Sachi Kanta Hazari, J.
1. This is a suit under Order XXXVII of the Civil P. C., inter alia, praying for a final judgment and decree for a sum of Rs. 32,34, 740,46 p. in favour of the plaintiff against the defendant 2 less a sum of Rs. 1,50,000/- paid by the defendant 1 after the institution of the suit and for other reliefs. The plaintiff's case is that in or about June 1983 at the request of the defendant 1 the plaintiff agreed to lend and advance a sum of Rs. 25 lakhs repayable by the said defendant on demand after 90 days. The said loan and advance was made by the plaintiff to the defendant 1 as and by way of temporary accommodation for the purpose of business of the defendant 1 after duly deducting the interest for 90 days on the said sum of Rs. 25 lakhs at the rate of 18% per annum. The plaintiff paid the said sum by Pay Slip/Pay Order No. 230954 dt. 1-6-83 issued by the Bank of India, Calcutta Main Branch drawn in favour of the Punjab National Bank, A/c. Sri Ambika Jute Mills Ltd., dt. 2nd June, 1983 a sum of Rs. 23,84,375/-. The defendant I in acknowledgement of the said loan and advance executed three several hoondies dated 1st June 1983, two for Rs. 10 lakhs each and one for Rs. 5 lakhs and the due date of the said three several hoondies was 1st June 1983. The said three hoondies were duly presented to the defendant 2, Punjab National Bank, for payment through Sri N. C. Saha, Notary public of Premises No. 18, Old Post Office Street, Calcutta on 2nd Sept., 1983, but the defendants, Sri Ambika Jute Mills Ltd. and the defendant 2, Punjab National Bank, failed and neglected to pay the said sum of Rs. 25 iakhs and the said three hoondies were dishonoured by nonpayment. Each of the defendants was duly given notice of such dishonour. Between Sept, 1983 and April, 1986, the defendant 1 from time to time made payment of a sum of Rs. 6,25,000/- to the plaintiff and after giving due credit of the sum of Rs. 6,25,000/- the plaintiff is entitled from each of the defendants to a sum of Rs. 32,34,740.40 p. The particulars whereof are as follows :
i) Principal sum Rs. 25,00,000.00
ii) Interest 18.5% per annum
calculated till April 30, Rs. 13,59,740.46
1986 Rs. 38,59,740.00
Less : Amount paid Rs. 6,25,000.00
Balance due Rs. 32,34,740.46
The plaintiff's further case is that me defendant 2, Punjab National Bank, accepted the said hoondies as a co-acceptor. The plaintiffs have annexed the xerox copies of the said three hoondies with the plaint.
2. The defendant 2, Punjab National Bank, filed
affidavit-in-opposition. The case of the defendant 2 is that on June 2, 1983 one Radhakrishan More as Director of the defendant l, accepted three several hoondies on behalf of the defendant 1 and the said hoondies were co-accepted by one Sri Rule Prasad, Manager, Punjab National Bank, Shyambazar Branch with the stamp impression of the said branch of the defendant 2 Bank on 2nd June, 1983. It is submitted by the learned advocate appearing on behalf of the defendant 2 that Sri Rule Prasad signed the said hoondies in furtherance and pursuance of the conspirary between the plaintiff and the defendant 1 and the said Sri Rule Prasad. That on 2nd June, 1983 a Current Account No. 1199 was opened at the Shyambazar Branch of the defendant 2 Bank by its three Directors, viz. Sri Radhakrishan More, (2) Dhanraj Bagaria and (3) Sri Narayan Prasad Bagaria, in the name of the defendant 1 Sri Ambika Jute Mills Ltd. and a sum of Rs. 2100/-was deposited by cash in the said Current Account. On 3rd June, 1983 a draft bearing No. 230954 dt. 1st June, 1983 for a sum of Rs. 23,84,375/- was deposited and on 4th June, 1983 the proceeds thereof were credited to the said current account of the defendant 1. The co-acceptance made by Sri Rule Prasad, the Manager of the defendant 2, Bank, was beyond his power and authority and without any sanction obtained from the competent authority and the same was done by the Manager not in the usual course of business of the defendant 2 Bank. It is further submitted by the learned Advocate for the defendant 2 that the defendant 2 was not a party to the said three hoondies arid the same were without any consideration. The said co-acceptance was made by Sri Rule Prasad in single signature of his own, with branch rubber stamp of the defendant 2 Bank without any margin and/or commission contrary to and or in violation of the rules of the bank 'and was without the authority of the bank. When the Bank came to know of the wrongful and fraudulent act and the acts or omission of Sri R, Prasad, he was charge-sheeted and 'disciplinary" proceedings were commenced against him and ultimately Sri Rule Prasad was dismissed. It is submitted by Mr. Bhabra, learned advocate appearing on behalf of the defendant 2, that the defendant 2 bank neither was the drawer, nor the drawee and there is no provision under the Negotiable Instruments Act as co-acceptor. The three hoondies in suit are void and not enforceable in law. Mr. Bhabra referred to the several interpolations in the three hoondies and submitted that the plaintiff has not filed the original hoondies nor have given any inspection of the original hoondies to the defendant 2 Bank and as such, the suit is not maintainable in law.
3. Mr. Bimal Chatterjee, learned advocate appearing on behalf of the plaintiff, produced a letter showing that the inspection of the three hoondies were given to the defendant 2 Bank and when the letter was produced, Mr. Bhabra conceded that his client had the inspection of the three hoondies. However, the three original hoondies were produced by Mr. Chatterjee on behalf of the plaintiff at the time of the hearing.
4. Mr. Bhabra, learned advocate appearing on behalf of the defendant 2, Bank, submitted that from the hoondies it appears that the Branch Manager co-accepted the hoondies. It is submitted by Mr. Bhabra that since the defendant 2 Bank is not the drawee of the hoondies, the bank cannot be the co-acceptor and/or acceptor of the said hoondies. Mr. Bhabra referred to Section 7 of the Negotiable Instruments Act and submitted that after the drawee of a bill has signed his assent upon the bill, he is called an acceptor. Since the Bank was not a drawee, the question of accepting the hoondies never arose.
5. Mr. Bimal Chatterjee, learned advocate appearing on behalf of the plaintiff, relied on the decision of the Calcutta High Court reported in AIR 1930 Cal 697 (Jogesh Chandra Dhar v. Mahammad Ibrahim) and submitted that where no party is named in the hoondies but the acceptance is made by a party so that the acceptor might be deemed to have admitted himself to be party addressed and the party who have accepted the hoondies is stopped from contending that he is not acceptor and is not the drawee. In the said case, the Hon'ble Mr. Graham and Miner, JJ. held as follows:
"An instrument not addressed to a drawee can become a bill of exchange if a third party endorses an acceptance which is not inconsistent with the address and that the acceptor might be deemed to have admitted himself to be the party addressed. The endorsee thus becomes liable under the instrument and is estopped from contending that he is not the drawee."
6. Mr. Bimal Chatterjee, learned advocate for the plaintiff, submitted further that since the Bank accepted the hoondies, the documents should be considered as hoondies. Mr. Bhabra for the defendant 2, Bank, referred to Section 33 of the Negotiable Instruments Act and submitted that no person other than the drawee can accept a hoondi and can bind himself by such acceptance. The provisions of Section 33 of the Negotiable Instruments Act is set out hereinbelow :
"No person except the drawee of a bill of exchange, or all or some of several drawees, or a person named therein as a drawee in case of need, or an acceptor for honour, can bind himself by ah acceptance."
7. Mr. Bimal Chatterjee relied upon the decision , (Manick Chand Gagri v. Chartered Bank) P. B. Mukharji and R. S. Bachawat, JJ. held as follows :
"An acceptance of a hundi or a bill of exchange by a drawee must satisfy the requirements of the third para of Section 7. To become an acceptor the drawee of the bill must sign his assent upon the bill. The mere signature of the drawee on the bill, however, is sufficient acceptance of the bill. In order to signify his acceptance, the drawee very often adds words such as "accepted" and thereafter affixes his signature on the bill. But the section does not require the addition of those words in order to bind him as acceptor. His unqualified signature upon the bill signifies that he assents to the order of the drawee."
"The acceptance of the bill of exchange by the drawee need not appear on the face of the hundi. In order to fix liability upon the drawee as an acceptor Section 7 requires signature of his assent 'upon the bill'. The signature on the back of the bill is sufficient signature of assent upon the bill."
8. Mr. Bimal Chatterjee, appearing on behalf of the plaintiff submitted that mere signature of the drawee of the hoondies is enough. The drawee may have added the word 'acceptor'. Even without the said word, the signature of the drawee or the acceptor upon the bill signifies that he assents to the order of the drawer. In the instant case, even if there was no such word as 'co-acceptor', the hoondies would have been valid and enforceable in law. The acceptance may be made by more than one party. In the instant case, the Bank has put the word 'co-acceptor' above the signature of the bank. That does not invalidate the hoondies but rather confirms that the bank willingly and knowingly accepted the hoondies.
9. Mr. Bhabra on behalf of the defendant 2, Bank, submitted that the Branch Manager had no authority to accept the hoondies and the Branch Manager was holding a Power of Attorney with a limited power and the Branch Manager could only accept the hoondies with another Power of Attorney holder of the bank jointly. In the instant case, the Branch Manager had alone signed the hoondies without having any authority to accept the hoondies for and on behalf of the Bank. The acceptance of the hoondies is not made in usual Course of business of the bank. Therefore, there was no acceptance either in the eye of law or in fact.
10. Mr. Chatterjee, learned advocate appearing on behalf of the plaintiff, submitted that the plaintiff is not supposed to know what authority was given by the bank or what contained in the Power of Attorney executed by the Bank in favour of the Branch Manager arid the acceptance was done by the Bank in the usual course of the banking business. Though the plaintiff is not supposed to know the contents of the power of Attorney executed by the Bank in favour of its Manager and there is no substance in the argument of Mr. Bhabra. But it appears from the Power of Attorney, which was disclosed by the Bank with the affidavit-in-reply of the Bank, that the Branch Manager was authorised to do amongst others the following acts :
"(d) To make, draw, sign or endorse, purchase, sell, discount or accept cheques, drafts, hoondies, bills of exchange and other negotiable instruments in the name and on behalf of the said Bank."
11. Mr. Chatterjee, on behalf of the plaintiff, submitted that from the Power of Attorney it is clear that the Branch Manager was empowered to accept the hoondies in the name and on behalf of the Bank. Whether one power-of-attorney-holder would accept or two power-of-attorney-holders would accept the hoondies, that is a matter which is known between the Bank and the Bank's power of attorney holder. The fact remains that the power-of-attorney-holder executed the hoondies as an agent of the Bank and the plaintiff accepted the same in good faith and bona fide. Mr. Chatterjee relied upon the reported decision in and submitted that the drawee can accept a bill through his agent. Therefore, a mere signature of the drawee or his authorised agent will be enough to mean that the signature itself is the acceptance of the hoondies.
12. Mr. Bhabra referred to para 3 of the plaint and submitted that the defendant 2, Bank, is described in the plaint as an acceptor of the said three hoondies. But in fact from the hoondies it appears that the defendant 2 is not the acceptor. Mr. Chatterjee submitted that it has been rightly contended in the plaint that the defendant 2 is the acceptor and that the defendant 2, Bank had accepted the hoondies through its Manager and the constituted Attorney.
13. Mr. Bhabra, appearing on behalf of the defendant 2, Bank, submitted that the suit is not maintainable under Order 37 of the Civil P. C. Mr. Bhabra referred to paras 11, 12 and 13 of the plaint, wherein the plaintiff had made an alternative case. The said paragraphs are set out hereinbelow :
"(11) In the alternative, the plaintiff states that the plaintiff lawfully lent and advanced the aforesaid amount to the defendant 1 not intending to do so gratuitously. The defendant 1 has received the benefit thereof and is thus bound and liable to pay compensation therefor to the plaintiff. After giving credit for the said sum of Rs. 6,25,000/-the plaintiff reasonably assesses such compensation at Rs. 32,34,740.46 p.
(12) The plaintiff further states and demands in the further alternative that the plaintiff is entitled to and claims the said sum of Rs. 32,34,740.46 p. as money had and received by the defendant 1 from the plaintiff.
(13) The plaintiff still further states, contends and submits that the defendant 2 by accepting each of the said bills of exchange and/or impliedly guaranteed and/or promises and/or undertook to make due payment to the plaintiff of the amounts mentioned in the said hoondies together with interest as aforesaid. The said defendant is liable to the plaintiff as a principal debtor and/or as a guarantor".
14. Mr. Bhabra further submitted that by the averments in paras 11, 12 and 13, the plaintiffs have made out the case on the original consideration and not upon the hoondies and as such the suit is not maintainable under Order 37 of the Civil P. C.
15. Mr. Bimal Chatterjee, on behalf of the plaintiff, submitted that by merely meeting the original consideration, the suit does not go outside the ambit of Order 37 of the Civil P. C. In the plaint it is specifically averred to the effect that the suit is filed under Order 37 of the Civil P. C. and no relief which does not fall within the ambit of Order 37 of the Code has been claimed in the plaint and all the requirements of the provisions of Order 37, Rule 2 of the Code has been complied with and as such it is maintainable under Order 37 of the Civil P. C.
16. Mr. Bhabra referred to the provisions of Section 80 of the Negotiable Instruments Act, which are set out hereinbelow :
"When no rate of interest is specified in the instrument, interest on the amount due thereon shall, notwithstanding any agreement relating to interest between any parties to the instrument, be calculated at the rate of six per cent per annum from the date at which the same ought to have been paid by the party charged until tender or realization of the amount due thereon, or until such date after the institution of a suit to recover such amount as the court directs."
17. Mr. Bhabra submitted that in the hoondies no rate of interest is specified and the plaintiffs cannot claim interest more than 6% per annum and such interest is only payable from the time the defendant received the notice of dishonour. In the instant case, the plaintiffs have claimed interest at the rate of 18.5 per cent per annum. Mr. Bhabra relied upon the decision reported in AIR 1922 Cal 513, (Kedar Buksh v. Shaik Serajuddin) Mr. Bimal Chatterjee, learned advocate on behalf of the plaintiffs, fairly conceded that the plaintiff cannot claim interest more than 6 per cent per annum as it is clear from the hoondies that no rate of interest is specified therein.
18. Mr. Bhabra relied upon the decision
(Harprasad & Co. Ltd. v. Allahabad Bank) and submitted that if the defence is substantial, that is, with good chances of success or is bona fide, raising question of law or fact requiring thorough scrutiny, an unconditional leave must be granted, Mr. Bhabra further submitted that this is a fit case where leave should be granted as various questions of law are involved and those things are to be examined at the time of the trial of the suit. Mr. Bimal Chatterjee, on behalf of the plaintiffs, relied on the same decision and relied upon the following observations made in the said decision (at p. 283) :
"An unconditional leave to defend must be given if the facts disclosed by the defendant indicate that he has a substantial defence to raise, which means that defence so raised has good chance of success or has good potentiality to dislodge the plaintiff or which is bona fide and honest one and raises such question of law or of facts which require , thorough judicial scrutiny."
19. Mr. Chatterjee on behalf of the plaintiffs submitted that the facts of the case are more or less admitted and the fact remains that the plaintiff paid a sum of Rs. 23,34,375/-by Pay Order No. 230954, dt. 1-6-83 issued by the Bank of India, Calcutta Main Branch drawn in favour of the Punjab National Bank, Account Sri Ambika Jute Mills Ltd. dt. 2nd June, 1983. So it cannot be said that the plaintiff was in collusion with the defendant 1 or defendant 2, as the plaintiff actually parted with the said amount. But it is now urged that the plaintiff was in collusion and by fraudulent means the plaintiff got the endorsement of the "co-acceptor" by the Branch Manager of the Bank. It is further submitted by Mr. Chatterjee that there was no earthly reason which can be imputed against the plaintiff against the bona fides of the plaintiff in the said transaction, as it would be too much to say that the plaintiff parted with such a big amount to obtain the acceptance of the Bank and to launch itself into this litigation. There is no dispute which got to be tried in the suit and it is a fit case where a judgment and decree should be passed under Order 37 of the Civil P.C. as there cannot be any allegation of fraud against the plaintiff and the plaintiff all along acted bona fide and in good faith. As a matter of fact, the plaintiff is being defrauded by the act of the defendants Nos. 1 and 2. Mr. Chatterjee further submitted that while accepting the hoondies, the Branch Manager has given his secret Code No. which is "2007". The secret Code No. is only known to the Bank and its officers and nobody else. Such code number is given so that the different branches of the said Bank could trace out the person who has signed and/or executed for and on behali of the Bank and the said secret code number implies that the person who had signed with the said code number was authorised to execute the document for and on behalf the defendant 2, Bank. Mr. Bhabra, upon taking instruction from an officer of the bank, who was present in the Court, submitted that the officers who are authorised to execute documents for or on behalf of the bank have got a code number for the purpose of their identification by all the branches of the bank throughout the country and abroad and the Branch Manager has given the correct code number.
20. Mr. Bimal Chatterjee has submitted that in the instant case the defendant 2's application praying for unconditional leave to defend the suit should be rejected in limine. Same has been filed beyond the period prescribed under the Civil P.C. Mr. Chatterjee submitted that the writ of summons was served upon the defendant 2 on 17th Dec., 1987. The defendant No. 2 entered appearance through Mr. M. Rule Singla, Advocate on 23rd Dec., 1987. The summons for final judgment was served on the defendant 2 on 12th April, 1988 and the Masters' summons dated 21st Sept., 1988 provides as follows :
"Let all parties concerned stand before the Hon'ble Judge in chambers taking interlocutory business on Tuesday, the 26th April, 1988 at the hour of 10.30 O'clock in the forenoon or so soon thereafter on the hearing of an application of the defendant No. 2 for an order, etc....."
21. Mr. Chatterjee referred to the provisions of Order 37, Rule 3(5) of the Civil P.C. which are as follows :
"The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just."
22. The application for leave was not presented within 22nd April, 1988 but was filed on 26th April, 1988. The endorsement of the Master dt. 21st April, 1988 is not tantamount to filing the application before the Court and the period of 10 days had expired with 22nd April, 1988. As such, the application should be dismissed only on that score alone apart from the merits of this case. Mr. Bhabra on behalf of the defendant 2 submitted that the affidavit was sworn on 21st April and the endorsement of the Master in the application i.e. the Masters' summons should be considered to be the date of filing the application before the Court.
23. I have carefully considered the matter and though the application was not filed before the Court before 26th April, 1988, the fact remains that the application was placed before the Master on 21st April, 1988 and if the defendant 2 is misled, then he was misled due to the endorsement of the Master. In these matters, the Court should not be so technical. This is a case of contributory mistake as the learned Advocate for the defendant 2 should have filed the application in Court before 22nd April, 1988. It was also the duty of the Master, an officer of the Court, to point out to the litigant that the application should be filed before the Court. I hold that for the purpose of presenting the application in Court the date should be taken as 21st April, 1988, i.e. the application was placed before the Master and as such the application filed by the defendant 2 for unconditional leave to defend the suit was within the time prescribed under Order 37 of the Civil P.C.
24. Mr. Bhabra referred to the provisions of Section 446 of the Companies Act and submitted that the present suit was filed on 7th May, 1986 though an order was passed by the Company Court for the liquidation of the defendant 1 on 27th Mar., 1985 and as such the suit is not maintainable at law.
25. Mr. Chatterjee on behalf of the plaintiff, submitted that leave can be obtained even after the filing of the suit. Assuming the suit is not maintainable at law against the defendant 1, that does not debar the plaintiff to file the suit against the defendant 2 alone. The plaintiff is praying for a final judgment and decree in favour of the plaintiff against the defendant 2 for a sum of Rs. 32,74,724.46 p. less a sum of Rs. 1,50,000/- paid by the defendant after the institution of the suit and for other reliefs. In their application the plaintiffs have not prayed for any relief against the defendant 1. I hold that the suit is maintainable against the defendant 2. I further hold that, the defendant 2, Bank through its Agent and Manager accepted the hoondies in suit and the said hoondies are valid and enforceable in law. The plaintiff cannot claim interest more than 6% per annum. The plaintiff has claimed in the suit a sum of Rs. 13,59,740.46 p. by way of interest at the rate of 18.5 per cent per annum calculated till 30th April, 1986 but in view of my findings the plaintiff would be entitled to interest at the rate of 6% per annum amounting to Rs. 4,00,000/- up to 30th April, 1988. The plaintiff has already received Rs. 6,25,000/- before filing of the suit and the defendant 1 has paid a sum of Rs. 1,50,000/-after the filing of the suit.
26. So, after deduction of the said two amounts, the plaintiff would be entitled to a final judgment and order for a sum of Rs. 17,25,000/- on account of principal amount and the interest at the rate of 6% per annum up to 30th April, 1986 amounting to Rs. 4,00,000/- and interim interest from 30th April, 1986 till the date of decree at the rate of 6% per annum over the principal amount of Rs. 17,25,000/- amounting to Rs. 2,45,812.50 p. that is for a total sum of Rs. 23,70,812.50 p. The decree will carry interest at the rate of 6% per annum against the defendant 2, Bank. The plaintiff is given liberty to appropriate the sum of Rs. 1,50,000/-paid by the defendant 1 after the institution of the suit. The plaintiff would be entitled to a decree for Rs. 15,000/- on account of cost of Court-fees against the defendant 2. The application of the defendant 2 praying for unconditional leave to defend the Suit is rejected and the plaintiff's application for summary judgment against the defendant No. 2 is allowed.