Delhi District Court
M/S. Paras Plastics vs The Icici Banking Corporation Ltd on 9 January, 2014
1
IN THE COURT OF SH VINOD KUMAR MEENA,
CIVIL JUDGE - 13 (CENTRAL), TIS HAZARI COURTS,
CS No.82/14
Unique I.D. no.-02401C5409192004
M/s. Paras Plastics,
2120, B.G. Road, Delhi.
Through its Manager
Rajiv Jain
S/o Rajinder Parshad,
R/o 4655, Gali Mohar Singh,
Pahari Dheeraj, Delhi-6.
.... Plaintiff
VERSUS
1. The ICICI Banking Corporation Ltd.,
Sadar Bazar, Delhi-110006.
Earlier known as Bank of Mudra Ltd.
2. State Bank of India
Branch:11, Sansad Marg, New Delhi.
....Defendants
SUIT FOR RECOVERY OF RS. 2,28,124/-
Date of institution of case : 12.04.2004
Reserved for judgment : 23.12.2014
Date of pronouncement of judgment: 09.01.2015
JUDGEMENT
1. By this order, I shall dispose off the suit for recovery of Rs. 2,28,124/-
filed by plaintiff against the defendants.
PLAINTIFF'S CASE CS No. 82/14 Paras Plastic vs. ICICI Bank page 1 of 15 2
2. The brief facts of the case as mentioned in the plaint are that the plaintiff is maintaining its bank account no. 19935 with the defendant no.1 and the plaintiff money which was lying in its bank with the defendant no.1 was transferred to defendant no.2 without the consent of the plaintiff.
3. It is averred by plaintiff in his plaint that the plaintiff is a businessman dealing in selling of plastic raw material etc. The owner of M/s. Balaji Plastic, at Patna (Bihar) approached the plaintiff for supply of plastic raw material in the month of April 1999 and the plaintiff agreed to supply the goods to M/s. Balaji Plastic on the condition that the delivery of the goods would be sent only after the receipt of the payment. The plaintiff consented to supply the raw material to its prospective buyer. A demand draft bearing no. 191536 dt. 26.04.1999 for a sum of Rs. 2,40,000/- drawn on State Bank of India, Navada branch was issued by the prospective buyer towards the goods to be supplied and the said demand draft deposited by the plaintiff in his account no. 19935 at ICICI Bank (defendant no.1) on 05.05.1999 and the same was realised on 06.05.19999 after proper verification and procedure laid down by the defendant.
4. The plaintiff dispatched the goods to the purchaser after receiving the consideration and taken all due diligence and care in dealing with the bank and other persons. So, in these circumstance the plaintiff cannot be made scapegoat of the dereliction from its duty committed by the defendant no.2. It is further averred by the plaintiff in his plaint that suit bearing no. 154/01 was filed by the defendant no.2 against defendant and the plaintiff and the CS No. 82/14 Paras Plastic vs. ICICI Bank page 2 of 15 3 same was decided by Sh. S. N. Aggarwal, the then Ld. ADJ vide order dt. 07.04.2003 and accordingly, the amount of Rs. 2,13,200/- was transferred by the defendant no. 1 to the defendant no.2 without the consent of the plaintiff.
5. It is further averred by the plaintiff that an appeal against the above said judgment and decree dated 07.01.2003 was filed by him stating that the said decree has been passed without providing any opportunity to the plaintiff. However, the appeal was dismissed by Hon'ble High Court of Delhi on 22.04.2003 in RFA no. 305/2003 by stating that " The suit of the plaintiff against the defendant no.2 (herein plaintiff) was dismissed as not pressed. In view of the fact that the suit has been dismissed, this appeal is not maintainable and hence dismissed".
6. It is further submitted by the Ld. counsel for the plaintiff that as the amount has been transferred by defendant no.1 to defendant no.2 without any basis and without the consent of the plaintiff, the plaintiff has suffered losses and accordingly the present suit for recovery of Rs 2,28,124 has been filed.
DEFENDANT'S CASE
7. Both the defendants have filed their separate written statements and it is averred in their written statements that suit is not maintainable on the ground that a forged negotiable instrument has no sanctity under the eyes of law because the said instrument does not have the mandate of the drawer;
CS No. 82/14 Paras Plastic vs. ICICI Bank page 3 of 15 4 that since the payment was made by defendant no.1 bank to the defendant no.2 Bank under mistake, therefore, defendant no.2 Bank had right to recover back the same from the plaintiff as well as defendant no.1 and similarly the defendant no.1 bank had the right to recover the same from the plaintiff as he was the ultimate beneficiary of the payment which was made due to mistake. It is also contended in the written statements that the present suit is liable to be rejected on the grounds of non-joinder of party and that suit of the plaintiff is without any cause of action.
8. On merits, it is averred by the defendant no.1 that the plaintiff is the account holder of the defendant no.1 bank and the account of the plaintiff was opened on 26.06.1989 and was properly introduced by M/s. Anand Plastic Bhandar an account holder of the defendant no.1. It is further averred by the defendant no.1 that on 05.05.1999 a demand draft in the sum of Rs. 2,40,000/- bearing no. 191536 was deposited and the said demand draft was deposited for encashment and same was encashed through defendant no2 and the amount was credited in the account of the plaintiff on 06.05.1999.
It is further averred by the defendant no.1 that after receiving the information from the defendant no.2 about the forged documents i.e. demand draft, the defendant no.1 immediately took up the matter with the plaintiff and a letter dt. 01.08.1999 was issued calling upon the plaintiff to remit the amount, however, plaintiff failed to give reply to the said letter. Accordingly, a sum of Rs. 2,13,200/- which was deposited in the account of plaintiff through one demand draft was held back by employing the right of CS No. 82/14 Paras Plastic vs. ICICI Bank page 4 of 15 5 the lien and the same was transferred to the defendant no.2 in terms of judgment dt. 07.01.2003 which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ in civil suit no 154/01.
9. Replication has been filed by the plaintiff to the WS of defendants wherein he denied the allegations made in the WS except the admissions made and reiterated the contents of the plaint.
ISSUES
10. After the completion of pleadings, following issues were framed on 24.09.2004.
(i) Whether the suit of the plaintiff is liable to be rejected under Order 7 Rule 11 of CPC?OPD
(ii) Whether the suit of the plaintiff is barred by Section 41 of the Specific Relief Act?OPD
(iii) Whether the plaintiff is entitled for the recovery of Rs. 2,28,124/- against the defendant, as prayed?OPP
(iv) Whether the plaintiff is entitled for the pendentelite and future interest, if yes, at what rate and for what period?OPP
(v) Relief.
EVIDENCE
11. In support of his case, the plaintiff examined Sh. Rajiv Jain as a PW1. PW1 has stated and reiterated on oath the contents of the plaint. The PW1 and PW-2 relied upon certain documents which are as under:-
CS No. 82/14 Paras Plastic vs. ICICI Bank page 5 of 15 6
(i) Ex PW1/1 is the affidavit of the plaintiff.
(ii) Ex PW1/2 is affidavit duly authorised on 24.03.2004 by the partners of the plaintiffs firm.
(iii) Ex PW1/3 and Ex. PW-1/4 are the partnership registration certificate form A and B.
(iv) Ex. PW-1/5 & PW-1/6 are judgment passed by the Sh. S. N. Aggarwal and decree with respect to the same.
(v) Ex. PW-1/7 is the invoice dated 07.05.1999
(vi) Ex. PW-1/8 is the appeal dismissed on 22.04.2003.
(vii) Ex. PW-1/9 is the demand notice.
(viii) Ex. PW-1/10 and Ex. PW-1/11 are Registry receipts
(ix) Ex. PW-1/12 is the undelivered registry.
(x) Ex. PW-1/13 & PW-1/14 are AD cards.
Documents relied upon by PW-2 are as follows:
(i) Ex. PW-2/1 is the FIR dt. 01.09.1999.
(ii) Ex. PW-2/3 is the charge sheet.
(ii) Ex. PW2/3 is the statement of Rajeev Jain recorded in court on 08.07.2004
12. In their defence, the defendants have examined two witnesses i.e. Sh. Narinder Singh as D1W1 AR of the defendant no.1 and Sh. Navin Daundiyal as D2W1. They deposed in consonance with the contents of their WS. D2W1 relied upon certain documents which are as under:-
(i) Ex. D2W1/1 is the certified copy of the plaint no. 154 of 2011.
(ii) Ex D2W1/2 is Written statement filed by the defendant no.1 in suit CS No. 82/14 Paras Plastic vs. ICICI Bank page 6 of 15 7 no,. 154 of 2001.
(iii) Ex D2W1/3 is the certified copy of application under Order 12 Rule 6 CPC in suit no. 154 of 2001.
(iv) Ex D2W/5 and Ex. D2W1/6 are certified copy of judgment and decree passed in suit no. 154 of 2001.
13. Final arguments have been heard on behalf of all the parties and pleadings, evidence & document carefully perused.
14. Now, I shall proceed to give the issue wise findings:-
FINDINGS Issue No. (iii) is being decided first, as it is the main issue. Issue No. (iii) Whether the plaintiff is entitled for the recovery of Rs. 2,28,124/- against the defendant, as prayed?OPP.
15. As far as issue no. (iii) i.e. whether the plaintiff is entitled for the recovery of Rs. 2,28,124/- against the defendant, as prayed?OPP, is concerned, it was incumbent upon the plaintiff to prove that the plaintiff is entitled to get a recovery of Rs. 2,28,124/-. W.r.t issue no. 3, the Court deem it fit to mention here that the plaintiff has contented in the plaint that the defendant no. 2 filed one suit for recovery against the defendant no. 1 and present plaintiff and the same was bearing institution no. as 154/2001 and in the same suit one intricate question has been decided against the CS No. 82/14 Paras Plastic vs. ICICI Bank page 7 of 15 8 plaintiff without providing the proper opportunity to the plaintiff, which has been resulted into injustice to the plaintiff. It is submitted by Ld. counsel for the plaintiff that in the earlier suit bearing no. 154/2001, the case was decided under Order XII Rule 6 of CPC on the basis of wrong admission by the defendant no. 1 and by the same decision, the plaintiff has suffered the losses for no mistake on his part. It is further submitted by Ld. counsel for the plaintiff that the consent of the plaintiff has not been obtained by defendant no. 1 and the money from the account of plaintiff which was with the defendant no. 1 bank has been transferred by defendant no. 1 to the defendant no. 2. It is further submitted by Ld. counsel for plaintiff that one demand draft which was received from one of his client namely M/s Balaji Plastic was received towards the payment in transaction between the plaintiff and M/s Balaji Plastic and the demand draft bearing no. 191536 dated 26.04.1999 for sum of Rs.2,40,000/- drawn on State Bank of India, Nawada (which was received from M/s Balaji Plastic) was duly deposited with his bankers i.e. defendant no. 1 on 05.01.1999. It is further submitted by Ld. counsel for plaintiff that the amount towards the demand draft was duly cleared on 06.05.1999 and accordingly, when the plaintiff received a sum of Rs. 2,40,000/- towards the account of demand draft, the plaintiff supplied the material to M/s Balaji Plastic. It is further submitted by the Ld. counsel for the plaintiff that the defendant no. 2 filed the suit bearing no. 154/14 on 23.10.2001 against the defendant no. 1 and the plaintiff on the ground that the impugned DD bearing no. 191506 for the sum of Rs. 2,40,000/- dated 26.04.1999 was not valid and legal instrument and the same was looted draft and by the same suit the defendant no. 1 sought the CS No. 82/14 Paras Plastic vs. ICICI Bank page 8 of 15 9 relief against the defendant no. 1 and the plaintiff that the sum of Rs. 2,40,000/- be returned back to the defendant no. 2 by the plaintiff and the defendant no. 1. The suit was decreed vide order dt. 07.01.2003 and the defendant no. 1 transferred to defendant a sum of Rs. 2,13,200/- from the account of the plaintiff and the same was done without consent of the plaintiff and accordingly, the plaintiff has suffered losses to the tune of Rs. 2,13,200/-. Accordingly, the present suit has been filed for recovery of sum of Rs. 2,13,200/- from the defendant no. 1 and defendant no. 2 and it is submitted by Ld. counsel for the plaintiff that suit be decreed, accordingly, as the plaintiff is entitled for recovery of sum of Rs. 2,13,200/- which has been transferred by defendant no. 1 to defendant no. 2 without his consent.
Per contra, it is submitted by Ld. counsel for defendant no. 1 & 2 that the suit of the plaintiff as well as the prayer for the recovery of sum of Rs. 2,13,200/- is nothing but illegal, improper and unwarranted. It is submitted by Ld. counsel for defendants that the defendant no. 1 has transferred the money to the defendant no. 2 in terms of order dt. 07.01.2003 which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ in suit no. 154/01 and by way of present suit the plaintiff is seeking the review or appeal of the order passed by the Ld. ADJ dated 07.01.2003. It is further submitted by Ld counsel for defendant no. 1 that defendant no. 1 got an information from defendant no. 2 vide letter dt. 26.07.1999 to the effect that demand draft bearing no. 191536 against which the amount was cleared was a looted one as the same was looted from the branch of defendant no. 2 in Bihar.
It is further submitted by Ld. counsel for defendant no. 1 that the CS No. 82/14 Paras Plastic vs. ICICI Bank page 9 of 15 10 matter was immediately conveyed to the plaintiff vide letter dt. 01.08.1999, however, the plaintiff fail to give any reply to the said letter. Thereafter, the mater was again conveyed to the introducers/guarantors the plaintiff. However, he also has not responded. It is submitted by the Ld. Counsel for defendant no. 1 that as a matter of precaution the defendant no. 1 exercised its right of lien and sum of Rs. 2,13,200/- which was deposited in the account of the plaintiff through one demand draft was kept separately and the same was transferred to the defendant no. 2 in accordance with the order dt. 07.01.2003 which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ in the suit no. 154/01. It is submitted by Ld. Counsel for the defendant no. 1 that by way of present suit, the plaintiff is trying to challenge the judgment/decree passed by Sh. S. N. Aggarwal, the then Ld. ADJ.
It is submitted by Ld. counsel for defendant no.2 that payment towards impugned demand draft bearing no. 191536 was made by the defendant no.2 as it is the general practice that the demand draft is considered to be a genuine demand draft and it is presumed that the demand draft would have been made after depositing the particular sum in a particular bank, who have executed particular demand draft.
It is further submitted by Ld. counsel for defendant no.2 that on inquiry it was revealed that impugned demand draft bearing no. 191536 was a looted demand draft from the branch of defendant no.2 in Bihar and accordingly, the same was duly conveyed to the defendant no.1 so that defendant no. 1 can take necessary action to retrieve back the sum which has wrongly credited in the account of the plaintiff w.r.t impugned demand draft. It is further submitted by the ld. counsel for defendant no.2 that CS No. 82/14 Paras Plastic vs. ICICI Bank page 10 of 15 11 defendant no.1 has rightly exercised its right of lien and withheld a sum of Rs. 2,13,200/- and the amount of Rs. 2,13,200/- was rightly transferred by the defendant no.1 to the defendant no.2 from he account of the plaintiff in pursuance of judgment and decree passed by Sh. S. N. Aggarwal, the then ld. ADJ. It is further submitted by Ld. counsel for defendant no.2 that the plaintiff has not challenged the withholding of sum of Rs. 2,13,000/- by the defendant no.1 in the present suit or in the earlier suit and the present suit has been filed without any merits on the basis of frivilous facts.
It is submitted by both the counsels for defendants no. 1 and 2 that plaintiff is not entitled for recovery of any sum from the defendants no. 1 and 2 as the defendants no. 1 and 2 has acted upon with the order passed by Sh. S. N. Aggarwal, the then Ld. ADJ vide judgment and decree dt. 07.01.2003.
After going through the evidence adduced by both the parties and documents tendered by both the parties, it is observed by the court that admittedly the sum of Rs 2,13,000/- was transferred by the defendant no.1 to the defendant no.2 in terms of order dated 07.01.2003 which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ.
It is also pertinent to mention here that the plaintiff himself has averred in para-20 of his plaint that cause of action in the present suit arose on 07.01.2003 when the judgment and decree was passed by Sh. S. N. Aggarwal, the then Ld. ADJ in suit no. 154/01. Now question arises whether the court can look into the question which has been decided by Ld. Superior court, in the present court. The answer to the question is in negative and it is clear that the court cannot look into the question/matter CS No. 82/14 Paras Plastic vs. ICICI Bank page 11 of 15 12 which has been decided by the Ld. Superior court to the present court as the court is not sitting in appeal to the order passed by Sh. S. N. Aggarwal, the then Ld. ADJ in suit no. 154/01. Still in the interest of justice and to put to the rest to the present controversy, the court is dealing with all evidences and averments which has been made by both the parties in the pleadings and in the evidence to the present suit. The court deem it fit to mention here that it is the case of the plaintiff that one demand draft bearing no. 191536 was received from one M/s. Balaji Plastics who was the proposed purchaser of goods and the same was deposited in his account with defendant no.1 and the same was cleared on the very next date of depositing impugned demand draft and later on it was contended by the defendant no.2 that impugned demand draft was pertaining to the lot of demand drafts which have been looted from its branch in Bihar and same was not the genuine demand draft and accordingly, sought the remittance of Rs. 2,40,000/- which was transferred by the defendant no.2 in the account of the plaintiff with the defendant no.1 and accordingly, defendant no.2 filed one civil suit bearing no. 154/01 against the plaintiff and defendant no.1 to remit the sum of Rs. 2,40,000/- in account of defendant no.2 and the suit was decreed in favour of defendant no. 2 (plaintiff in the erstwhile suit) for a sum of Rs. 2,13,200/-. Now question arises whether the demand draft was duly prepared by M/s. Balaji who has issued the demand draft in favour of the plaintiff after depositing the sum in the bank; this question has been answered by the AR for the plaintiff in his cross- examination as PW-1 wherein he admitted that M/s. Balaji Plastics did not pay any amount to any branch of SBI for issuing the impugned demand CS No. 82/14 Paras Plastic vs. ICICI Bank page 12 of 15 13 draft. The relevant para is hereby quoted as under for the sake of clarity;
"...We also did not write to M/s. Balaji Plastic regarding the fact that the draft given by them is stolen and forged. It is correct that M/s Balaji Plastic did not pay any amount to any branch of SBI for issuing this draft..."
After going through the above mentioned, it is clear that it is admitted on the part of the plaintiff that M/s. Balaji Plastics who issued impugned demand draft had not paid/deposited any sum in any branch of SBI and once it is clear that the person who has issued demand draft/negotiable instrument has not made the payment w.r.t impugned demand draft/negotiable instrument, how the bank can be made to suffer. From the above mentioned, it is also clear that the plaintiff is trying to get the unjust enrichment of itself at the cost of one public bank/defendant no.2 who has obtained a valid order from the court of competent jurisdiction.
The Court found it very strange that despite knowing the fact that the person who has issued the impugned demand draft (M/s Balaji Plastic in the present suit) has not deposited any sum in any branch of the bank(defendant no. 2), the plaintiff has neither filed any suit against the M/s Balaji Plastic nor M/s Balaji Plastic has been made a party to the present suit and had filed the suit against the bank who had made a payment against impugned demand draft due to bonafide mistake. The Court found no ground as to why the present suit has been filed despite knowing the fact that M/s Balaji Plastic who had issued a demand draft had not made any payment in any branch of the SBI for issuing the impugned draft. At the most, the suit could have been filed against the M/s Balaji Plastic who had CS No. 82/14 Paras Plastic vs. ICICI Bank page 13 of 15 14 benefited from the impugned demand draft which was nothing but forged and looted demand draft. However, the plaintiff has not filed any suit against the M/s Balaji Plastic for the reason best known to it and filed the suit against the bank who had complied with the order of the Court which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ vide order dt. 07.01.2003. Moreover, the Court is not sitting in an appeal to the order which was passed by Sh. S. N. Aggarwal, the then Ld. ADJ and accordingly, from the abovementioned, the Court is of the view that the present suit has been filed without any reason and just to harass the defendants who had complied with order of the Court. Accordingly, the issue no. 1 is decided against the plaintiff.
Issue No. 4. Whether the plaintiff is entitled for the pendentelite and future interest, if yes, at what rate and for what period?OPP
16. As far as the issue no. 4 i.e. Whether the plaintiff is entitled for the pendentelite and future interest, if yes, at what rate and for what period? OPP, is concerned, the same is dependant to the relief as mentioned in issue no. 3 and when the issue no. 3 itself has been decided against the plaintiff, no question arises for granting the pendentelite and future interest and accordingly, the issue no. 4 is decided against the plaintiff.
Issue No. 1 & 2. Whether the suit of the plaintiff is liable to be rejected under Order 7 Rule 11 of CPC?OPD
(ii) Whether the suit of the plaintiff is barred by Section 41 of the Specific Relief Act?OPD CS No. 82/14 Paras Plastic vs. ICICI Bank page 14 of 15 15
17. As far as the issue no.1 i.e. Whether the suit of the plaintiff is liable to be rejected under Order 7 Rule 11 of CPC?OPD and issue no. 2 i.e. whether the suit of the plaintiff is barred by Section 41 of the Specific Relief Act?OPD, are concerned, the court prima facie found no evidence to support the same, accordingly, the issue no. 1 & 2 are decided against the defendants as not proved.
RELIEF
18. In view of my findings on issues, the suit of the plaintiff is hereby dismissed. No order as to costs.
Decree Sheet be drawn accordingly. File be consigned to Record Room.
Announced in the open Court on 09.01.2015 (Vinod Kumar Meena) (Total pages 1 to 19) CJ-13 (Central)/09.01.2015 CS No. 82/14 Paras Plastic vs. ICICI Bank page 15 of 15