CASE NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICATION
SUIT NO 136 OF 2005
ANDHRA BANK
PLAINTIFF
VERSUS
1) MS. SAFIYA RAIFQ SHAIK
2) ICICI BANK LIMITED DEFENDANT

FACT
1) The Plaintiff are a body corporate constituted under the banking companies
[Acquisition & Transfer of undertaking] Act, 1980, head office at Dr. Pattabhi Bhawan,
Saifabad, Hyderabad.

2) Defendant No. 2 (ICICI Bank Limited) is a company incorporated under The

Company Act, 1956 and carrying out banking business having Branch office at
Aundh, Pune, Maharashtra.

3) The present suit is filed for recovery of Rs. 2,20,000/- together with interest on
account of fraudulent encashment by Defendant No.1 (Ms. Safiya Rafiq Shaikh) of a
forged fraudulent Demand Draft No. 291530 dated 15 th July, 2003 purportedly issued
by the Plaintiff and was collected by Defendant No. 2 Bank for Defendant No.1
negligently without good faith.

4) Defendant No.2 through its Ghatkopar Branch presented Demand Draft No. 291530
dated 15th July, 2003 of Rs. 2,20,000/- on the Plaintiff service centre Mumbai in
clearing for payment on 19th July, 2003. The Demand Draft was issued in the name of
Ms. Safiya Rafiq Shaikh, Defendant No.1 and was apparently purported to be issued
by the Central account department.

5) During the regular reconciliation on 4th August, 2003, it was found that the Demand
Draft was not issued by the Plaintiff Bank and it was forged. Immediately on 4th
August, 2003, Plaintiff informed the Defendant No. 2 about the fraudulent
encashment and requested them to withhold the payment available in the account of
their account holder for whom they had collected the instrument in clearing.

6) By letter dated 13th August, 2003, the Plaintiff requested the Defendant No. 2 to
furnish certain information regarding Defendant No. 1 which included (i) Copy of
statement of account of opening f account till date. (ii) Copy of introduction form and

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 account opening form of the Defendant No. 1. (iii) Detailed copy of document
establishing the introducers as the holder of the account holder of the ICICI bank.
(iv ) How long the introducer was operating the account with the Defendant No. 2
bank.
7) By letter dated 25th August, 2003 the Plaintiff filed Police complaint with MRA Police
Station regarding the Demand Draft No. 291530 dated 15 th July, 2003 for Rs.
2,20,000/- and requested the police to investigate into the matter.

8) Thereafter, by their various letters dated 26 th August, 2003 and 29th August, 2003 the
plaintiff again requested the Defendant No. 2 to provide necessary information
regarding the opening an operation of the Defendant No. 1 account by letter dated
27th August, 2003, the Defendant No. 2 furnished certain incomplete and vague
information.

9) By letter dated 1st September, 2003, the Defendant No. 2 forwarded a copy of
statement of account which interalia indicate that the said account was opened on
15th July, 2003, and was operative for a short span of 8 days till 23 rd July, 2003.
Except fraudulent encashment of the said Demand Draft and withdrawal of the
account there was no major transactions in this account. There was negligence in the
part of Defendant No. 2 in encashing and permitting the withdrawal of the huge
amount in newly opened account.

10) On 18th May, 2004 requested the Defendant No. 2 to remit the payment of the fake
Demand Draft which got cleared by them. On 18 th May, 2004 the Defendant No. 2
recorded that they were investigating the Account. By subsequent dated 8 th June,
2004 the Plaintiff requested the Defendant No. 2 to inform about the outcome of the
investigation.

11) On 30th September, 2004 the Defendant first time falsely contended that the Account
of the Defendant No. 1 was properly opened and the said Demand Draft was
presented in according with the Bank Norms.

12) The Plaintiff, therefore through their advocates letter dated 28 th July, 2004 while
recording some of the aforesaid facts regarding fraudulent enactment of the alleged
Demand Draft called upon the Defendant No. 2 to pay the said sum of Rs. 2,20,000/-
with interest at the rate of 8 per cent per annum within seven days of the receipt the
said letter.

13) By their Advocates letter dated 12th August, 2004, Defendant No. 2 falsely contented
that the said Demand Draft was cleared in usual and ordinary course and the
Defendant No. 2 was not responsible for any loss caused to the Plaintiff.

14) Thereafter, by their Advocates letter dated 16th October, 2004 addressed to the
Defendants, the Plaintiff again called upon both the Defendants to pay the said sum
of Rs. 2,20,000/- together with interest at the rate of 8% per annum from the date of

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 encashment till payment and/or realisation. By their Advocates letter dated 7 th
November, 2004, the Defendant No. 2 has raised certain issues which was untenable
in law. The plaintiff crave leave to refer to and rely upon the said letter dated 7 th
November, 2004, when produced.
15) In the circumstances, the plaintiff submit that the alleged Demand Draft was not
issued by the Hyderabad Central Accounts Department, Head Office of the Plaintiff.
The alleged demand draft is not signed by Mr. M. V. Raman Murthy and C. Vani as
alleged in the said Demand Draft. The Defendant No. 1 has forged and fabricated the
said Demand Draft by putting the date, amount and subscribing the forged signature
of the officers of the Plaintiff. The Plaintiff Bank have not received any consideration
in regard to the issuance of the alleged Demand Draft and the same is forged,
fabricated, and null and void. The signatures on the Demand Draft has been
fraudulently made and they are not the signature of the officers whose signatures
they purported to be.

16) The Plaintiff further submit that the Defendant No. 2 by their negligence facilitated the
encashment of the forged Demand Draft. The Defendant No. 2 suppressed material
facts regarding the opening and operation of the account of the Defendant No. 1. It
appears that the said account is not properly introduced and opened in accordance
with the Banking Norms. The Defendant No. 2 has suppressed vital and material
information as to who had introduced the account of the Defendant No. 2 and the
better particulars of the account holder and introducer. Defendant No. 2 was also
negligent in overlooking and permitting the huge withdrawal of the amount from credit
generated through the clearance of the alleged Demand Draft in a newly opened
account. Should the Defendant No. 2 was vigilant is opening and operating the
account the above fraud would have been averted. The alleged Demand Draft was
shortly put into the account after its opening and withdrawals were permitted without
taking proper care. Defendant No. 2 without verifying the credential of new customer
sent alleged Demand Draft of huge amount for clearance on the day of opening the
account and permitted the withdrawal within a span of seven days. It is evident that
the opening and operation of the said account within the control of the Defendant No.
2 was an integral part of fraud committed upon the Plaintiff. Due to lack of good faith
and due to negligence the Defendant No. 2 are not entitled for any protection under
Section 131 of the Negotiable Instruments Act.

17) The Plaintiff submit that by virtue of fraudulent device adopted by the Defendants
they have caused the wrongful loss to the Plaintiff and illegal gain to themselves. The
Defendants have received the benefits under the alleged forged Demand Draft. On
equitable principle of restitution and prevention of unjust enrichment also the
Defendants are bound and liable to restore to the Plaintiff the amount received by
them under the said Demand Draft. The Plaintiff are therefore entitled to recover from
the Defendants a sum of Rs. 2,20,000/- received by them on the basis of forged and
fabricated Demand Draft together with interest at the rate of 8% per annum from 19 th
July, 2003, till payment and or realization.

18) In the premises the Plaintiff are entitled to recover from the Defendants a sum of Rs.
2,44,000/- as per particulars of claim, together with further interest on Rs. 2,20,000/-

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 at the rate of 8% per annum from the date of filing of the suit till payment and/or
realization.

19) The Plaintiff and the Defendant No. 2 are having office in Mumbai. The Demand Draft
was presented for clearing through the Ghatkopar Branch of Defendant No. 2 at
Mumbai. The fraudulent Demand Draft was cleared and encashed in Mumbai. The
impact of the fraud was felt in Mumbai. The amount is payable in Mumbai. The
material and substantial part of cause of action has arisen in Mumbai. However the
Defendant No. 1 is residing at Pune and Defendant No. 2 is also having branch office
at Pune and the Demand Draft was presented through Pune Branch of the Defendant
No. 2 and that part of cause of action has arisen outside the jurisdiction of this
Honble court and on leave being granted under Clause XII of Letters Patent this
Honble Court will be entitled to entertain, try and dispose of the present suit.

20) No part of the Plaintiff claim is barred by the law of limitation.

21) One, Mr. S. K. GOEL, Chief Manager of the Plaintiff Bank, who is conversant with the
facts of the case ad able to depose the same has signed and declared the Plaint.

22) For the purpose of court fee and jurisdiction the Plaintiff value their claim in the suit of
Rs. 2,44,000/- and have paid Court fees of Rs. 9,430/- accordingly.

23) The Plaintiff will rely upon the documents, a list whereof is annexed hereto.

RELIEF:

The Plaintiff therefore pray:

(a) That the Defendants be jointly and severally ordered and decreed to pay to the
Plaintiff a sum of Rs. 2,44,000/- as per particulars of claim together with interest
on Rs. 2,20,000/- at the rate of 8% per annum from the date of filing of the suit till
decree and thereafter at the same rate till payment and/or realization with costs.

Dated this 29th day of November, 2004.