Delhi District Court
M/S Hindustan Refrigeration & ... vs The Indian Bank Reported As Air 1987 on 3 March, 2014
IN THE COURT OF SH. PITAMBER DUTT; AD&SJ(CENTRAL)-11,DELHI
Suit No. 157/08
Unique Case ID No.: 02401C0531162008
Punjab National Bank
A body Corporate constituted under the Banking
Companies ( Acquisition & Transfer of Undertaking)
Act, 1970 having its Head Office at 7, Bhikaji Cama
Place, New Delhi and inter alia one of its Branch
office at Yamuna Vihar, Delhi
.....P la i n t i f f
Versus
1. M/s Hindustan Refrigeration & Electronics
through its Prop. Shri Promod Kumar Sharma
B-127, 100 ft. Road,
Hardev Puri, Delhi- 110093
2. Shri Promod Kumar Sharma
Proprietor of M/s Hindustan Refrigeration & Electronics
B-127, 100 ft. Road
Hardev Puri, Delhi- 110093
Also at
C/o Metro Refrigeration and Electronics
1449/7, Durgapuri Chowk, Durgapuri, Shahdra,
Delhi-32
3. Delhi Consumer's Co-operative Wholesale Store Ltd
Karampura, Road, Moti Nagar,
New Delhi- 110015
.....D e f e n d a n ts
Date of Institution of Suit : 10.04.2008
Date when reserved for orders : 06.02.2014
Date of Decision : 03.03.2014
JUDGMENT
1 Vide this judgment I shall decide the suit for recovery of Rs.3,97,156/- filed by the plaintiff against the defendant. The brief facts necessitated in filing the present suit are given as under:-
Suit No. 15708 1/142 That the plaintiff is a body corporate constituted under the Banking Companies ( Acquisition & Transfer of Undertaking) Act, 1970. The defendant No. 1 is the proprietorship concern of defendant no. 2 who was having a Cash Credit Account No. 42 with the plaintiff bank. He was also availing a Cash Credit ( Hyp) Limit of Rs. 20 lacs. The defendant no. 3 was maintaining a current account no. CA-42 with plaintiff. The defendant no. 3 deposited Rs.1,10,000/- in cash in their account on 11.04.2005 and filled a deposit slip. They also deposited cash amount of Rs. 1,61,000/- in their account on 23.04.2005.
3 There was similarity of account No. in the account of defendant no. 2 and defendant no. 3, therefore due to inadvertent error and mistake on the part of plaintiff's employees, the afore mentioned amount was wrongly credited in the account No. C.C. 42 of defendant no. 2 in stead of in the account of CA-42 of defendant no. 3. The defendant no. 1 & 2 were regularly operating their accounts with the plaintiff and getting regular statement of account but they had not pointed out those two wrong deposit in his account. The said amount of Rs. 2,71,000/- was not of defendant no. 2 and he was not entitled for the said amount.
4 The defendant no. 2 has written a letter dated 12.12.2005 about the adjustment of his account and requested for cancellation of their limit and release of security. The said request was acceded by the plaintiff. The defendant no. 1 & 2 with malafide intention closed their loan account No. CC-42 on 27.12.2006 at that time the plaintiff was not aware about the wrong credit of Rs. 1,10,000/- and Rs. 1,61,000/- respectively.
5 The defendant no. 3 informed the plaintiff vide letter dated 11.02.2007 that they had deposited Rs. 1,10,000/- and Rs. 1,61,000/- in their account No. but same were not shown in the statement issued by the plaintiff. The defendant no. 3 requested the plaintiff to credit the aforesaid amount in their account. On Suit No. 15708 2/14 receipt of the said letter, the plaintiff verified its record and detected the mistake that the said amount was wrongly credited in CC account No. 42 in stead of CA-42. The plaintiff immediately called defendant no. 2 telephonically and informed him about the said fact. The plaintiff regularly requesting defendant no. 2 to deposit the aforesaid amount which he withdrew unauthorisedly, but, defendant no. 2 has not acceded the said request.
6 The plaintiff has written a letter dated 08.06.2007 to defendant no. 2 requesting him to deposit the said amount. The said letter also did not yield any result. Having left with no alternative plaintiff served a legal notice dated 29.08.2007 upon defendant no. 1 & 2 followed by another legal notice dated 16.11.2007. Despite the receipt of letter and legal notice, defendant no. 1 & 2 have not returned the amount of Rs. 2,71,000/-. The defendant no. 2 has replied letter dated 08.06.2007 vide letter dated 21.12.2007 in which he denied his liability to pay the demanded amount. On the basis of the aforesaid averment, present suit has been filed for adjudication.
7 Pursuant to the summons defendant no. 1 & 2 appeared and filed their written statement taking preliminary objection that suit is not maintainable in its present form, that no cause of action accrue in favour of plaintiff and against the defendants, that suit is bad for mis-joinder and non-joinder of parties, that plaintiff cannot be allowed to take the advantage of its own wrong.
8 On merit it is averred that defendant no. 1 & 2 closed their CC account No. 42 after clearing all the outstanding in the account as per the demand and the plaintiff also returned all the securities, sale deed of property and LIC polices. It is denied that defendant no. 3 deposited Rs. 1,10,000/- on 11.04.2005 and Rs. 1,61,000/- on 23.04.2005. It is also denied that aforesaid amount was wrongly credited in account no. CC-42 of defendant no. 1 & 2. It is stated that business of plaintiff firm was closed on 31.03.2005 and plaintiff gave clearance and no Suit No. 15708 3/14 dues remained outstanding. It is denied that defendants withdrew amount unauthorisedly and closed CC 42 on 27.12.2006. It is further stated that defendants are not liable to pay the amount and all the allegations of the plaintiff that amount of Rs. 2,71,000/- was mis-appropriated is illegal and defamatory. All other averments have also been denied. It is prayed that suit be dismissed with cost.
9 The ld. Predecessor of this court at the time of registration of the suit was pleased not to issue summons of the suit to defendant no. 3, consequently none put appearance on behalf of defendant no. 3.
10 The Plaintiff has filed replication to the written statement of defendant no. 1 & 2 thereby reiterated the averment made in the plaint and denied the averment made in the written statement.
11 On the basis of the pleadings of the parties the Ld. Predecessor of this court vide order dated 08.09.2009 has framed the following issues for adjudication:-
1. Whether the suit is not maintainable in the present form? OPD
2. Whether the suit is without any cause of action? OPD
3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
4. Whether the plaintiff is entitled to a decree for recovery of Rs. 3,97,156/- as prayed? OPP
5. Whether the plaintiff is entitled to any interest on the suit amount, if so, at what rate and for what period? OPP
6. Relief
12 In order to prove its case, plaintiff has examined Sh. Harish Kumar as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the copy of GPA as Ex. PW-1/1, Account opening form of defendant no. 2 as Ex. PW-1/2, Deposit slip of defendant no. 3 as Ex. PW-1/3 & 4, Counter slip of the aforesaid deposit as Ex. PW-1/5 & 6, Statement of account Suit No. 15708 4/14 of defendant no. 3 as Ex. PW-1/7, Statement of defendant no. 1 & 2 as Ex. PW-1/8 & 9, Letter dated 28.11.2006 as Ex. PW-1/11, Letter dated 11.02.2007 as Ex. PW-1/12, Letter dated 08.06.2007 as Ex. PW-1/13, Legal notice dated 29.08.2007 as Ex. PW-1/14, Notice dated 16.11.2007 is Ex. PW-1/15, Registered UPC postal receipt Ex. PW-1/16 to 19, A.D card Ex. PW-1/20 to 22, Letter of defendant dated 21.12.2007 as Ex. PW-1/23, Criminal complaint dated 12.02.2008 Ex. PW-1/24.
13 The defendant no. 2 has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief.
14 I have heard both the ld. counsel for the parties and perused the pleadings and evidence led on record. My issuewise finding is as under:
15 Issue No. 1: Whether the suit is not maintainable in the present form? OPD The defendants have taken a plea that the suit is not maintainable in the present form. The plaintiff has controverted the said plea in the corresponding para of the replication.
16 The onus to prove the fact that the suit is not maintainable in the present form is upon the defendants but they have not pointed out any infirmity in the form of the suit. They have also not mentioned as to how and in what manner the form of the present suit is not proper and the suit is liable to be dismissed on this ground.
17 In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that the suit is not maintainable in the present form. The defendants have failed to discharge the onus of issue no. 1, same is accordingly decided against the defendants.
Suit No. 15708 5/1418 Issue No. 2: Whether the suit is without any cause of action? OPD The defendants have taken a plea that no cause of action ever accrued in favour of the plaintiff and against the defendants. The plaintiff has controverted the said plea in the corresponding para of the replication.
19 The plaintiff has filed present suit for recovery of Rs. 3,97,156- against defendant no. 1 & 2 on the ground that defendant no. 2 was having his current account no. 42 with the plaintiff. The defendant no. 3 was also having CA Account no. 42 with plaintiff bank. The defendant no. 3 had deposited a sum of Rs. 2,61,000- in their account no. CA 42 but due to the mistake of plaintiff's employee, the said amount was credited in the account of the defendant no. 2. This fact was came to the knowledge of the plaintiff on 11.02.2007 when defendant no. 3 wrote a letter in that regard. The plaintiff verified the record and came to know that wrong entry was made into the account of defendant no. 2 and defendant no. 1 & 2 have failed to pay the said amount despite request.
20 The above fact thus clearly shows that plaintiff has filed the suit for recovery against defendant no. 1 & 2 on the ground that due to some mistake the amount deposited by defendant no. 3 in their account was credited into the account of defendant no. 2 who has failed to repay the said amount despite request. The plaintiff thus has cause of action for filing the present suit.
21 In view of the above facts and circumstances, I am of the considered view that plaintiff has cause of action for filing the present suit against the defendants. The defendant no. 1 & 2 have failed to discharge the onus of issue no.2, same is accordingly decided against them.
22 Issue no. 3: Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD The defendant no. 1 & 2 have taken a plea that suit is bad for mis-joinder and non-joinder of necessary parties in para 4 of their preliminary objection. The Suit No. 15708 6/14 plaintiff has controverted the said plea in the corresponding para of the replication.
23 The defendant no. 1 & 2 have taken a plea that suit is bad for mis-joinder of necessary parties, but they have not pointed out as to which of the necessary party has not been impleaded in the present suit. The defendant no. 1 & 2 have also failed to point out as to which of the parties has not properly impleaded in the present suit. The defendants have thus failed to substantiate their plea that the present suit is bad for mis-joinder and non-joinder of necessary parties.
24 In view of the above facts and circumstances, I am of the considered view that defendant no. 2 has failed to prove on record that the suit is bad for mis- joinder and non-joinder of necessary parties. The defendant no. 1 & 2 have failed to discharge the onus of issue no. 3 same is accordingly decided against them.
25 Issue no. 4: Whether the plaintiff is entitled to a decree for recovery of Rs.3,97,156/- as prayed? OPP The plaintiff has taken a plea that defendant no. 1 & 2 have their cash credit account No. 42 with plaintiff and were availing cash credit limit of Rs.20 lacs. They closed their account on 27.12.2006. The defendant no. 3 was also having current account no. CA 42 with plaintiff. The defendant no. 3 deposited Rs. 1,10,000- in cash in their account on 11.04.2005 and Rs. 1,61,000/- on 23.04.2005 but due to inadvertent error and mistake of the plaintiff's employee the said amount was wrongly credited into the account of defendant no. 2. The said account was not belonging to defendant no. 2 and he was not entitled for the said amount.
26 The plaintiff further taken a plea that defendant no. 3 informed them vide letter dated 11.02.2007 about the said fact, then plaintiff verified that fact and came to know that said amount was wrongly credited into the account of Suit No. 15708 7/14 defendant no. 2. The plaintiff made request to defendant no. 1 & 2 to deposit the said amount but they failed to do so despite various request and service of legal notice. As per the plaintiff defendant no. 1 & 2 are liable to pay a sum of Rs. 3,97,156/- to the plaintiff till the filing of the suit.
27 The defendant no. 1 2 have admitted that they were having CC account No. 42 with the plaintiff bank and was availing cash credit limit up to Rs. 20 lacs, The defendants have pleaded that they closed their CC account after clearing all the outstanding dues against their account as per the demand of the plaintiff who released all the securities of the defendants. As per the defendants they are not liable to pay any amount to the plaintiff as claimed.
28 In order to substantiate their plea both the parties have led their respective evidence.
29 An examination of the pleading and evidence led on record clearly shows that defendant no. 1 & 2 were having their current account no. 42 with the plaintiff and were availing cash credit facility up to Rs. 20 lac. The defendant no.2 closed his account vide letter dated 26.11.2006 Ex. PW-1/11 and after adjusting the claim against the said account the plaintiff permitted the defendants to close their account and released the security amount. The defendant no. 3 was also having his current account No. CA 42 with the plaintiff. They deposited a sum of Rs. 1,10,000/- vide bank deposit slip dated 11.4.2005 Ex. PW-1/3 as well as Rs. 1,61,000/- vide bank deposit slip dated 23.04.2004 Ex. PW-1/4. The said amount deposited by defendant no. 3 was not shown in their statement of account, thus defendant no. 3 wrote a letter to the plaintiff dated 22.02.2007 Ex. PW-1/12 in this regard and thereafter plaintiff verified the said fact and come to know that the said amount was wrongly credited into the account of defendant no. 1& 2 due to similarity of account number.
30 The plea of the plaintiff is that an amount of Rs. 1,10,000/- and Rs.
Suit No. 15708 8/141,161,000/- was deposited by defendant no. 3 in cash in CA No. 42 but due to some inadvertent mistake, the said amount was credited into the account of defendant no. 2. It is not the case of the plaintiff that the amount of Rs. 2,71,000/- was towards the liability of defendant no. 1 & 2. The claim of the plaintiff is that said amount was deposited by defendant no. 3 which was inadvertently credited into the account of defendant no. 1 & 2. When plaintiff come to know about the said fact they wrote a letter dated 08.06.2007 Ex. PW-1/13 to defendant no. 2 vide that letter plaintiff called upon the defendants to pay the said amount. The said letter was duly served upon the defendants who sent his reply dated 21.12.2007 Ex. PW-1/23.
31 In the said reply the defendant has denied his liability of Rs. 2,71,000/- towards the plaintiff. But, surprisingly in the entire reply the defendant has nowhere stated that the amount of Rs. 1,10,000/- and Rs. 1,61,000/- as shown in their statement of account Ex. PW-1/8 was deposited by them and not by defendant no. 3. Even in the entire written statement defendant no. 1 & 2 have simply denied their liability but they have not stated anywhere that the said amount was deposited by them in their account and has not been wrongly shown in the statement of account Ex. PW-1/8.
32 The plaintiff in para 5 of the plaint has categorically pleaded that " defendant no. 3 was maintaining current account CA-42 and has deposited Rs. 1,10,000/- cash on 11.04.2005 and filled up a deposit slip for his account no. CA-42 on the said date. Similarly a cash deposit of Rs. 1,61,000/- was made by defendant no. 3 in his account CA-42 on 23.04.2005". The plaintiff has further mentioned in para 6 of the plaintiff that, " there was similarity of account no. in the aforesaid two account i.e CC42 and CA-42 hence due to inadvertence error and mistake on the part of the employee of the plaintiff bank the aforesaid amount of Rs. 1,10,000/- and Rs. 1,61,000/- was wrongly credited in the account of CC-42 of defendant Suit No. 15708 9/14 no. 1 & 2 instead of credited the same in the account no. CA-42 of defendant no. 3".
33 The defendant No. 1 & 2 have simply denied the averment of para 5 & 6 in the corresponding para of the written statement but has not mentioned that the said amount of Rs. 1,10,000/- and Rs. 1,61,000/- was deposited by defendant 2 in his account in cash and not by defendant no. 3. The defendants have also not averred anywhere that the said amount was rightly entered into their statement of account and was belonging to them.
34 The plaintiff has examined Sh. Harish Kumar, from Punjab National Bank as PW-1 who reiterated the above fact in Para 7 & 8 of his examination in chief. PW-1 has been throughly cross-examined by ld. counsel for defendant no. 1 & 2 but the testimony of PW-1 made by him in Para 7 & 8 has remained unrebuted and uncontroverted. The ld. counsel for the defendant has not given any suggestion to PW-1 that Rs. 1,10,000/- and Rs. 1,61,000/- was not deposited by defendant no. 3 into their account vide receipt Ex. PW-1/5 & 6. He has also not given any suggestion that the said amount was not wrongly credited into their account in statement of account as Ex. PW-1/8. The ld. counsel for the defendant has further not given any suggestion that the above amount of Rs. 2,71,000/- was not deposited by defendant no. 3 but was deposited by defendant no. 1 & 2 and was rightly credited into their account. In the absence of any cross-examination in these aspect the plea taken by PW-1 in Para 7 & 8 of his examination in chief remained uncontroverted.
35 In order to answer the claim of the plaintiff, defendant no. 2 has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief Ex. DW-1/X. DW-1 in his examination in chief nowhere mentioned that amount of Rs. 2,71,000/- was deposited by him in his account and not by defendant no. 3. During cross-examination he denied that the closed Suit No. 15708 10/14 his account CC-42 as two wrong deposit of Rs. 1,10,000/- on 11.04.2005 and Rs. 1,61,000/- on 23.04.2005 were credited. He also denied that alleged amount of Rs. 2,71,000/- belongs to defendant no. 3. He also denied that alleged amount does not belong to him. He also denied that he is liable to pay Rs. 2,71,000/- alongwith interest to the plaintiff.
36 The claim of the plaintiff is that the amount of Rs. 2,71,000/- was deposited by defendant no. 3 in cash vide receipt Ex. PW-1/3 to 6 but the said amount was wrongly credited into the account of defendants as shown in statement of account Ex. PW-1/8. The defendant no. 1 & 2 have only taken a plea that they closed their account after clearing all their liability towards their account. It is pertinent to mention that present suit has not been filed by the plaintiff for seeking recovery of any amount arising out of their CC account no. 42 of defendant no. 1 & 2 which was closed on 27.12.2006.
37 The suit has been filed by the plaintiff on the ground that the amount of Rs. 2,71,000/- was in fact deposited by defendant no. 3 in their account no. CA-42 vide deposit slip Ex. PW-1/3 to 6 but the said amount was wrongly credited into the account of defendant no. 1 & 2 due to similarity of the account. The defendant no. 2 has neither placed any material on record which can show or suggest that said amount of Rs.2,71,000/- was deposited by him in his account nor he has made any averment that the said amount was deposited by him and was rightly credited into his account.
38 The aforesaid fact thus clearly shows that the plaintiff has proved on record that the amount of Rs. 2,71,000/- was deposited by defendant no. 3 in their account no. CA 42 but same was wrongly credited into the account of defendant no. 2 being account no. CC 42. The said amount was thus credited into the account of defendant no. 2 under mistake and defendant no. 2 was liable to return back the said amount as provided under Section 72 of Indian Contract Suit No. 15708 11/14 Act which reads as under:-
" Liability of a person to whom money is paid, all thing delivered by mistake or under coercion. The person whom money has been paid or anything delivered by mistake or under coercion must repay or return it".
39 A perusal of Section 72 of the Indian Contract Act clearly shows that if a person has received any money under mistake then he is liable to repay or return the said amount to the person whom it belongs to. The Hon'ble Karnataka High Court in S.Kotrabasappa Vs The Indian Bank reported as AIR 1987, KARNATAKA 236 has held, " that a person whom money is paid by mistake is bound to repay or return it vide Section 72 of the Contract Act. He would also be liable to pay interest under Interest Act till date of filing of the suit and further to pay from date of suit till realization under Section Section 34 (1) of CPC."
40 In the instant case defendant no. 3 had deposited the amount of Rs. 2,71,000/- in their CA account no. 42 in cash vide deposit slip Ex. PW-1/3 to 6, however, the said amount was wrongly credited into the account of defendant no. 2 who was having CC Account no. 42 with the plaintiff at that time and due to similarity of the account number the said amount was wrongly credited into the account of defendant no.2. The defendant no. 2, in whose account the said amount was wrongly credited was under an obligation to point out to the plaintiff that said amount was wrongly credited in his account and was required to return the said amount as provided under Section 72 of Indian Contract Act. But instead of returning the said amount the defendant no. 1 & 2 have chosen to close their account without informing the plaintiff that an amount of Rs. 2,71,000/- was wrongly credited in their account, therefore, defendant no. 1 & 2 are liable to pay the said amount to the plaintiff.
41 In view of the above facts and circumstances, I am of the considered view that the amount of Rs. 2,71,000/- was deposited by defendant no. 3 in their Suit No. 15708 12/14 current C.A 42 but same was wrongly credited into the account of defendant no.
2. The defendant no. 3 made a complaint in that regard, pursuant to which plaintiff made the said loss of defendant no. 3 good. The defendant no. 1 & 2 were not entitled to retain the said amount, and thus they are liable to pay the amount of Rs. 2,71,000/- to the plaintiff. The plaintiff has successfully discharge the onus of issue no. 4, same is accordingly decided in favour of the plaintiff.
42 Issue No. 5: Whether the plaintiff is entitled to any interest on the suit amount, if so, at what rate and for what period? OPP The plaintiff has claimed interest over the said amount. While deciding issue no. 4 I have already held that plaintiff is entitled to recover a sum of Rs. 2,71,000/- from the defendant no. 1 & 2 which was wrongly credited into their account. The defendant no. 2 was under legal obligation to return the said amount to the plaintiff but he failed to do so. The defendant no. 2 has thus withheld the legally recoverable amount of the plaintiff without any reasonable cause, thus made himself liable for the interest.
43 The duty of the defendant to return this amount has arisen on when the said amount was wrongly credited into his account or at best after receiving the letter dated 08.6.2007 Ex. PW-1/13 hence I deem it fit and proper to direct defendant no. 1 & 2 to pay interest @ 9% p.a ( Simple) from 08.06.2007 till the date of filing of the suit. The Defendant no. 1 & 2 shall also be liable to pay interest over the amount of Rs.2,71,000/- @ 6% p.a from the date of filing of the suit till actual realization under Sub Section 1 of Section 34 of CPC as mistaken credit cannot be characterised as commercial transaction falling within the purview of proviso to sub Section (1) of Section 34 of CPC. Issue no. 5 is accordingly decided in favour of the plaintiff.
44 Relief In view of the above, the suit filed by the plaintiff against the defendant no. 1 & 2 is decreed with cost. A decree for recovery of Rs. 2,71,000/-
Suit No. 15708 13/14is passed in favour of the plaintiff and against defendant no. 1 & 2 alongwith interest @ 9% p.a (simple) from 8.6.2007 till the date of filing of the suit. The plaintiff shall also be entitled for interest over the principal amount @ 6%p.a ( simple) from the date of filling of the suit till its actual realization. Decree Sheet be accordingly prepared. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
On the 3st March, 2014 Additional District Judge
Delhi
Suit No. 15708 14/14