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PETITIONER: UNITED BANK OF INDIA

       Vs.

RESPONDENT: SMT. KANAN BALA DEVI & ORS.

DATE OF JUDGMENT21/04/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1510            1987 SCR  (2)1090  1987 SCC  (2) 583        JT 1987 (2)   227  1987 SCALE  (1)858

ACT:     Code  of Civil Procedure, 1908: Order XXII, Rules 4  and 10-A-Abatement--Death  of  defendant--Notice  given  to  one branch  of plaintiff bank--Delay in making applications  for impleading  legal representatives and setting  aside  abate- ment--Whether notice to one branch of a bank notice to other branches.

HEADNOTE:     The defendant had an overdraft account with a particular branch of the plaintiff bank in the city. A suit was  insti- tuted  against  him by that branch in 1952 for  recovery  of certain  sums with interest. He died on 6th  November  1960. The  widow informed another branch of the bank of the  death of her husband on 20th December, 1960.     The  applications for impleading the  legal  representa- tives of the defendant and for setting aside abatement  were made  in 1968, about 8 years after the death of the  defend- ant. The delay in making these applications was sought to be explained  with  the plea that the concerned branch  of  the bank had no knowledge of the death of the defendant till  it was informed by the other branch.     The  High Court rejected the applications on the  ground that no sufficient cause was shown for setting aside  abate- ment. It held that an intimation of the death of the defend- ant to the bank in the other branch could not be treated  as no  intimation to the branch which was the plaintiff in  the suit. Allowing the appeal by special leave, the Court,     HELD:  The  High  Court was in error  in  rejecting  the application  to  set aside abatement and to  condone  delay. [1095C]     All  branches of a bank could not be imputed  with  con- structive  knowledge of the death of a customer  simply  be- cause  one  of  the branches had been informed  of  it,  for notice  to  one branch of a bank is no notice to  the  other branches. [1092H; 1094H] 1091     In the instant case, it is not stated or proved that the branch  which  had filed the suit  had  information  earlier about  the  death of the defendant. It is evident  from  the

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record  that  even  on 3rd June, 1968 the  counsel  for  the defendant did not know about the death of the defendant. The fact  that  a particular branch of the  plaintiff  bank  had knowledge  of  the death was not sufficient  to  impute  the concerned branch with constructive notice. [1093A; 1094A, H; 1095A] (1918) The Times Law Reports, Vol. XXXV, p. 142 referred to.     The provisions of 0. 22, R. 10-A of the Civil  Procedure Code  requiring a pleader appearing for a party to the  suit to  inform the court when he comes to know of the  death  of that  party, whereupon the court is enjoined to give  notice of  such death to the other party, casts a duty only on  the pleader and is not absolutely mandatory. [1095B]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1747  (N) of 1973.     From  the  Judgment  and Order dated  16.6.1972  of  the Calcutta High Court in Appeal No. 54 of 1969.     C.S.  Vaidayanathan, Pravir Choudhary, K.V. Mohan,  H.K. Dutt and S.R. Bhat for the Appellant. G.S. Chatterjee for the Respondent. The Judgment of the Court was delivered by     KHALID,  J. This is an appeal by special leave filed  by the plaintiff bank against the judgment of the Calcutta High Court, arising from suit no. 547 of 1952, filed for recovery of  a sum of Rs.17,091-0-1 with interest. The  question  in- volved in this appeal is a short one, but of general  impor- tance to banks in the country. we have made it clear to  the appellant  bank that we are interested only in  laying  down the  law  in this appeal and not in giving a decree  to  the bank  for this small amount, the claim for which  originated nearly  35 years ago. The learned counsel for the  appellant bank has agreed to this suggestion.     The  defendant  in the suit was one Ramesh  Chandra  Roy Choudhury.  The plaintiff was the United Bank of India  Ltd. The  defendant had an over-draft account with the  bank.  He died  on the 6th November, 1960. On the 20th Dec., 1960  the widow of the defendant, 1092 Smt.  Kananbala Devi informed the Deshapriya Park Branch  of the bank of the death of the defendant. The bank had several branches  in  Calcutta. One of the branches  was  the  Royal Exchange Branch. It was this branch that instituted the suit in question.     The  applications for impleading the  legal  representa- tives of the defendant and for setting aside abatement  were made  by a Chambers Summons on the 8th August, 1968 about  8 years after the death of the defendant. The delay in  making these  applications was attempted to be explained  with  the plea  that  the  Royal Exchange Branch of the  bank  had  no knowledge of the death of the defendant till the  Deshapriya Park  Branch was informed of the death. The High  Court  re- jected  the applications holding that "In our opinion it  is no explanation to say that the Royal Exchange Branch of  the plaintiff  bank which had really instituted the  suit  could not  and/or  did not have knowledge of the death  of  Ramesh Chandra Roy Choudhury. An intimation of the death of  Ramesh Chandra  Roy  Choudhury to the bank in the  Deshapriya  Park Branch  could  not be treated as no intimation to  the  bank which happens to be the plaintiff in this suit. In our  view no  sufficient cause was shown in the petition  for  setting aside  the  abatement  and the learned Judge  was  right  in

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dismissing  the  said application.  The  appeal,  therefore, fails and is dismissed" Hence this appeal.     The  learned counsel for the appellant submits  that  it would be extremely dangerous for courts to impute  knowledge of the death of a customer with all the branches of a  bank, solely on the strength of information given to a  particular branch of the bank. It is submitted that in these days  when banking  business  has  expanded by leaps  and  bounds  with branches  spread over large areas, it would not be  possible for  a  particular branch to know the death of  one  of  its customers if that branch had not been informed of the death. In  the absence of highly technical modern methods  or  com- puterised information to all the branches, of their  custom- ers  and their details, no branch of a bank can be  presumed to know whether a particular customer is alive or not unless that hank is given necessary information.     The  submission  that all branches of a bank  should  be imputed  with constructive knowledge of the death of a  cus- tomer  simply because one of the branches had been  informed of it would result in adverse consequences and would  defeat actions by banks for recovery of dues 1093 and  would  work great loss to banks and would  harm  public interest. In this case, it is not stated or proved that  the Royal  Exchange  Branch had information  earlier  about  the death  of the defendant. To prove this we have  two  letters produced by the appellant: (1) dated 3rd June, 1968 and  the other  dated 17th June, 1968. The two letters read  as  fol- lows:                            10 OLD POST OFFICE ST.,                                   CALCUTTA.                    M/s. S.N. Sen & Co.                    Dear  Sir,                            3rd               June, 1968.               United Bank of India Ltd.                        v.               Ramesh Chandra Roy Choudhury.               As  I have not yet been able to  make  contact               with  my client until now in spite of  my  at-               tempts  on that behalf, please do not  mention               the  suit tomorrow but mention the  suit  some               time next week. The suit was part-heard  about               9  or  10 years before and my client  has  not               seen  since then. I hope you will mention  the               suit next week on previous notice to me.                                             Yours  faithful-               ly, sd/-K.P. Mustaphy.                     M/s. S.N. Sen & Co.                     Dear Sir,                           17th               June 1968.                                Suit No. 547 of 1952                             United Bank of India Ltd.               V.               Ramesh Chandra Roy Choudhury               Kindly  note that when the above suit will  be               mentioned  by  you  before  his  Lordship  the               Hon’ble  Mr. Justice R.M. Dutt, I will  submit               his  Lordship  that as the defendant  died  in               1960,  the suit has abated and cannot be  pro-               ceeded with.                                             Yours  faithful-               ly, Sd/-K.P. Mustaphy. Both the letters are written by the counsel for the  defend- ant to 1094

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the  bank. It is evident from the first letter that even  on 3rd  June, 1968, the counsel for the defendant did not  know about  the  death of the defendant. It was  only  thereafter that he came to know of the same.     This branch of law appears to be barren of authority.  A question  akin  to this is reported in 1918, The  Times  Law Reports,  Volume  XXXV,  page 142. The brief  facts  are  as follows:               The  plaintiffs’  claim in the suit was  on  a               cheque for a 100, dated February 5, 1918 drawn               by  the  ,defendant and made  payable  to  the               order of a Mrs. N. Try, who endorsed it to the               plaintiffs.  The defendant obtained  leave  to               defend.  The  bank  had  branch  at  Victoria-               street, Westminster. of which the manager  was               Mr.  Stephen Trott. Among their customers  was               Mrs.  Try.  The  bank  had  a  branch  at  the               Oxford-street branch of the Bank and she asked               the  manager to cash it. The amount was  paid.               The manager had no notice that the cheque  had               been stopped. The cheque when presented by the               Victoria-street  Branch to  the  Oxford-street               Branch  was  returned marked "Ordered  not  to               pay". The cheque was stopped by a letter  from               the  defendant  to the  Oxford-street  Branch.               That letter was undated.     It  was  under these circumstances that the  action  was brought. The question was when the drawer of a cheque  stops payment by a notice given only to that branch on which it is drawn and the payee afterwards endorses the cheque to anoth- er  branch  of the same bank and the manager of  that  other branch advances money on the cheque in good faith and  with- out  notice  that the cheque had been stopped,  whether  the bank is entitled to recover against the drawer in an  action on the cheque. Here it was clear that the cheque was stopped on  the Oxford- street Branch and that there was  no  notice yet  at the Victoria street Branch when the cheque was  pre- sented.  it  was held that the bank was the  holder  of  the cheque  and  the fact that the branch at  Oxford-street  had notice  not to pay the cheque did not affect the  bank  and, therefore, the bank was entitled to relief. It was  observed that there was a right to a separate notice of dishonour  as between the different branches of a bank.     Though this judgment is not .on all fours with our case, we  seek  some assistance from it for our purpose  and  that limited purpose is that notice to one branch of a bank is no notice  to the other branches. That being so the  fact  that the Deshapriya Park Branch had knowledge of 1095 the  death, will not be sufficient to impute Royal  Exchange Branch with constructive notice and reject the  applications to set aside abatement and to condone delay.     Of  course,  the law under the present  Civil  Procedure Code obviates this difficulty to some extent under Order  22 Rule  10-A, Under the rule, when a pleader appearing  for  a party to the suit comes to know of the death of that  party, he  shall  inform the Court about it,  whereupon  the  Court shall give notice of such death of the other party. However, this  provision  not being absolutely mandatory and  cast  a duty only on the pleader, we thought it necessary to  answer the question of law involved in this appeal.     For  the foregoing reasons we hold that the  High  Court was  in an error in rejecting the application to  set  aside abatement  and to condone delay on the plea that  notice  to one branch will be notice to other branches.

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   We  set aside the judgment of the High Court  and  allow this  appeal with no order as to costs, As indicated  above, the matter will rest here and the bank will not be permitted to  proceed against the defendant or his  legal  representa- tives to realize the amount involved in the suit. The amount will  be deemed to have been fully discharged. We have  only decided the question of law for the benefit of the banks and general public. P.S.S.                                                Appeal allowed. 1096