
rights as he would have had if, upon delivery, the holder has endorsed the cheque
in blank. A banker taking such a cheque is the holder thereof and. if the
requisite conditions are present, a holder for value or in due course. It is
not essential that the cheque be credited to the account of the holder."
Yet another important passage in paragraph 222 reads as under:
"222.
Crediting as cash. The mere fact that the banker has 558 credited the cheque in
his customer's account before receiv- ing the proceeds does not deprive him of
protection against the true owner in the event of his customer having no title.
or a
defective title, to the cheque. Crediting the custom- er's account does not of
itself alter the position of the banker from that of agent for collection to
that of holder for value. It is a question of fact in each case. In order to
constitute the banker a holder for value on his ground there must be a
contract, express or implied, that the customer should be entitled to draw
against the amount of the cheque before it is cleared.
If the
banker becomes a holder for value. he may.
in the
absence of a forged endorsement and unless the cheque is crossed 'not
negotiable' sue upon a cheque in his own name as a holder in due course and may
debit the customer if the cheque is dishonoured., He may apparently plead that
he is a holder for value as against the person claiming as true owner, except
where the endorsement is forged or the cheque is marked 'not negotiable.'"
(emphasis supplied) The above two passages indicate that the Banker who is
asked to collect a cheque can credit the customer with the amount before the
proceeds are received and if he has acted in good faith he has the necessary
statutory protection and credit- ing the customer account does not by itself
alter his posi- tion but that however is a question of fact in each case namely
whether there was such a contract express or implied that the customer should
be entitled to draw against the amount of cheque before it is cleared.
In
A.L. Underwood Ltd. v. Bank of Liverpool and
Martins, Same v. Barclays Bank, [1924] All. E.R. 230 at page 241 Atkin, L.J.
dealing with the protection that can be availed by a banker in such case,
observed as under:
"It
is sufficient to say that the mere fact that the bank.
in
their books. enter the value of the cheques on the credit side of the account
on the day on which they receive the cheques for collection. does not, without
more. constitute the bank a holder for value. To constitute value there must be
in such a case a contract between banker and customer.
express
or implied. that the bank will, before receipt of the 559 proceeds. honour cheques
of the customer drawn against the cheques. Such a contract can be established
by course of business and may be established by entry in the customer's pass
book, communicated to the customer and acted upon by him. Here there is no
evidence of any such contract." (emphasis supplied) To the same effect is
the ratio laid down in Baker v. Bar- clays Bank Ltd.. [1955] 2 All E.R. 571.
After applying the dictum of Atkin, L.J. in Underwood's case it is observed
therein that "it was not enough to show merely that the bank had entered
the value of the cheques on the credit side of the account on which the bank
received the cheques. To constitute value there must be in such a case a
contract between banker and customer, express or implied, that the bank will
before receipt of the proceeds honour cheques of the customer drawn against the
cheques." We find another passage in the above decision at page 581 which
reads thus:
"What
is suggested is that the bank did not give value. and the question arises which
often arises in cases of this sort. namely, whether, when a cheque is given to
a bank in these circumstances, the bank takes the cheque giving value for and
then becoming a holder in due course, or whether the bank takes the cheque
merely to collect the amount of the cheque for someone else.
That
is a question of fact. The true relationship has to be inferred from the acts
of the parties." (emphasis supplied) From the above discussion it emerges
that the Indian definition imposes a more stringent condition on the holder in
due course then the English definition and as the learned authors have noted
the definition is based on Gill's case.
Under
the Indian law, a holder, to be a holder in due course, must not only have
acquired the bill, note or cheque for valid consideration but should have
acquired the cheque without having sufficient cause to believe that any defect
existed in the title of the person from whom he derived his title. This
condition requires that he should act in good faith and with reasonable
caution. However, mere failure to prove bona fide or absence of negligence on
his part would not negative his claim. But in a given case it is left to the
560 Court to decide whether the negligence on part of the holder is so gross
and extraordinary as to presume that he had sufficient cause to believe that
such title was defective.
However.
when the presumption in his favour as provided under Section 118(g) gets
rebutted under the circumstances mentioned therein than the burden of proving
that he is a 'holder in due course' lies upon him. In a given case, the Court. while
examining these requirements including valid consideration must also go into
the question whether there was a contract express or implied for crediting the
proceeds to the account of the bearer before receiving the same. The enquiry
regarding the satisfaction of this requirement invariably depends upon the
facts and circumstances in each case. The words "without having sufficient
cause to believe" have to be understood in this background.
In the
instant case there is sufficient evidence estab- lishing the fact that the
defendants were allowed credit facilities upto a limit of Rs.35,00.000 by the
Bank and this fact is not in dispute. The pledging of the title deed by 5th
defendant of her properties with the bank with an inten- tion to create an
equitable mortgage to secure the repayment of the amounts due from 1st
defendant and the fact that a pronote for an amount of Rs.35,00,000 executed by
defendant Nos. 2 to 4 in favour of the 5th defendant was endorsed in favour of
the plaintiff Bank would establish that there was an express contract for
providing the credit facilities. It should therefore necessarily be inferred
that there is also an implied contract to credit the proceeds of the cheques in
favour of defendant No. 1 to his account before actually receiving them. As a
question of fact this aspect is estab- lished by the evidence on record. In
such a situation the plaintiff need not make enquiries about the transactions
of supply of goods etc. that were going on between defendants Nos. 1 and 6.
Even if defendant No. 1 has not supplied the goods in respect of which the cheque
in question were issued by defendant No. 6 there was no cause at any rate
sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor
can it be said that the plaintiff acted negligently disregarding 'red flag' raising
suspicion. Viewed from this background it cannot be said that there was
sufficient cause to doubt the title nor there is scope to infer gross negli- gence
on the part of the plaintiff.
There
is no material which amounts to rebuttal of the presumption in his favour as
provided under Section 118(g).
On the
other hand. the plaintiff has discharged the neces- sary burden to the extent
on him and has proved that he is a holder in due course for valid
consideration. Therefore, we hold that he could validly maintain an action 561
against all the defendants including defendant No. 6. There- fore, we affirm
the judgments of the courts below and dis- miss the appeal. In the
circumstances of the case, parties are directed to bear their own costs
throughout.
Y. Lal
Appeal dismissed.
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