Delhi District Court
Amrish Aggarwal vs Bank Of India on 6 November, 2023
IN THE COURT OF MS. ANURADHA SHUKLA
BHARDWAJ: DISTRICT JUDGE (COMMERCIAL
COURT)-02, SOUTH DISTT., SAKET, NEW DELHI
CS (Comm.) No.315/21
1. SH.AMRISH AGGARWAL
S/o. Late Sh. Ram Mohan Aggarwal
R/o. Flat No.IRIS 301,
Salcon The Verndas, Golf
Course Road, Gurugram
Haryana.
....PLAINTIFF
Versus
1. BANK OF INDIA
A-21, Aurobindo Marg,
Green Park, Hauz Khan,
New Delhi.
...DEFENDANT
Date of filing of the suit : 18.09.2021
Date of reserving judgment : 19.10.2023
Date of judgment : 06.11.2023
JUDGMENT
1. This is suit for declaration, mandatory injunction & damages filed by the plaintiff against the defendant.
CS (Comm.) No. 315/21 Page 1 of 23 Amrish Aggarwal Vs. Bank of India Case of the plaintiff
2. In brief case of plaintiff is that plaintiff is a businessman and one of the Directors in M/s. Almex India Pvt. Ltd (Almex). Plaintiff is holding a saving bank account no. 600510100020690 with defendant, which is a nationalized bank carrying on business of banking.
3. It is stated that somewhere in May 2019, plaintiff was apprised that certain restriction have been marked to his aforesaid account. Similar restrictions were also marked in the current account of Almex. Accordingly, plaintiff filed RTI application dt. 14.05.2019 inter alia requesting defendant to provide information as to under which provisions the bank has put lien or withheld the amount on the said account. Defendant provided its reply to the RTI application on 29.07.2019 and informed the plaintiff that a lien has been marked on the said account and the current account bearing no. 600520110000166 of Almex. It was further informed that the said lien was marked on account of some recovery in the cash credit account no. 600530100031175 of M/s. Almex India Pvt. Ltd., of which plaintiff is a Director/Guarantor. It is submitted that the above cash credit account no. 600530100031175 of M/s.Almex India Pvt. Ltd., for which defendant illegally marked lien on the account of plaintiff, was closed on 08.09.2008. It is stated that even if it is presumed that plaintiff executed guarantee documents with respect to cash credit account, the said guarantee would stand CS (Comm.) No. 315/21 Page 2 of 23 Amrish Aggarwal Vs. Bank of India discharged/satisfied on the date of closure of said cash credit account. Thus, no lien could have been marked after the period of 12 years.
4. It is further stated that since no other information was provided in reply to RTI application, plaintiff got issued the legal notice dt. 30.11.2019 and requested to remove illegal lien marked on the account of plaintiff. Defendant gave its evasive reply dt. 21.12.2019 to the above notice. It is stated that since there was only an amount of Rs.34,771.93 available at the time of marking a lien in the plaintiff's account, plaintiff did not pay any heed and later on account of pandemic and lock-down in the country, it escaped plaintiff's attention. Subsequently, on account of some income tax-refund, said account of plaintiff was credited with an amount of Rs.16,93,760/- on 15.05.2021 resulting in available balance of Rs.19,99,047/-.
5. It is further stated that towards the end of May 2021, plaintiff was desirous of operating the said account and for this purpose visited the defendant, however, plaintiff was informed by the Branch Manager of defendant namely Sh. N.P. Khandhari that he can only withdraw amount of Rs.3,53,180/- and not full amount of Rs.19,90,127/- which was available in the said account. Plaintiff immediately wrote a letter dt. 31.05.2021 requesting for the statement of account in respect of said account. The statement of account provided by defendant showed the balance in the said account as Rs.19,90,127/-, however, an entry CS (Comm.) No. 315/21 Page 3 of 23 Amrish Aggarwal Vs. Bank of India was made which showed the effective balance as only Rs.3,53,180/- and there was no explanation as to what happened to the amount of Rs.16,36,947/-.
6. It is stated that plaintiff immediately got sent a notice dt. 03.06.2021 to defendant emphasizing that Almex has nothing to do with the said account of plaintiff. Therefore, even if defendant had any claim from Almex, under no circumstances, defendant could have put lien on the said account of plaintiff. Plaintiff also instituted a police complaint dt. 24.06.2021 with SHO, Safdarjung Enclave for illegal action of defendant. Since no action was taken on the complaint of plaintiff, he also gave a representation dt. 06.07.2021 to DCP, Vasant Vihar. In the meantime, plaintiff was served with notice dt. 06.07.2021 sent by defendant, wherein it was alleged that defendant by mistake had credited the account of M/s. Almex India Pvt. Ltd. on 03.08.2008 by an amount of Rs.16,36,947/- and plaintiff being the director of company is liable to make the payment. Plaintiff immediately got issued reply dt. 09.07.2021, inter alia pointing out that there is no liability, which can be fastened on plaintiff and that claim of defendant is misconceived.
7. It is stated that from 2008 till date, there is no proceeding, which has been initiated by defendant against M/s. Almex India Pvt. Ltd. It is stated that Almex was having business relations with one M/s. Harmind Packaging Pvt. Ltd. (HPPL). The said HPPL in the course of business with M/s. Almex India Pvt. Ltd.
CS (Comm.) No. 315/21 Page 4 of 23 Amrish Aggarwal Vs. Bank of India had issued various cheques, which were deposited with defendant and one of the said cheques was for Rs.16,36,947/-. M/s. Almex India Pvt. Ltd. was informed in pursuance to statement of account that cheque has been credited in their account. The said cheque was never returned to M/s. Almex India Pvt. Ltd. It is stated that dispute arose between M/s. Almex India Pvt. Ltd. and HPPL leading to filing of a civil suit. Since the cheque for Rs.16,36,947/- was shown as honoured and the amount credited to the account of M/s.Almex India Pvt. Ltd., Almex India Pvt. Ltd. never claimed the said amount from HPPL. Further, had defendant intimated M/s. Almex India Pvt. Ltd. in time about dishonour of cheque, which is being done after 12 years, M/s.Almex India Pvt. Ltd. would have then made a claim of this amount against the issuer of cheque. For this reason as well, defendant could not have marked lien or withhold the amount of the plaintiff in facts or in law. It is stated that even if it is assumed that defendant has a right to mark lien in the account of plaintiff, as per respondent the amount wrongly credited to account of M/s.Almex India Pvt. Ltd. was for the period of 2008, therefore, the said amount cannot be recovered as the same is hopelessly barred by limitation.
8. It is stated that in May, 2021 M/s. Almex India Pvt. Ltd. and plaintiff had approached Banking Ombudsman and filed their complaint on account of illegal act of defendant, however the said complaints were closed under rule 11(3) (c) of the Banking Ombudsman Scheme. Thereafter, plaintiff also filed CS (Comm.) No. 315/21 Page 5 of 23 Amrish Aggarwal Vs. Bank of India individual complaint before Banking Ombudsman, however, the said complaint was also closed. Being aggrieved on account of illegal and arbitrary action by defendant, plaintiff had also preferred a Writ Petition being W.P (C) No. 9254/2021 before Hon'ble Delhi High Court, however, same was dismissed. It is stated that at the time of making a lien on 15.05.2021, a sum of Rs.16,36,947 was available in the said account, which plaintiff would have utilised for his use. Plaintiff has already quantified an amount of Rs.50,000/- towards such loss/damages till filing of present suit and thus entitled for an amount of Rs.3,50,000/- towards damages/compensation.
9. It is submitted that due to non-utilisation of above amount of Rs.16,36,947/- plaintiff is also entitled to interest @ 24/% per annum. It is stated that plaintiff would be entitled for pendente- lite and future interest @ 24% p.a till the time lien is removed.
10. Plaintiff has sought decree of declaration in favour of plaintiff and against the defendant that marking of a lien for an amount of Rs.16,36,947/- in the plaintiff's Saving Bank Account No.600510100020690 is illegal, void and arbitrary; decree of Mandatory Injunction in favour of plaintiff and against defendant directing defendant to remove its lien for a sum of Rs.16,36,947/- in the plaintiff's Saving Bank Account No. 600510100020690; decree of Rs.3,00,000/- in favour of plaintiff and against defendant towards damages/compensation for causing mental harassment and agony to plaintiff by marking illegal and CS (Comm.) No. 315/21 Page 6 of 23 Amrish Aggarwal Vs. Bank of India arbitrary lien in the said account of plaintiff; decree of Rs.81,898/- in favour of plaintiff and against defendant towards interest @ 24% p.a from date of marking lien in the account of plaintiff till 31.03.2021 and also grant of interest @ 24% p.a on Rs.16,36,947/- during the pendency of case till its realization.
Case of the defendant
11. The defendant put in appearance upon service of summons and filed written statement, wherein it is stated that M/s. Almex India Pvt. Ltd. was holding two accounts at Hauz Khas branch of Bank of India i.e current account no. 600520110000166 and a cash credit account no. 600530100031175. It is stated that plaintiff is director of company, who is also holding Savings Bank Account No.600510100020690 with defendant and he is solely taking care of all the affairs/finances of his company M/s. Almex India Pvt. Ltd. It is further stated that for the purpose of advancement of his business identity i.e M/s. Almex India Pvt. Ltd. through plaintiff approached defendant and applied for grant of cash credit facility vide its loan application. Vide sanction letter defendant agreed to advance various cash credit facilities to M/s. Almex India Pvt. Ltd.. 1. Cash credit limit of Rs.25 lacs against stock, 2. cash credit limit of Rs. 5 lacs towards book debts and 3. Bank guarantee limit of Rs.15 lacs and for the said purpose M/s.Almex India Pvt. Ltd. through its director i.e plaintiff alongwith his wife Ms. Goldie Aggarwal got executed various loan documents.
CS (Comm.) No. 315/21 Page 7 of 23 Amrish Aggarwal Vs. Bank of India
12. It is stated that for the purpose of availing loan facilities by M/s. Almex India Pvt. Ltd., plaintiff himself executed guarantee document thereby plaintiff stood as a guarantor to the loan facility advanced to M/s. Almex India Pvt. Ltd. It is stated that on 03.07.2008, a cheque bearing no. 809110 was deposited with defendant branch and was sent for clearing to be credited to account no. 600530100031175 which was received from M/s. Harmid Packaging Pvt. Ltd. When the said cheque was presented for encashment the same was returned in clearing on 03.07.2008. As such, the cash credit account no. 600530100031175 on 03.07.2008 reflected a credit amount of Rs.16,36,947/- and a debit amount of Rs.16,36,947/-. However, due to error/failure which happened as all the system of bank were under updating as per RBI guidelines an additional credit entry was made into the account no. 600530100031175 for an amount to the tune of Rs.16,36,947.00/- on 03.07.2008. It is submitted that this entry into the cash credit account no. 600530100031175 went unnoticed by the bank as there was a system update being carried out in all the branches of Bank of India as per RBI TS-10 directives.
13. It is further stated that despite having realized that an amount of Rs.16,36,947/- has been wrongly credited to the company's cash credit account no. 600530100031175, and knowing that cheque presented had not been cleared, plaintiff chose not to inform the defendant about wrong credit entry made into its company account.
CS (Comm.) No. 315/21 Page 8 of 23 Amrish Aggarwal Vs. Bank of India
14. It is further stated that plaintiff with intent to draw out monetary benefits by illegal means again on 08.09.2008 requested defendant to close the said cash credit facility account and consequently withdrew the balance amount from account and closed the said cash credit account no. 600530100031175. It is stated that after 10 years i.e in the year 2018 defendant reconciled its accounts and came to know that the said amount was wrongly credited into the cash credit account no. 600530100031175 on 03.08.2008. Accordingly, in light of the facts, bank placed lien on 27.09.2018 for an amount of Rs.16,36,947/- on plaintiff's company current account no. 600520110000166 as well as personal savings account no. 600510100020690 being the only Director and authorised signatory/guarantor of cash credit facilities advanced to M/s. Almex India Pvt. Ltd.
Replication
15. Replication was filed by plaintiff, wherein he reaffirmed the facts mentioned in plaint and denied the contents of written statement. It is stated that plaintiff stated that defendant has not filed any document to substantiate its claim that plaintiff had executed guarantee document to the loan facility advanced to M/s.Almex India Pvt. Ltd. Qua the averments regarding wrong credit having been made in the account of M/s.Almex plaintiff stated that para related to account of M/s. Almex and therefore, he could not comment on it. It is stated that defendant did not CS (Comm.) No. 315/21 Page 9 of 23 Amrish Aggarwal Vs. Bank of India inform plaintiff about dishonour of cheque no. 809110 and therefore, it could not take steps against M/s. HPPL for recovery of aforesaid amount. The averment that the amount of Rs.9,69,133/- was in lieu of dishonour of cheque no. 809110 was denied. The contents of written statement on merit have been denied by the plaintiff.
16. On pleadings, following issues were framed on 20.09.2022:-
1. Whether plaintiff stood as a personal guarantor to the loan/credit facilities granted to M/s Almex India Pvt. Ltd during the period 2004 to 2008?
OPD
2. Whether the action of the defendant in marking lien of the personal saving account bearing no. 600510100020690 of the plaintiff (who is the director of M/s Almex India Ltd.) with respect to a transaction dated 03.07.2008 regarding the alleged wrongful dishonourment of the cheque of M/s Harmind Packaging Pvt. Ltd. in the account of M/s Almex India Ltd. is within limitation? OPD
3.Whether plaintiff is entitled for a decree of declaration and mandatory injunction as prayed vide prayer (a) & (b)? OPP
4. Whether plaintiff is entitled for a sum of Rs.3,00,000/-towards damages? OPP
5. Whether the plaintiff is entitled for an interest @ 24% per annum on Rs.16,36,947/- from 15.05.2021 till removing of the lien? OPP
6. Whether M/s Harmind Packaging Pvt. Ltd. is a necessary or proper party? If so, its effect? OPD CS (Comm.) No. 315/21 Page 10 of 23 Amrish Aggarwal Vs. Bank of India
7. Relief and costs.
Arguments by the parties
17. It was argued by Ld. Counsel for plaintiff that the plaintiff vide Ex.PW-1/2 came to know that bank had marked lien on the saving account of plaintiff on grounds of some dues in cash credit account of M/s.Almex India Pvt. Ltd. of which plaintiff is Director. It is stated that defendant could not have marked lien on the account of plaintiff as cash credit account of M/s. Almex India Pvt. Ltd., of which the plaintiff is director, was closed on 08.09.2008. It was argued that defendant claimed that plaintiff was personal guarantor to cash credit facility, however, has not filed any document in support of this contention. It was stated that defendant bank never informed plaintiff or its company about the dishonour of cheque bearing no. 809110, which was wrongly encashed by the defendant bank. Ld. Counsel also argued that claim of defendant is barred by limitation.
18. Ld. Counsel for defendant argued that plaintiff and his wife had given security for the cash credit account of M/s.Almex India Pvt. Ltd. and they had mortgaged their properties as a security to the cash credit account. The documents in this regard have been relied upon as Ex.D1. Plaintiff has admitted execution of these documents and his signatures on the notings of mortgage of properties. The plaintiff admitted in his cross-examination CS (Comm.) No. 315/21 Page 11 of 23 Amrish Aggarwal Vs. Bank of India that he would have been liable for payment of the dues in case M/s.Almex India Pvt. Ltd., failed in clearing whatever it owed to the bank. It was argued that this was a clear admission of liability and irrespective of document filed by defendant, plaintiff is bound by this admission. He argued that case of defendant on limitation is covered by section 17 (1) (c) of Limitation Act as the credit entry in the account of M/s.Almex India Pvt. Ltd. was made by mistake. The mistake was discovered during the reconciliation of accounts in 2018, whereafter the lien was marked in the account of plaintiff.
19. Arguments heard. Record Perused.
Issue-wise findings
20. Issue No.1:- Whether plaintiff stood as a personal guarantor to the loan/credit facilities granted to M/s Almex India Pvt. Ltd during the period 2004 to 2008? OPD
21. Onus to prove this issue was on defendant. The case of defendant is that plaintiff had given security to the cash credit/overdraft facility granted to M/s. Almex India Pvt. Ltd., of which plaintiff is a director. In this regard, defendant is relying upon OD174. It was argued by Ld. Counsel for defendant that loan facility taken by the M/s. Almex India Pvt. Ltd. is not denied. For the grant of this facility to the company plaintiff CS (Comm.) No. 315/21 Page 12 of 23 Amrish Aggarwal Vs. Bank of India being one of the directors stood as personal guarantor and executed all documents mentioned in Ex.D1. Ex.D1 mentions against security DP note dt. 06.08.2004. The DP note of 06.08.2004 states that plaintiff and his wife Goldie Aggarwal had met bank and had agreed to create equitable mortgage in respect of the two immovable properties situated at 7707-7708, C-2, Gali No.1, Ram Nagar and at H-38, Green Park Extn. Ground Floor. Plaintiff has admitted that he had mortgaged his immovable properties, one along with his wife and one personally. He has also admitted execution of these documents and his signatures thereon. Ex.D1 categorically mentions that mortgage of the properties was towards the security. The plaintiff admitted in his cross-examination that Ex.D1 bears his signatures at point A to G including on the page, where he had signed against creation of equitable mortgage in respect of the two properties at points B, C, D, E, F & G. The plaintiff admitted suggestion given to him that he being one of the directors of M/s.Almex India Pvt. Ltd. had mortgaged the aforesaid properties. He admitted that if M/s.Almex India Pvt. Ltd. was unable to pay the dues as per terms of loan documents mentioned in Ex.D1, defendant bank could recover the said dues from him and his wife by selling above mentioned properties. The plaintiff thus, has admitted his liability qua repayment of any amount which M/s. Almex India Pvt. Ltd. owed to the bank and thus for all practical purposes he would be considered as having stood as guarantor to the loan/credit facility granted to M/s. Almex India Pvt. Ltd. for the period stated.
CS (Comm.) No. 315/21 Page 13 of 23 Amrish Aggarwal Vs. Bank of India
22. It was argued by Ld Counsel for plaintiff that DW1 in his cross examination has admitted that mortgage and personal guarantee were different documents. He argued that no personal guarantee was executed by plaintiff. The argument of Ld. Counsel does not hold ground as since mortgage deed executed by plaintiff was as security and thus the bank has created lien as M/s. Almex India Pvt. Ltd. is liable to pay the amount in respect of which the plaintiff gave security by mortgaging the properties.
23. Ld. Counsel for the plaintiff has relied upon judgment in case titled as Tristar Consultants Vs. M/s. V. Customer Services India Pvt. Ltd. & Anr., 2007 SCC Online Del 359, wherein the Hon'ble High Court held that directors were not personally liable for breach of contract unless personal guarantee was involved. In the said matter, however, the court has itself held in para 15 that the defendant of the said case had not personally undertaken or agreed to clear any liability of defendant company outstanding against the plaintiff of the said case. No guarantee or indemnification was pleaded in the said case. In the instant case, however, plaintiff has admitted that he had entered into an agreement with defendant bank, whereby he mortgaged his two properties as security for repayment of OCC granted to M/s.Almex India Pvt. Ltd. Plaintiff himself admitted in cross examination that had M/s Almex India Pvt Ltd failed to pay the dues he would have been liable to clear such dues.
This issue is thus decided in favour of defendant and against the plaintiff.
CS (Comm.) No. 315/21 Page 14 of 23 Amrish Aggarwal Vs. Bank of India
24. Issue No.2:- Whether the action of the defendant in marking lien of the personal saving account bearing no. 600510100020690 of the plaintiff (who is the director of M/s Almex India Ltd.) with respect to a transaction dated 03.07.2008 regarding the alleged wrongful dishonourment of the cheque of M/s Harmind Packaging Pvt. Ltd. in the account of M/s. Almex India Ltd. is within limitation? OPD
25. Plaintiff had argued that the lien created by defendant in 2018 in respect of a recovery which was to be made in 2008 is barred by limitation. Defendant in this regard has placed his reliance on section 17 (1) (c) of Limitation Act.
26. Section 17 Effect of fraud or mistake:- (1) where, in the case of any suit or application for which a period of limitation is prescribed by this Act-
(c) the suit or application is for relief from the consequences of a mistake: or ..... the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its CS (Comm.) No. 315/21 Page 15 of 23 Amrish Aggarwal Vs. Bank of India production.
27. It was argued by Ld. Counsel for defendant that around relevant time there was a system update being carried out in all the branches of Bank of India as per RBI TS-10 directives because of which the error got unnoticed. Coupled with this due to closure of account no. 600530100031175 of M/s. Almex India Pvt. Ltd., which was intentionally closed by plaintiff soon after the cheque was wrongly credited to its account, the error went unnoticed. It is stated that due to above reasons the defendant bank was not able to trace the wrongful credit entry.
28. Ld. Counsel for the plaintiff argued that defendant has failed to show it was despite reasonable diligence that the mistake could not be discovered and in absence of that section 17 does not help the defendant. It is stated that there is no pleading by the defendant as to when the alleged mistake came into knowledge of defendant.
29. It was argued by Ld. Counsel for the plaintiff that the defendant has not mentioned in the pleadings as to when it came to know about the mistake and therefore, section 17 cannot help the defendant. Para 10 of the written statement says clearly that "after a span of approximately 10 years defendant reconciled its account and came to know about the said fraud committed by plaintiff upon defendant which was hatched in a very planned manner and subsequently marked lien on his account (s)". In CS (Comm.) No. 315/21 Page 16 of 23 Amrish Aggarwal Vs. Bank of India para 11 of the WS it is written further that " it was only later in the year 2018 when the said error came in the knowledge of defendant that the said amount was wrongly credited into the account no.600530100031175 on 03.08.2018 and thus bank placed lien on 27.09.2018."
30. Ld. Counsel for the defendant in this regard argued that since the cheque in question was of a huge amount, the same was encashed by Janpath Branch (DW1 has stated in his cross examination that information of cheque having been paid by M/s HPPL to M/s Almex India Pvt Ltd, was received from the Janpath Branch.) while the account of plaintiff was in Hauz Khas Branch and therefore, error could not be detected in time. He also argued that since the plaintiff closed its account immediately it was difficult for the defendant to detect the error, which could be detected only during the reconciliation of bank account. It was also argued that due to system update under guidelines of RBI, the error went unnoticed.
31. Ld. Counsel for Plaintiff has relied upon judgment of Hon'ble Supreme Court in (2011) 9 SCC 126 Khatri Hotel Pvt. Ltd. & Anr. Vs. Union of India & Anr. while Ld. Counsel for defendant has relied upon judgment in Panjwani Packaging Ltd. & Ors. Vs. Allahabad Bank, 2015 Lawsuit (Del) 1070. The judgment of M/s. Pajnwani Packaging Ltd. is directly applicable to the facts of this case. The Hon'ble High Court in the said matter discussed section 17 of Limitation Act and held as CS (Comm.) No. 315/21 Page 17 of 23 Amrish Aggarwal Vs. Bank of India under:-
"there being no evidence to refute the claim of bank that it discovered the error only in December 1995, the cause of action in favour of bank must be held to have arisen only upon receipt of communication form income tax authorities therefore, limitation will begin by virtue of section 17 of Limitation Act only on the said date."
32. In the instant matter also defendant claimed categorically that it came to know about the error when reconciliation of accounts took place in 2018. There is nothing to suggest that the claim of bank is false and therefore, in view of the section 17 (1)
(c) of Limitation Act, marking of lien in the account of plaintiff in 2018 cannot be termed as barred by limitation.
The issue is decided in favour of defendant and against the plaintiff.
33. Issue no.6. Whether M/s. Harmind Packaging Pvt. Ltd. is a necessary or proper party? If so, its effect? OPD
34. Defendant had moved an application stating that suit is bad for non joinder of M/s.HPPL, which was a necessary party, which application was contested by the defendant on the ground that defendant has not placed any document on record to CS (Comm.) No. 315/21 Page 18 of 23 Amrish Aggarwal Vs. Bank of India substantiate any dealing of the plaintiff with M/s.HPPL; no relief has been sought against M/s HPPL and M/s. Almex India Pvt. Ltd. is not required to maintain and preserve records after seven years. The defendant can maintain a suit against M/s.Almex India Pvt. Ltd. and M/s.HPPL Ltd. The court was of the opinion that the issue required evidence, hence aforesaid issue was framed.
35. Plaintiff claims that the dispute if any between M/s. Almex India Pvt Ltd and Bank has got nothing to do with this suit as the plaintiff's claim is only qua the lien, which has wrongly been created. In view of this clear stand of plaintiff the fact whether or not credit entry was wrongly made in the account of M/s. Almex India Pvt. Ltd. and M/s.Almex India Pvt. Ltd. as such was liable to repay the amount to the defendant bank, cannot and should not be looked into. However, the plaintiff is also contesting the case on limitation thus raising a dispute i.r.o. entry and is claiming that the amount was rightly credited in the account of M/s.Almex India Pvt. Ltd. trying to put on defendant the burden of procuring documents from a third party M/s. HPPL to prove that the credit entry was not wrongly made and that M/s.HPPL had issued two different cheques for same order. Relevantly, defendant is relying upon its statement of account Ex.D2, wherein on 03.07.2008 cheque no. 809110 of Rs.16,36,947/- is shown returned due to insufficient balance, however, two entries later it is shown as cleared. On 07.07.2008 cheque no. 969133 for the same amount is shown as cleared. Whether or not these two cheques were for the same order could have been proved only by M/s.HPPL. In so CS (Comm.) No. 315/21 Page 19 of 23 Amrish Aggarwal Vs. Bank of India far as cheque no. 809110 is concerned the same was clearly wrongly credited in the account of M/s. Almex India Pvt. Ltd., though the cheque was dishonoured on grounds of insufficient funds.
36. In so far as argument of Ld. Counsel for plaintiff that had the dishonour been communicated to M/s.Almex India Pvt. Ltd. it could have initiated recovery proceedings against M/s.HPPL, the issue cannot be raised by plaintiff in this suit on account of stand taken by himself. Nonetheless for the sake of argument M/s.Almex India Pvt. Ltd., could still have initiated recovery proceedings against M/s.HPPL after acquiring the knowledge of dishonour of cheque and mistaken credit in its account by the bank as and when the bank informed the same to the plaintiff.
37. It is clear that either M/s.HPPL or M/s.Almex India Pvt. Ltd. could have proved whether or not there were two different bills of exactly the same amount for which two different cheques were issued by M/s.HPPL to M/s.Almex India Pvt. Ltd. Plaintiff has stated that it does not have record to show that there were two different bills. It did not allow M/s. HPPL to be added as a necessary party/ proper party. The conduct of plaintiff in this regard is noteworthy he intentionally did not make either of these entities as parties to the suit on the plea that his relief is limited to mandatory injunction and yet is pleading that defendant was not entitled for recovery from M/s.Almex India Pvt. Ltd.
CS (Comm.) No. 315/21 Page 20 of 23 Amrish Aggarwal Vs. Bank of India
38. In Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay (1992) 2 SCC 524, it was held as under:-
" A necessary party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. The addition of parties is generally not a question of initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case."
39. It is thus held that if the suit is limited to the mandatory injunction part the issue has already been decided against the plaintiff but for conclusion on other averments pleaded in suit M/s.HPPL or M/s.Almex India Pvt. Ltd., who had issued the two cheques and had received the money respectively, were proper parties. Suit is bad for non joinder of proper parties. The issue is decided in favour of defendant and against the plaintiff.
40. Issue No.3:- Whether plaintiff is entitled for a decree of declaration and mandatory injunction as prayed vide prayer (a) & (b)? OPP CS (Comm.) No. 315/21 Page 21 of 23 Amrish Aggarwal Vs. Bank of India
41. In view of the findings on issue no.1 it has been held that plaintiff had stood given security to the cash credit facility provided to M/s.Almex India Pvt. Ltd., in view of Ex.D1, which has been admitted by plaintiff in his cross-examination also and in view of categoric admission of plaintiff that if M/s.Almex India Pvt. Ltd. was unable to clear its dues, defendant bank could have recovered the money from plaintiff, the action of defendant in creating lien on the saving bank account of plaintiff bearing no. 600510100020690 cannot be termed as illegal, void or arbitrary. The plaintiff thus is not entitled for declaration that the act of defendant in creation of lien for an amount of Rs.16,36,947/- in the plaintiff's saving bank account is illegal, void and arbitrary. The plaintiff for same reasons is also not entitled for decree of mandatory injunction directing the defendant to remove the lien.
42. Issue no.4:- Whether plaintiff is entitled for a sum of Rs.3,00,000/-towards damages? OPP & Issue No.5. Whether the plaintiff is entitled for an interest @ 24% per annum on Rs.16,36,947/- from 15.05.2021 till removing of the lien? OPP
43. Since issue no.1 & 3 have been decided against the plaintiff, the plaintiff is not entitled for any damages or interest from the defendant. These issues are decided in favour of defendant and against the plaintiff.
CS (Comm.) No. 315/21 Page 22 of 23 Amrish Aggarwal Vs. Bank of India
44. Issue No.7-Relief:- In view of the findings on issue no.1, 3, 4 & 5 plaintiff is not entitled for decrees, as prayed for. The suit is dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
(ANURADHA SHUKLA BHARDWAJ) District Judge(Commercial Court)-02 South, Saket, Delhi.
Announced in open court on 06.11.2023 CS (Comm.) No. 315/21 Page 23 of 23 Amrish Aggarwal Vs. Bank of India