BIHTA CO-OPERATIVE DEVELOPMENT CANE MARKETING UNION LTD., AND ANOTHER versus THE BANK OF BIHAR & ORS.

BIHTA CO-OPERATIVE DEVELOPMENT CANE MARKET-ING UNION LTD., AND ANOTHER

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 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. sum of Rs. 11,000 was withdrawn from the account by means of cheque which did not come out of the cheque book of the Society but which was loose cheque form surrendered by an ex-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 joint-ly. 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 com-bined 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 dispute between registered society and 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 busi-ness of 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 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 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 dispute in which one of the disputants was not member of socie¢y was also covered by the sec-tion. But only those non-members who had disputes with financing bank were made amenable to the jurisdiction of the Registrar, and in th~ present case the Society was not financing bank. Therefore cl. (e) would not apply. Nor would the amended Explanation apply, because the Explana-tion 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

BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, 1.) 849

as adding new head to the categories under s. 48(1)(a) t-o (e} of dis-putes 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 negli-gence 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

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 respon-dents Nos. 1 and 2. ·

R. S. Sinha, K. N. Srivastava and K. K. Sinha, for respondent

The Judgment of the Court was delivered by

Mitter, J. This is an appeal from judgment and decree of the Patna High Court on certificate granted by it.

The main question in this appeal is, whether the suit out of which this appeal arises was entertainable by 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) enu-merates disputes between certain classes of persons and/or the socie-ties 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 defen-dants 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 conten-tion raised on behalf of two of the defendant-appellants on the basis 11 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).

In order to find out whether s. 48(1) embraces the dispute bet-ween 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 society registered under the Bihar and Orissa Co-operative Societies Act, 1935 (hereinafter referred to as the Act). The second plaintiff was Secretary of the Union at the time when the suit was filed in 1951. Under Resolution dated the 16th April, 1947 of the Executive Conunittee of the Union, the defen-dant 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 running account. On the 26th of May, 1948, defendant No. 6 and defen-dant No. 7 went to the bank to encash 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 sum of Rs. 11,000/- had been withdrawn from the said account by .means of cheque which did not come out of the cheque book of the Union and that loose cheque form surrendered by an ex-constituent of the bank issued to someone o·n the 23rd March, 1948 had been converted Into 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 forgery at the trial of the suit. Criminal proceed-ings 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 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. large number of witnesses were examined and the Subordinate Judge came to the conclusion that the cheque in question was forged and fabricated document and that defendants 4, 5 and '7 acting in collu-sion 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

BIHTA MARKETING UNION v. BANK OF BIHAR (Mitter, /.} 85t

there was no sufficient evidence against defendants 3 and 6 and passed da.-ree as against defendants I, 2, 4, 5 and 7 jointly. Defen-dants 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 defen-dant No. 2 from any liability on the ground of negligence.

Before the High Court, 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 party to the cons-piracy 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 contro-versy before us that if the dispute in the suit is c.overed by s. 48(1) it could not be agitated in 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 registered society (other than dispute regarding disciplin-ary action taken by the society or its managing committee against 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 mem-bers, whether such sureties are members or non-members; or

(b) between member, past member, persons claim-ing through 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 ·

(d) between the society and any other registered society; or

(e) between financing bank authorised under the provisions of sub-s~tion (I) of section 16 and person who is not member of registered society; such disputes shall be referred to the Registrar:

Provided that no claim against ·1 past member or the estate of deceased mem.Per shall be treated as 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) claim by registered society for any debt or demand due to it from member, non-member, past member or the nominee, heir or legal repre-sentative of 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 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 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 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, dispute between the society and non-member would only fall within this clause if the non-member was surety of!\- member. Cl. (c) can have no oneration unless one party to the dispute was past or present officer, agent or servant of the society. Clause (d) is res-tricted 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 dispute in which one of the dispu-tants is not member of the society, but it is only operative when the other party to the dispute is 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, 'financing bank' means 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 financing bank and non-member. The question then arises whether the first Explanation to the section widens the

scope of sub-s. (I) of s. 48 so as to include claims by registered socie-ties 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 socie-ties in general and Bihar and Qrissa Co-operative Societies Act in particular was traced in decision of this Court i.e., Sagauli Sugar Works (Private) Ltd. v. Assistant Registrar, Co-operative Societies, Motihari & Others('). In that case, there was dispute between the appellant, company registered under the Indian Companies Act and society registered under the Act. The Society claimed 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 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 intro-duced by the Act of 1948 and observed:"Before the amendments introduced by the Act of 1948, the disputes which could be entertained by the Regis-trar were disputes among members, past members or their heirs, or their sureties or between society and its officers, agents or servants, or between society and other registered societies (without meaning to exhaust all the categories). But before the amendments, one who was not member J1 of· society or was not claiming through member or past member or deceased member, or was not surety of member or deceased member, was not subject to the jurisdiction of the Registrar under s. 48. That is to· say, any dispute between society or ·its members, past members or deceased members 'or sureties of such mem-G bers 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 registered society or member of registered society, could not have its claim, or claim against it by 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 claim by financing bank against (1) U962) Supp. 3-s.c.R. 804-A.l.R. 1962 s.c. 1367. (2) I.L.R. 40 Patna, 7.

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 reference, but that docs not mean that claim which is not of the descri p~ion referred to in s. 16(1) read with s. 2(c), by registered society against any non-member, who is not an agriculturist, is within the purviewofs. 48(1) read with the Explanation. The Explanation cannot be read as adding new head to the categories (a) to (e) under s. 48(1) of dis-putes which may be referred to the Registrar. Originally, the Explanation had been added only to make it clear that even if 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 registered society and non-member cognizable by the Registrar, thus excluding the juris-diction of the ordinary courts."

Appearing for the respondents I and 2, the learned Solicitor General in effect contended that the above decision required re-consideration and the words in the Explanation must be understood in their widest amplitude so that even if dispute between regis-tered society and 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 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 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 civil court in respect of its ordinary day-to-day transactions of advances to agriculturists

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 Expla-nation only served to clear up the doubt as to whethe_r 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 judg-ment 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 suit for dedaration that the defendant, the London Joint Stock Bank, was not entitled to debit the plaintiffs with cheque for £120. The plaintiffs had in their employ 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 certain day, the clerk made out 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 cheque for £120 which had been paid. The. clerk was 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.

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 negli-gence 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 con-tractual relation in this matter, it appears obvious that in drawing cheque the customer is bound to take usual and reasonable precautions to prevent forgery. Crime, is indeed, very serious matter, but every one knows that crime is not uncommon. If the cheque is drawn in such way as to facilitate or almost invite an increase in the amount by forgery if the cheque should get into the hands of dishonest person, forgery is not remote but 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 clerk of 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 tran-saction, 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 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 very simple thing in drawing cheque to take reasonable and ordinary precautions against for-gery. 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."

According to Lord Shaw the responsibility of what happens between the signature and presentation of the cheque, 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 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 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 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 cheque, but 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 bank-er 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 ascertain-ing whether the signatures on the cheque were genuine, the circums-tances 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. loose cheque form returned by an ex-constituent had been used for the purpose of making out 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 resolu-tion, 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 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

In the result, the appeal succeeds, the judgment of the Pataa High Court is set aside and that of the Subordinate Judge restored. The appellants do not want 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.

Appeal a/lowed.