Delhi District Court
Punjab National Bank vs Sh. Nagesh Kumar Nagpal on 23 August, 2023
IN THE COURT OF SH. KISHOR KUMAR, ADJ-04 (EAST),
KARKARDOOMA COURTS, DELHI.
Suit No. 300/2020 (Old no. 2318/1999)
Punjab National Bank
A Body Corporate Constituted under
The Banking Companies Ac, 1970,
Having its head office at:
7, Bhikaji Cama Place, Africa Avenue,
New Delhi and amongst others
a branch office at Rani Bagh, Delhi
...........Plaintiff
Versus
1. Sh. Nagesh Kumar Nagpal
790, Green Road,
Shakti Nagar,
Rohtak (Haryana)
2. Shri B. K. Kalra
Son ofShri R. P. Kalra
R/o House no. 21/625,
Jagdish Colony, Rohtak,
Also at-
F-5/17, Krishna Nagar,
Delhi-110051
...........Defendants
Date of Institution : 13.10.1999
Date of final arguments : 23.08.2023
Date of decision : 23.08.2023
Final decision : Dismissed
CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 1 of 35
JUDGMENT
1. The present suit for recovery of Rs. 91,04,360/- has been filed by the plaintiff bank and against the defendants on 30.09.1999 before Hon'ble Delhi High Court as at that time the pecuniary jurisdiction lied there. Subsequently in view of notification number 2718/DHC/Orgl. Dated 25.11.2015 issued U/sec 4 of the Delhi High Court (Amendment) Act 2015, the present case came down to the District Courts.
2. During pendency of the proceedings, defendant no.2 died. Vide detailed order dated 15.07.2019, the suit against defendant no.2 stood abated.
3. The allegations of the plaintiff bank against the defendants are that defendant no.1 had opened a saving fund account number 19218 on dated 08.09.1992 with plaintiff bank, Branch Rani Bagh Delhi. The different cheque books were issued to defendant no.1 from time to time. Defendant no.2 was the employee of the plaintiff bank, posted as Special Assistant at Rani Bagh Branch from 02.07.1992 to 06.03.1998.
4. It is further stated by the plaintiff bank that during routine inspection of the aforesaid Rani Bagh Branch, it was discovered on 06.03.1998 that there were large scale irregularities in several accounts of the said branch office and the saving fund account no.
CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 2 of 35 19219 in the name of defendant no.1, was one of those accounts. Both the defendants during the period November 1996 to December 1997 conspired with each other with intent to defraud the plaintiff bank by following the under mentioned modus operandi:-
(a) by giving credit through transfer voucher to the party and debiting the ODD account of the plaintiff bank without any supporting documents viz cheque, draft etc.,
(b) by giving credit, without instrument on the basis of mere clearing voucher and debiting the amount therein to the imprest clearing account of the plaintiff bank; and
(c) by destroying the chques issued by the account holders received by the plaintiff bank in inward clearing and debited the cheque amount to clearing imprest account of the plaintiff bank instead of debiting the same to the account of the party thereby not affecting the balance of the account of the account holder on which the cheques were drawn.
5. It is further stated that on 02.11.1996, the defendant no.1 in connivance with defendant no.2 got two credit clearing vouchers of Rs. 2,55,000/- and Rs. 2,60,000/- prepared without any supporting instrument and got the said amounts credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. It is further stated that on 05.11.1996, the defendant no. 1 through cheques bearing Nos. 966043 and 966044 both dated 05.11.1996 withdrew in cash sums CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 3 of 35 of Rs. 2,00,000/- and Rs. 1,10,000/- respectively. It is further stated that on 07.11.1996, the defendant no. 1 through cheque bearing no. 966045 and 966046 both dated 06.11.1996 withdrew in cash of a sum of Rs. 1,00,000/- and Rs, 1,00,000/-. It is further stated that on 15.11.1996, the defendant no. 1 in connivance with defendant no. 2 got a credit clearing voucher of Rs. 1,25,352/- prepared without any supporting instrument and got the said amount credit in saving fund account no. 19218 of the defendant no. 1 to the debit of interest clearing account of the plaintiff bank. It is further stated that on 16.11.1996, the defendant no. 1 through cheque bearing no. 966048 dated 16.11.1996 withdrew in cash sum of Rs. 1,30,000/-. It is further stated that on 02.12.1996, the defendant no. 1 in connivance with defendant no. 2 got a credit clearing voucher of Rs. 1,65,000/- prepared without any supporting instrument and got the said amount credit in the saving fund account no. 19218 of the defendant no. 1 to the debit of interest clearing account of the plaintiff bank.
6. It is further stated that on 03.12.1996, the defendant no.1 in connivance of defendant no.2 got a sum of Rs. 1,05,000/- transferred to current account no. 3637 of M/s Monga Enterprises. Again on 03.12.1996, the defendant no.1 issued a cheque no. 700004 dated 10.11.1996 for Rs. 60,00,000/- in favor of one M/s Golden New India Private Limited against the aforesaid credit and the said cheque was duly paid by plaintiff bank in clearing. It is further stated that on 24.02.1997, the defendant no.1 in connivance CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 4 of 35 with defendant no.2 got a credit clearing voucher of Rs. 1,17,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. On 26.02.1997, the defendant no.1 withdrew a sum of Rs. 1,17,000/- through withdrawal form from the saving fund account no. 19218. On 04.04.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing voucher of Rs. 2,37,300/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank.
7. It is further that on 05.04.1997, the defendant no.1 through cheque bearing no. 966049 dated 05.04.1996 withdrew in cash a sum of Rs. 1,37,000/- and again on 05.04.1997, the defendant no.1 issued a cheque no. 966050 dated 05.04.1997 for Rs. 30 lakh in favor of the Ram Kumar Sharma against the aforesaid credit and the said cheque was duly paid by the plaintiff bank in clearing. On 10.04.1997, the defendant no.1 through cheque bearing no. 966051 dated 10.04.1997 withdrew in cash sum of Rs. 71,000/-. On 10.04.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing voucher of Rs. 1,87,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. It is further stated CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 5 of 35 that on 12.04.1997, the defendant no.1 in connivance of defendant no.2 got a sum of Rs. 1,85,000/- transferred to S.F. account no. 23872 of Sh. R K Singla and Anita Rani.
8. It is further stated that on 21.04.1997, the defendant no.1 in connivance with defendant no.2 got two credit clearing vouchers of Rs. 3,17,000/- and Rs. 1,34,500/- prepared without any supporting instrument and got the said amounts credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. The defendant no.1 issued the cheque no. 966052 dated 22.04.1997 for Rs. 60,000/- in the name of Sudhir Kumar Kalra and in connivance with defendant no.2 got the said amount transferred in the S F Account no. 19099 of one Sudhir Kumar Kalra. On 23.04.1997, the defendant no.1 through cheques bearing nos. 966053 and 966054 both dated 22.04.1997 withdrew in cash sums of Rs. 2,45,000/- and Rs. 1,45,000/- respectively. On 18.06.1997, the defendant no.1 in connivance with defendant no.2 got a credit voucher of Rs. 99,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of suspense CDPC account of the plaintiff bank.
9. It is further stated that on 18.06.1997, the defendant no.1 through cheque bearing no. 966057 dated 18.06.1997 withdrew in cash sum of Rs. 99,000/- from the aforesaid current account no.
CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 6 of 35 19218. On 19.06.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing vouchers of Rs. 1,35,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing of the plaintiff bank. On 20.06.1997, the defendant no.1 in connivance of defendant no.2 got a sum of Rs. 50,000/- transferred to current account no. 2003 of M/s Garima Enterprises. It is further stated that on 20.06.1997, the defendant no.1 in connivance of defendant no.2 got a sum of Rs. 50,000/- transferred to current account no. 3827 of M/s Sugam Investments. On 21.06.1997, the defendant no.1 withdrew a sum of Rs. 35,000/- from S F account no. 19218 vide a withdrawal form.
10. It is further stated that on 30.07.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing voucher of Rs. 2,35,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. On 06.08.1997, the defendant no.1 through cheque bearing no. 966058 dated 06.08.1997 withdrew in cash sum of Rs. 1,06,000/- and on 09.08.1997, the defendant no.1 through cheque bearing no. 966059 dated 09.08.1997 withdrew in cash sum of Rs. 1,29,000/-.
11. It is further stated that on 21.08.1997, the defendant no.1 in CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 7 of 35 connivance with defendant no.2 got a credit clearing voucher of Rs. 2,50,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account. On 30.08.1997, the defendant no.1 through withdrawal form dated 30.08.1997 withdrew in cash sum of Rs. 2,50,000/-. It is further stated that on 06.09.1997, the defendant no.1 in connivance with defendant no.2 got three cheques bearing no. 573761, 573762 and 573763 for Rs. 1,70,000/-, Rs, 75,000/- and Rs. 75,000/- respectively issued be defendant no.1 destroyed when the said cheques were received by the plaintiff bank in inward clearing from Canara Bank, Connaught Place, New Delhi and got the said cheques amounts debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
12. It is further stated that on 26.09.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing voucher of Rs. 2,50,000/- prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account and further on 29.09.1997, the defendant no.2 in connivance with defendant no.1 got debited Rs. 99,900/- and Rs. 1,48,468/- to the said saving fund account and credited the said amount to the ODD account of the plaintiff bank. It is further stated that on 04.10.1997, the defendant no.1 in connivance with defendant no.2 got two cheques CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 8 of 35 bearing no. 573767 and 573768 for Rs. 1,00,000/- each issued be defendant no.1 destroyed when the said cheques were received by the plaintiff bank in inward clearing from Bank of America, New Delhi and got the said cheques amounts debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
13. It is further stated that on 31.10.1997, the defendant no.1 in connivance with defendant no.2 got a credit clearing voucher of Rs. 5 lakh prepared without any supporting instrument and got the said amount credited in the saving fund account no. 19218 of the defendant no.1 to the debit of imprest clearing account of the plaintiff bank. It is further stated that on 01.11.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 573769for Rs. 2,50,000/- issued be defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1. On 05.11.1997, the defendant no.1 issued a cheque no. 5551155 dated 03.11.1997 for Rs. 85,000/- in favor of one M/s Vinay Harsih & Company and the said cheque was duly paid by plaintiff bank in clearing and again on 07.11.1997, the defendant no.1 withdrew in cash sum of Rs. 35,000/- through withdrawal for dated 06.11.1997. Again on CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 9 of 35 15.11.1997, the defendant no.1 in connivance with defendant no.2 got two cash orders no. 1428/97, and 1483/97 for Rs. 1,50,000 and Rs. 2 lakh issued to an in favor of M/s Sumangal & Company.
14. It is further stated that on 28.11.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582383 for Rs. 2,50,000/- issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1. On 29.11.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582385 for Rs. 3 lakh issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
15. It is further stated that on 29.11.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582386 for Rs. 50,000/- issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 10 of 35 debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
16. It is further stated that on 01.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582387 for Rs. 1 lakh issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Punjab National Bank, Est Patel Nagar, Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1. On 04.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582388 for Rs. 2,50,000/- issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
17. It is further stated that on 05.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582389 for Rs. 1,80,000/- issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 11 of 35 amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1. On 09.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 582390 for Rs. 3 lakh issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Connaught Place, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
18. It is further stated that on 12.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 573771 for Rs. 3 lakh issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1. On 20.12.1997, the defendant no.1 in connivance with defendant no.2 got a cheque bearing no. 573772 for Rs. 3 lakh issued by defendant no.1 destroyed when the said cheque was received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 12 of 35 defendant no.1 and thus not affecting the account of the defendant no.1. On 27.12.1997, the defendant no.1 in connivance with defendant no.2 got two cheques bearing no. 582391 and 582392 for Rs. 1,50,000/- each issued by defendant no.1 destroyed when the said cheques were received by the plaintiff bank in inward clearing from Canara Bank, Asaf Ali, New Delhi and got the said cheque amount debited to the imprest account of the plaintiff bank instead of debiting the same to the account of the defendant no.1 and thus not affecting the account of the defendant no.1.
19. It is further stated that in the aforesaid manner during the period of November, 1996 to December, 1997 the defendant no.1 in connivance with defendant no.2 got credited total sum of Rs. 63,67,152/- in saving fund account no. 19218 on different dates as stated above in the foregoing paras and the said sum of Rs. 63,67,152/- was withdrawn by the defendant no.1 from time to time as stated above thereby the defendants duped the plaintiff bank and caused wrongful gain of the said amount to themselves, which they utilised for their own gain and advantage and thus the defendants are jointly and severally liable to refund the aforesaid amount (ill-gotten gains) to the plaintiff bank along with interest thereon and other charges. It is stated that the relevant times the defendant no.2 being posted at Branch office Rani Bagh, Delhi of the plaintiff bank had an access to the account books, documents and other materials of the plaintiff bank and as such inter alia in respect of items describe in paras no, 28, 30, 34, 35, 36, 37, 38, 39, CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 13 of 35 40, 41, 42 and 43 the defendant no.2 in connivance with other defendants managed to remove and destroy some of the records. However from the lists of the clearing house, the plaintiff bank has been able to discover/detect that the cheques in question pertained to an were from the cheque books issued to the defendant no.2 in respect of the account saving fund account no. 19218. The defendant no.2 unauthorisedly credited the aforesaid imprest account by debiting head office account or erstwhile New Bank of India which was a frozen account and could not be operated without specific authority in writing from the Head office of the plaintiff bank so that the fraud could not be detected.
20. It is further stated that in this manner, the defendants have manipulated and siphoned off a sum of Rs. 63,67,152/- illegally and unauthorisedly from the aforesaid accounts and as such the defendants have made wrongful gain to themselves which the plaintiff bank is entitled to recover and the defendants are liable to pay jointly and severally to the plaintiff bank along with interest thereon. The plaintiff bank is entitled to recover the above amount from the defendants along with interest chargeable for clean advances which at present is 16.32 (inclusive of interest tax) per cent per annum with quarterly rests. It is further stated that the plaintiff bank has made several efforts to recover the aforesaid amount from the defendants and when all the endeavors of the plaintiff bank failed to bring around the defendants to clear the dues, the plaintiff bank served a legal notices dated 10.02.1999 CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 14 of 35 upon the defendants through its counsel Shri O P Faizi, Advocate by means of registered post acknowledgement due and copy thereof mailed to them under certificate of posting thereby calling upon each of them to pay a sum of Rs. 82,07,060/- which included interests upto 31.01.1999 to the plaintiff bank but despite that the defendants have failed to make the payments to the plaintiff bank. Hence, the present suit.
21. Summons for settlement of issues were issued to both the defendants.
22. Defendant no.1 in his written statement has stated that the suit is not maintainable in the present form as none of the transactions alleged by plaintiff bank, has ever been entered into between defendant no.1. The plaintiff has not come before this Court with clean hands and has suppressed various important relevant facts with a view to abuse the process of law as well as to defraud the answering defendant. Therefore, the plaintiff is not entitled to any relief and as such the suit of the plaintiff is liable to be dismissed with exemplary costs. The plaintiff has also not filed various documents which are in power and possession of the plaintiff who has failed to produce the same before this Court despite notice U/o 12 rule 8 CPC as well as direction by this Court on the application of the answering defendant U/o 11 rule 12 and 14 CPC. The answering defendant reserves his right to file additional written statement in case the required documents as CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 15 of 35 demanded are filed and placed on record by the plaintiff.
23. It is stated that the present suit has been filed on the false, frivolous and vexatious allegations which are subject matter of criminal proceedings and the criminal Court has not yet held that the replying defendant was in any way connected with the aforesaid alleged fraud. Moreover, the present suit against the replying defendant alleged to be on account of fraud a FIR no. 144/98 under Section 406/409/420/468/471/477-A/120-B IPC has been lodge on 06.03.1998 against the defendant, hence, the suit is not maintainable under law.
24. The proceedings in the criminal Court are still pending and yet not decided against the answering defendant nor any charge has been framed against the answering defendant, therefore, the plaintiff has no cause of action to sue the defendant.
25. It is further stated that the present suit filed is pre-mature and cannot be proceeded further in view of the above submissions. Even otherwise since the criminal proceedings are pending and the matter is in issue is also directly and substantially issue in a previously instituter criminal proceeding between the same parties. As submitted hereinabove, the criminal case and also the present civil proceeding are based upon identical set of facts and there being no iota of difference, distinction, which is usually drawn between the criminal proceedings as well as the civil proceeding, CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 16 of 35 therefore, the present suit is liable to be stated U/sec 10 CPC. It is further submitted that the Hon'ble Supreme Court has laid down the principal of law in the light of above submissions and averments and various cases and it has been repeatedly held that if the case is of a grave nature or involves question of facts or law which are not simple it would be advisable to stay the proceedings of present nature so that the defence of the answering defendant being employee in the criminal case may not be prejudiced. In the present case the earlier criminal proceedings and the civil proceedings are grounded upon the same set of facts which could be evident from the pleadings. It is further submitted that the allegations against the answering defendant are not only grave but also discloses complicated question of law and fact. In the light of the above stated circumstances of the case the rule of advisability, desirability or propriety give rise to only one conclusion that the present civil case be stayed pending the criminal proceedings. This will not be against the interest of the plaintiff rather if will be great of prejudice and question of frustration for the answering defendant to disclose the defence in the present case. It would be unjust, unfair and rather oppressive for the answering defendant to allow the present proceedings to continue in the fashion as alleged by the plaintiff.
26. Moreover, the very basis of the present case is based upon a transaction between the plaintiff and the other defendant who is the customer of the Bank, therefore, there is no privity of contract CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 17 of 35 between the plaintiff and the answering defendant regarding such transactions. It is further submitted that the alleged transactions are particular in nature and pertains to particular account belonging to other defendant. Further, the plaintiff has admitted in the plaint that the amount sought to be recovered being outstanding against the other defendant, hence, there cannot be said to be a cause of action for the plaintiff to sue the answering defendant on that account and therefore the plaint is liable to be rejected under Order 7 rule 11 CPC for not disclosing clear right to sue against the answering defendant.
27. It is further stated that the present suit is also barred U/o 2 rule 2 CPC as the plaintiff bank has not included whole of so called claim in respect of the same cause of action in the present suit. In fact in order to harass the replying defendant the plaintiff has filed various suits in different Courts including Hon'ble High Court of Delhi. It is pertinent to mention here that in all the previous instituted suits the plaintiff has sought the recovery of particular amount against the answering defendants and other defendants on the same set of allegations as mentioned in the present plaint and on the basis of the same cause of action i.e inspection dated 06.03.1998 as the detail of which is already on record. Hence, the present suit is thus not maintainable under law. The suit filed by the plaintiff is liable to be dismissed U/o 7 rule 11 CPC as the plaintiff has no cause of action against the replying defendant as the replying respondent is not liable to pay any amount to the bank for CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 18 of 35 omission and commission and negligence on the part of the bank and other employee of the plaintiff.
28. It is further stated that the suit of the plaintiff is also not maintainable and is barred under law as the plaintiff has not filed the original and relevant documents as demanded by the answering defendant as well as direction by this Court on records, the production and discovery of which are necessary for the disposal of the dispute and controversy between the parties and hence the plaintiff is not entitled for any relief. It is further stated that the suit of the plaintiff is also barred by limitation and thus liable to be dismissed on this short score. The suit of the plaintiff and also not maintainable and is bad under law as the same has not been filed by duly authorised and competent person who is not at all empowered to sign, verify and institute the present suit.
29. On merits defendant no.1 has denied the contents of the plaint as incorrect and to put the plaintiff to strict proof of each and every allegation made in different paragraphs of the plaint.
30. Defendant no.1 further stated that he never received any legal notice dated 10.02.1999 from the plaintiff bank.
31. Written statement has also been filed by and on behalf of defendant no.2. However since the proceedings against defendant no.2 stand abated, there is no reason to discuss the defence taken CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 19 of 35 by defendant no.2 in his written statement.
32. Replications have been filed to the written statements of both the defendants by the plaintiff wherein it has denied the submissions of the defendants as contained in the written statements and has reaffirmed and reiterated the contents of the plaint.
33. On the basis of the pleadings of the parties, following issues were framed for trial on dated 06.11.2006:-
1. Whether this Court has pecuniary jurisdiction to entertain the suit? OPP.
2. Whether the suit is bad for suppression of material facts? OPD.
3. Whether the suit is barred under Order 2 rule 2 of the Code of Civil Procedure? OPD.
4. Whether the suit is barred by limitation? OPD.
5. Whether the suit is bad for non joinder of necessary parties? OPD.
6. Whether the suit discloses no cause of action? OPD.
7. Whether there is no privity of contract between the plaintiff and defendant no.2 B K Kalra, regarding transaction in dispute in respect of the account in question? OPD.
8. Whether the suit has been filed by a duly authorised person? OPP.
9. Whether the plaintiff is entitled to the suit amount? if so, to CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 20 of 35 what amount? OPP.
10. Relief.
34. The plaintiff bank in order to prove its case has examined Sh. B M Aggarwal, Retired Manager of the plaintiff bank as PW1 through his affidavit in evidence Ex.PW1/A. PW1 has retired in December 2000. He was posted as Manager at Rani Bagh Branch of the plaintiff bank. He has relied on the following documents:-
(1) Ex. PW1/1 - Power of attorney (objected to being the photocopy) (2) Ex. PW1/2 - Documents from page no. 24 to 33, certified under the Banker's Books Evidence Act.
35. PW1 has been cross examined by Ld counsel for both the defendants.
36. PW2 Sh. J B Gupta, Chief Manager, has deposed in his affidavit in evidence Ex.PW2/A that he was posted at Rani Bagh Branch of the plaintiff bank from December 1997 to December 2000 and was associated with the inspection and investigation of the fraud committed by the defendants in connivance with each other. PW2 has relied on the documents from Ex.PW2/1 to Ex.PW2/55 (except Ex.PW2/41 and Ex.PW2/46 which documents not filed).
CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 21 of 35
37. Ld counsel for the defendants have objected to the mode of proof of the documents Ex.PW2/1 to Ex.PW2/55 being the photocopies and the said objection has been kept open to be decided at the relevant time.
38. This Court is of the opinion that this witness PW2 Sh. J B Gupta is the most crucial and material witness who had been the part of the fraud and investigation team but the testimony of PW2 cannot be read for any purpose as his cross examination had remained pending since 07.04.2015 but thereafter he never appeared before the Court for completion of his testimony as he was stated to have retired from the services of the plaintiff bank. No efforts were made by the plaintiff bank to produce PW2 since after his retirement for completion of this testimony.
39. PW3 Sh. A K Gaur, Manager, National Clearing Cell RBI had brought the summoned record as follows:-
(1) Ex.PW3/1- Browsing sheets in respect of cheque no. 573761 presenting by Canara Bank Connaught circus for Rs. 1,70,000/- drawn on PNB Rani Bagh.
(2) Ex.PW3/2- Browsing sheets in respect of cheque no. 573762 presenting by Canara Bank, Connaught circus, New Delhi for Rs. 75,000/- drawn on PNB, Rani Bagh (3) Ex.PW3/3- Browsing sheets in respect of cheque no. 573763 presenting by Canara Bank, Connaught circus, New Delhi for Rs.
75,000/- drawn on PNB, Rani Bagh CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 22 of 35 (4) Ex.PW3/4- Browsing sheets in respect of cheque no. 573769 presenting by Canara Bank, Asaf Ali Road, New Delhi for Rs. 2,50,000/- drawn on PNB, Rani Bagh (5) Ex.PW3/5- Browsing sheets in respect of cheque no. 582383 presenting by Canara Bank, Asaf Ali Road, Delhi for Rs. 2,50,000/- drawn on PNB, Rani Bagh (6) Ex.PW3/6- Browsing sheets in respect of cheque no. 582385 presenting by Canara Bank, Asaf Ali Road, New Delhi for Rs. 3,00,000/- drawn on PNB, Rani Bagh (7) Ex.PW3/7- Browsing sheets in respect of cheque no. 582386 presenting by Canara Bank, Asaf Ali Road, New Delhi for Rs. 50,000/- drawn on PNB, Rani Bagh (8) Ex.PW3/8- Browsing sheets in respect of cheque no. 582387 presented by PNB, East Patel Nagar, Delhi for Rs. 1,00,000/- drawn on PNB, Rani Bagh (9) Ex.PW3/9- Browsing sheets in respect of cheque no. 582388 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs. 2,50,000/- drawn on PNB, Rani Bagh (10) Ex.PW3/10- Browsing sheets in respect of cheque no. 582389 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs. 1,80,000/- drawn on PNB, Rani Bagh (11) Ex.PW3/11- Browsing sheets in respect of cheque no. 582390 presented by Canara Bank, Connaught Circus, New Delhi for Rs. 3,00,000/- drawn on PNB, Rani Bagh (12) Ex.PW3/12- Browsing sheets in respect of cheque no. 573771 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs.
CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 23 of 35 3,00,000/- drawn on PNB, Rani Bagh (13) Ex.PW3/13- Browsing sheets in respect of cheque no. 573772 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs. 3,00,000/- drawn on PNB, Rani Bagh (14) Ex.PW3/14- Browsing sheets in respect of cheque no. 582391 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs. 1,50,000/- drawn on PNB, Rani Bagh (15) Ex.PW3/15- Browsing sheets in respect of cheque no. 582392 presented by Canara Bank, Asaf Ali Road, New Delhi for Rs. 1,50,000/- drawn on PNB, Rani Bagh
40. PW3 has been cross examined on behalf of both the defendants.
41. Defendant no.1 gave statement on dated 19.10.2015 for not leading any evidence in his defence.
42. Defendant no.2 also gave statement on dated 18.11.2014 for not leading any evidence in his defence.
43. I have heard Ld counsel for plaintiff, Ld counsel for defendant no.1 and have perused the record carefully.
44. The proceedings already stood abated vide order dated 15.07.2019.
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45. It has been argued by Ld counsel for the plaintiff that both the defendants in connivance with each other have committed fraud with the public sector bank where the public stack their money, in a calculative manner by forging the documents. The witnesses examined by the plaintiff bank have been successful in proving the fraud and cheating committed by the defendants on the basis of the documents proved on record. The plaintiff bank is, therefore, entitled to the recovery of the suit amount along with pendente lite and future interest as claimed in the plaint.
46. Per contra, it has been argued by ld counsel for defendant no.1 that the present case has been filed by the plaintiff against defendant no.1 without there being any basis. The defendant no.1 has not committed any fraud or cheating as claimed by the plaintiff bank. The witnesses of the plaintiff bank have not proved the authority in favor of PW2. The suit, therefore, deserves to be dismissed. The plaintiff witnesses have not been able to prove the case of the plaintiff bank even on remote probabilities. The testimony of PW2 cannot be read for any purpose being incomplete.
47. My issuewise findings are as under:-
Issue no. 1 -
1. Whether this Court has pecuniary jurisdiction to entertain the suit? OPP.
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48. Onus of proving this issue is on the plaintiff bank. The plaintiff bank has filed the present suit for recovery of Rs. 91,04,360/-. The present suit was filed before the Hon'ble Delhi High Court in the year September 1999. As per the scheme, the suits claiming more than Rs. 20 lakhs had to be filed before the Hon'ble High Court at that time. Therefore, the plaintiff bank has correctly filed the present suit before the Hon'ble High Court which have had the pecuniary jurisdiction that time and fixed the requisite Court fee too. Ld counsel for defendant no.1 has not argued on this issue at all. Hence, this issue is decided in favor of the plaintiff bank and against the defendants.
49. Issues no. 2, 3, 4, 5, 6 and 7 -
2. Whether the suit is bad for suppression of material facts? OPD.
3. Whether the suit is barred under Order 2 rule 2 of the Code of Civil Procedure? OPD.
4. Whether the suit is barred by limitation? OPD.
5. Whether the suit is bad for non joinder of necessary parties? OPD.
6. Whether the suit discloses no cause of action? OPD.
7. Whether there is no privity of contract between the plaintiff and defendant no.2 B K Kalra, regarding transaction in dispute in respect of the account in question? OPD.
50. All these issues are taken up together as they are CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 26 of 35 interconnected and can be decided simultaneously. Onus of proving all these issues has been placed on the defendants.
51. As a matter of record, proceeding against defendant no.2 abated as he died during pendency of the suit. On the other hand, defendant no.1 has not led any evidence to discharge the onus of proving these issues. Not only this, Ld counsel for defendant no.1 has not advanced any argument on these issues at all.
52. In the written statement defendant no.1 has not specified as to how the suit of the plaintiff bank is bad for suppression of material facts and what are those material facts which have been allegedly suppressed by the plaintiff bank from defendant no.1.
53. The defendants in their written statements have stated that the suit of the plaintiff bank is barred U/o 2 rule 2 CPC as the defendants are also facing the criminal prosecution on the same set of facts and documents, being relied upon by the plaintiff bank in the present case. Issue no.3 is a legal issue.
53. Order 2 rule 2 CPC pertain to framing of suit which states that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in disputes and to prevent further litigation concerning them.
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54. Further Order 2 rule 2 CPC mandates that -
"Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
55. The object of Order 2 rule 2 CPC is based on the principal that the defendants should not be twice vexed for one and the same cause. The rule is directed against two evils, the splitting of claims and the splitting of remedies, it provides if a plaintiff omits any portion of the claim, which he is entitled to make or any of the remedies which he is entitled to claim in respect of the cause of action for his suit, he shall not thereafter sue for the portion claimed or for the remedy so omitted.
56. After going through order 2 rule 2 CPC, the same is found to be not at all applicable to the facts of the present case. A party is always at liberty to file civil as well as criminal proceedings against the misfeasant, as permitted under the law. Filing of civil and criminal proceedings cannot be equated under the principal of Order 2 rule 2 CPC as the ultimate result of both the proceedings is entirely different from each other. The FIR against the defendants have been registered on the grounds of cheating, fraud, misrepresentation etc. and these very facts/grounds can also be the grounds for civil proceedings but on such cases the provisions of Order 2 rule 2 CPC are absolutely not applicable.
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57. Moreover, Ld counsel for defendant no.1 has not addressed argument on this issue at all.
58. The defendants have also taken objection in their written statements that the suit of the plaintiff is barred by limitation. From the facts of the case, the issue was mixed question of law and facts. Defendants have not led any evidence to discharge the onus of proving this issue.
59. The plaintiff bank has pleaded in the plaint that the illegal act of the defendants came to their notice on 06.03.1998. An FIR bearing no. 144/98 was lodged on 10.03.1998 against the defendants U/sec 406/409/420/468/471/477-A/120-B IPC. The present suit has been filed before the Hon'ble Delhi High Court in September 1999. The limitation for filing suit for money recovery is three years. Hence, the present suit is found to be instituted well within the period of limitation from 06.03.1998.
60. Coming to the issue whether the suit is bad for non joinder of necessary parties, again in discharge of proving this issue, no evidence has been led by the defendants. Apart from this, the defendants in their written statements have not disclosed as to who are the other persons who should have been joined as necessary parties to the present suit.
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61. The onus to discharge relating to there being no cause of action in favor of the plaintiff, has again been on the defendant. Again at the cost of repetition it is held that no evidence has been led by the defendants.
62. Issue no.7 has been framed on the objection of defendant no.2. no evidence has been led by defendant no.2 and during the proceedings, defendant no.2 died and proceedings against him stood abated.
63. In view of the above, all these issues are, therefore, decided against the defendants and in favor of the plaintiff.
64. Issue no. 8-
8. Whether the suit has been filed by a duly authorised person? OPP.
65. Onus of proving this issue has been placed on the plaintiff bank. The present suit has been filed by Sh. B M Aggarwal, Manager of the plaintiff bank at its branch office Rani Bagh. Sh. B M Aggarwal is also the holding General Power of Attorney executed by the plaintiff bank in his favor. Along with the plaint, copy of the General Power of Attorney dated 28.09.1979 in the name of Sh. Brij Mohan Aggarwal has been filed. In the said General Power of Attorney, the power has been bestowed on to Sh. Brij Mohan Aggarwal to institute suits, to file appeals, revisions, CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 30 of 35 writs, legal proceedings and applications and defend the same. Therefore, till the extent of filing the present suit by the plaintiff bank through its authorised person, is correct in view of the General Power of Attorney dated 28.09.1979. The suit has been accordingly filed by a duly authorised person.
66. This issue is, therefore, decided in favor of the plaintiff and against the defendants.
67. Issue no.9-
9. Whether the plaintiff is entitled to the suit amount? if so, to what amount? OPP.
68. Onus of proving this issue is on the plaintiff. In order to prove its case, the plaintiff bank has examined three witnesses.
69. PW1 Sh. B M Aggarwal tendered his affidavit in evidence Ex.PW1/A. In para no.4 of his affidavit in evidence Ex.PW1/A, PW1 Sh. B M Aggarwal has deposed that a sum of Rs. 63,67,152/- was due and payable by the defendants in their account as on 28.11.1997 which included the interest upto September 1996 and thereafter no interest was debited to the account of defendant no.1, the account having been categorized as NPA. The plaintiff bank has further claimed sum of Rs. 27,37,208/- as interest upto the filing of the suit. The total amount, therefore, comes to Rs. 91,04,360/-.
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70. PW1 has further deposed that he was the principal officer and duly constituted attorney of the plaintiff bank at the Rani Bagh Branch and was competent to file and institute the suit and depose on behalf of the plaintiff bank. PW1 had surrendered the original power of attorney to the bank at the time of his retirement. The original power of attorney was reported to be not traceable. The photocopy of the same has been marked as Ex.PW1/1.
71. Ld counsel for both the defendants have objected to the exhibition of the GPA Ex.PW1/1 as the original of it was not produced.
72. PW1 in his cross examination dated 03.12.2009 had brought a certificate as authority letter to depose on behalf of the plaintiff bank. Photocopy of certificate has been marked as Ex.PW1/D1. PW1 denied the suggestion that the authority letter brought by him is not proper one.
73. In his further cross examination dated 20.05.2010, PW1 in his cross examination on behalf of defendant no.1 has deposed that it is correct that he has not filed the General Power of Attorney in his favor. It is correct that he had not brought the original power of attorney. PW1 volunteered that he retired in the year 2000 and surrendered the original power of attorney to the bank but the said power of attorney was not traceable and bank has issued a certificate to this effect, copy of which filed on record. PW1 further CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 32 of 35 deposed that he had not brought any authorisation letter from the bank to depose in the case. He claimed himself to be the authorised representative of the bank. It is correct that PW1 had not filed any authorisation letter in his favor from the bank. It is correct that the alleged fraud did not take place during his tenure in the said bank. The knowledge of PW1 is from the record of the bank.
74. In cross examination of behalf of defendant no.2, PW1 has deposed that it is correct that no authorisation letter in his favor has been filed in this case. It is correct that PW1 has not mentioned anything in his affidavit about the fraud committed by the defendants with the plaintiff bank.
75. The testimony of PW2 being incomplete cannot be read for any purpose whereas PW3 A K Gaur is only a summoned witness who had brought many records. The testimony of PW3 is of no use as he has not deposed at all regarding the alleged fraud committed by the defendants with the plaintiff bank at the relevant point of time. PW3 did not have any personal knowledge about the transactions in question.
76. Though PW1 Sh. B M Aggarwal is a material witness being the attorney holder on behalf of the plaintiff bank but in his affidavit in evidence Ex.PW1/A, he has not deposed about the alleged fraud at all. Moreover, the testimony of PW1 further cannot be relied on as he has not filed on record the original power of CS no. 300/20 Punjab National Bank VS Nargesh Kumar Nagpal & Anr. Page no. 33 of 35 attorney allegedly executed in his favor by the bank. The certificate Ex.PW1/D1 is merely a certificate, certifying that general power of attorney was issued in favor of Sh. Brij Mohan Aggarwal vide special committee of board resolution, dated 10.11.1980. It is further certified that Sh. Brij Mohan Aggarwal was competent to act on behalf of Punjab National Bank to institute suits, to file appeals, revisions, writs, legal proceedings and applications on behalf of the plaintiff bank by virtue of the aforesaid power of attorney. In the said certificate Ex.PW1/D1, no power has been assigned on to the PW1 to depose in the present case. Still the moot question remains unanswered that the plaintiff bank failed to prove the general power of attorney Ex.PW1/1 when they did not produce the original of it before the Court. Be that as it may, the testimony of PW1 by way of his affidavit in evidence Ex.PW1/1 does not prove the alleged fraud having been committed by the defendants in the manner as described in the plaint.
77. The testimony of PW2 Sh. J B Gupta would have been relevant and material in proving the fraud but his incomplete testimony is of no use to the case of the plaintiff bank.
78. In view of the above, this Court has no hesitation to hold that the plaintiff bank has not been able to prove the pleadings of fraud allegedly committed by the defendants as stated in the plaint on the scale of preponderance of probabilities. This issue is, therefore, decided against the plaintiff bank and in favor of the defendants.
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79. Issue no.10- Relief.
In view of my discussion on the issues herein above, suit of the plaintiff is hereby dismissed.
80. However, the plaintiff bank is awarded cost of the suit.
81. Decree sheet be prepared accordingly.
Digitally
signed by
KISHOR
KISHOR KUMAR
82. File be consigned to record room. KUMAR Date:
2023.08.23
16:28:14
+0530
Pronounced in the open court (Kishor Kumar)
on 23.08.2023 ADJ-04 (EAST),
KKD, Delhi
23.08.2023
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