Delhi District Court
And Also At vs Sh. Prabhakar Kumar Shaw ) on 13 January, 2021
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
RCA Civil DJ ADJ No. 54777/2016
CNR No. DLSW01-003747-2016
IN THE MATTER OF:
M/s ICICI Bank Limited )
(A Banking Company Incorporated )
And Registered under Companies Act, 1956 )
Having its Registered Office at: )
Land Mark, Race Course Circle )
Vadodara - 390007 )
And Also at:
E - Block, Videocon Tower )
Jhandewalan Extension )
New Delhi - 110085 )
Through its Authorized Representative )
Sh. Anupam Singh )
... Appellant/Defendant No. 2
Versus
Sh. Prabhakar Kumar Shaw )
S/o Sh. Dular Chand Shaw )
R/o C - 29, First Floor )
Sita Puri, Part - I )
Near Nehru Academy School )
New Delhi - 110018 )
... Respondent/Plaintiff
RCA Civil DJ ADJ No. 54777/2016
Page No. 1/13
Mr. Rajesh Kumar, Mr. Saransh Garg, Mr. Punit K. Bhalla and
Ms. Chetna Bhalla, Advocates for the appellant.
Respondent proceeded ex parte1
Date of filing of appeal: 25.10.2013
Date of judgment reserved: 10.12.20202
Date of pronouncement of judgment: 13.01.2021
JUDGMENT
1. ICICI Bank, has preferred the present first appeal under Order XLI read with Section 151 of the Code of Civil Procedure, 1908 (CPC) assailing the ex parte order and ex parte judgment dated 23.01.2012 passed by the Ld. Sr. Civil Judge cum Rent Controller, South West District, Dwarka Courts, Delhi (hereinafter "trial court") in a civil suit titled as Prabhakar Kumar Shaw v. ICICI Bank Ltd. & Anr. - CS No. 242/2011.
2. The facts of the case are that one Prabhakar Kumar Shaw preferred a suit for damages seeking ₹2,00,000/- (Rupees Two lakhs only) against the ICICI Bank through its director/chairman3 and also through its manager,4 on the ground that ICICI Bank filed a false complaint case against him under Section 138 of the Negotiable Instruments Act, 1881 1 Vide order dated 07.12.2019 passed in RCA Civil DJ ADJ No. 54777/2016 2 The arguments were advanced by the learned counsel for the appellant through video conferencing on 10.12.2020.
3Impleaded as defendant No. 1 before the trial court.
4Impleaded as defendant No. 2 before the trial court. RCA Civil DJ ADJ No. 54777/2016 Page No. 2/13 (hereinafter "NI Act"), which he had to defend for three years, and pen- ultimately came out vindicated by an acquittal vide judgment dated 17.03.2011. Prabhakar Kumar Shaw based his claim against ICICI Bank that him being a fruit seller, had to defend a false case for three years, which resulted in loss of earnings and profits, loss of reputation, conveyance charges in contesting a false case, litigation expenses, bodily and mental suffering caused to him on account of wrongful acts on the part of ICICI Bank. The defendant Nos. 1 and the defendant No. 2 failed to appear before the trial court despite service of summons and were proceeded ex parte on account of default in appearance on 20.10.2011 and 20.09.2011, respectively. Prabhakar Kumar Shaw led ex parte evidence before the trial court. The trial court dismissed the plaintiff's suit against the defendant No. 1, namely, ICICI Bank Ltd. through its director/chairman for want of cause of action and held the suit maintainable against the defendant No. 2, namely, ICICI Bank Ltd. through its manager, as it found that the complaint under Section 138, NI Act was filed by the defendant No. 2.
3. The trial court declined to grant any relief to Prabhakar Kumar Shaw towards loss of earnings and other profit, loss of reputation and damages on account of bodily and mental sufferings for want of evidence. However, an ex parte order and judgment dated 23.01.2012 was passed by the trial court in favour of Prabhakar Kumar Shaw, holding him entitled for a sum of ₹50,000/- (Rupees Fifty thousand only), out of which a sum of ₹40,000/- as conveyance charges for defending the criminal case for three years and ₹10,000/- as damages on account of mental harassment suffered by him in defending the false case preferred RCA Civil DJ ADJ No. 54777/2016 Page No. 3/13 by ICICI Bank.
4. The present appeal has made a circuitous journey as a first appeal and thus it is relevant to briefly discuss the same for better perspective and clear understanding and just decision. Subsequent to the passing of an ex parte judgment dated 23.01.2012, ICICI Bank preferred an application under Order IX, Rule 13, CPC seeking setting aside of ex parte order and judgment dated 23.01.2012, titled as Prabhakar Kumar Shaw v. ICICI Bank - M.No. 17/2012, which was dismissed by the Ld. Sr. Civil Judge cum Rent Controller, South West District, Dwarka Courts by order dated 17.08.2013. The trial court held that though ICICI Bank is aggrieved by the ex parte order dated 20.09.2011, however, the service of summons was not disputed, but an objection was taken on the ground that the service was not served upon the concerned department. The trial court held that ICICI Bank failed to disclose upon which of its department was the service effected and upon which department, the service ought to have been effected. The trial court found that the record clearly showed that the service of summons had been effected upon the defendant not only through ordinary process, but also registered post. The trial court held the objections lodged by ICICI Bank as meritless, as the onus was upon the bank to send the summons to its concerned department.
5. ICICI Bank challenged the order dated 17.08.2013 passed by the trial court dismissing the application under Order IX, Rule 13, CPC by preferring an appeal under Order XLIII, Rule 1(d) read with Section 151, CPC titled as M/s ICICI Bank Ltd. v. Shri Prabhakar Kumar Shaw - RCA No. 94/2013. The appellate court dismissed the said appeal and upheld the order dated 17.08.2013 by judgment dated 24.09.2013.
RCA Civil DJ ADJ No. 54777/2016 Page No. 4/13
6. Thereafter, ICICI Bank preferred the present appeal i.e., first appeal titled as ICICI Bank v. Prabhakar Kumar Shaw - RCA No. 34/2013 along with an interim application under Section 151, CPC seeking stay of the execution proceedings and an interim application under Section 5 of the Limitation Act, 1963 (hereinafter "Limitation Act") seeking condonation of delay of 632 days in filing of the appeal. The Ld. Predecessor of this court vide order dated 12.08.2014 dismissed the application under Section 5 of the Limitation Act seeking condonation of delay on the failure to show sufficient reasons for condoning the inordinate delay in filing the appeal.
7. ICICI Bank assailed the order dated 12.08.2014 passed by the Ld. Predecessor of this Court before the Hon'ble High Court of Delhi by preferring a second appeal under Section 100 read with Section 151, CPC titled as ICICI Bank Limited v. Prabhakar Kumar Shaw - RSA No. 278/2014.
8. The Hon'ble High Court by order dated 08.10.2015 held that with the two options available to ICICI Bank when it learnt about the passing of the ex parte judgment and decree against it on 12.07.2012, the appellant choose the first option to prefer an application under Order IX, Rule 13, CPC and did not choose the second option of preferring an appeal against the ex parte judgment dated 23.01.2012, the same cannot be grudged against ICICI Bank. The High Court held that ICICI Bank challenged the ex parte judgment and decree dated 23.01.2012 as and when the bank gained knowledge. The High Court also took notice that ICICI Bank also preferred an appeal against the order dated 17.08.2013 on 24.09.2013, within the prescribed period. The High Court in its order RCA Civil DJ ADJ No. 54777/2016 Page No. 5/13 dated 08.10.2015 held that a valuable right, to prefer a first appeal as a statutory remedy should not have been denied and Prabhakar Kumar Shaw could have been compensated by awarding appropriate costs. The Hon'ble High Court set aside the order dated 12.08.2014 and allowed the application under Section 5 of the Limitation Act subject to costs of ₹10,000/- (Rupees Ten thousand only) to be paid to Prabhakar Kumar Shaw before the first appellate court on 20.11.2015.
9. The parties appeared before the first appellate court and the costs of ₹10,000/- (Rupees Ten thousand only) was paid by ICICI Bank to Prabhakar Kumar Shaw through cheque no. 812024 dated 19.11.2015.
10. On account of default of appearance on behalf of the appellant, the appeal was dismissed in default by order dated 13.09.2017. ICICI Bank preferred an application titled as ICICI Bank Ltd. v. Prabhakar Kumar Shaw - Misc. No. 390/2017, under Order IX, Rule 4 and 9, CPC (sic) seeking restoration of the appeal. On perusal of the case record it is observed that is observed from order sheet dated 01.05.2019 passed in ICICI Bank Ltd. v. Prabhakar Kumar Shaw - Misc. No. 390/2017 that there was no appearance on behalf of the applicant/appellant, namely, ICICI Bank and the application was dismissed in default for non- appearance and non-prosecution. However, the learned proxy counsel for the applicant/appellant appeared in the post lunch session and the application was restored to its original number and position and the same was adjourned for 01.05.2019.
11. The judicial record further reveals that the case record of ICICI Bank Ltd. v. Prabhakar Kumar Shaw - Misc. No. 390/2017 was merged with the judicial file of ICICI Bank Ltd. v. Prabhakar Kumar Shaw -
RCA Civil DJ ADJ No. 54777/2016 Page No. 6/13 RCA No. 54777/2016 390/2017, whereas no formal judicial order allowing the application ICICI Bank Ltd. v. Prabhakar Kumar Shaw - Misc. No. 390/2017 seeking restoration of the said appeal is found on record as the same was not passed by this court.
12. The position in law is well settled that mistake on part of the court can cause prejudice to none and accordingly, with an application seeking restoration of appeal on record, though preferred by the appellant under Order IX, Rule 4 and 9, CPC (sic) the same being treated as one under Order XLI, Rule 19, CPC, as citing incorrect provision of law shall not dis-entitle a party from the appropriate relief, accordingly, the appeal is re-admitted and the same has been heard on merits.
13. Consequentially, the appeal ICICI Bank Ltd. v. Prabhakar Kumar Shaw -RCA No. 54777/2016 was listed before this court and on account of default in appearance on behalf of Prabhakar Kumar Shaw (respondent herein), this court in exercise of power under Order XLI, Rule 17(2), CPC proceeded the respondent as ex parte and ordered that the appeal be heard ex parte - Vide order dated 07.12.2019.
14. The grounds urged by the appellant assailing the ex parte judgment and decree dated 23.01.2012 passed by the trial court are as under:
(a) the ex parte judgment dated 23.01.2012 passed by the trial court is wrong and erroneous and in complete disregard to the provisions of law;
(b) the ex parte judgment dated 23.01.2012 passed by the trial court is based upon surmises and conjunctures;
(c) the trial court failed to appreciate that ICICI Bank has to recover ₹3,53,137/- out of which ₹2,28,142/- towards the RCA Civil DJ ADJ No. 54777/2016 Page No. 7/13 first loan and ₹1,24,995/- towards the second loan against which the ICICI Bank preferred civil suits, which were pending adjudication before the Ld.Civil Judge, Tis Hazari, Delhi. The trial court failed to appreciate that the suit for damages filed by Prabhakar Kumar Shaw against ICICI Bank was mala fide;
(d) the trial court failed to appreciate that Prabhakar Kumar Shaw though claimed ₹2,00,000/- as damages, however, he failed to quantify the break up of the amount sought by him, which is a sine qua non in a suit for damages;
(e) the trial court passed the ex parte judgment and decree dated 23.01.2012 in complete disregard to the fact that the summons of suit were not duly served upon the ICICI Bank because of which the bank failed to enter appearance and defend the suit;
(f) the trial court erred by adjudicating the matter ex parte without giving an opportunity of being heard to ICICI Bank;
(g) the trial court erred in penalizing ICICI Bank by considering that the criminal complaint filed by the bank against dishonour of cheques furnished by Prabhakar Kumar Shaw to ICICI Bank as mental harassment in complete disregard to the provisions of law;
(h) the trial court failed to appreciate that the complaint case filed by ICICI Bank against Prabhakar Kumar Shaw was dismissed on technical ground;
(i) the trial court erred in awarding damages to Prabhakar RCA Civil DJ ADJ No. 54777/2016 Page No. 8/13 Kumar Shaw on account of defending the complaint filed by the bank without appreciating the fact that Prabhakar Kumar Shaw initiated the suit for taking advantage of the fact that the complaint filed by ICICI Bank was dismissed, and
(j) the trial court erred in penalizing the ICICI bank for its inadvertent mistake by considering as defamation in complete disregard to the provisions of law.
15. Mr. Rajesh Kumar, learned counsel for the appellant submitted that Prabhakar Kumar Shaw filed a suit for damages to the tune of ₹2,00,000/- against the ICICI Bank on the basis that the bank had filed a false criminal case against him under Section 138 of the NI Act, which he had to defend for three years. The learned counsel submitted that not only the trial court failed to appreciate that the complaint case filed by the ICICI Bank was on the cause of action of dishonour of cheques issued by Prabhakar Kumar Shaw towards the discharge of his liability against repayment of loan, but also the complaint case was dismissed for technical reasons.
16. Mr. Kumar, learned counsel for the appellant bank further submitted that the main thrust of the appellant in the present appeal is that service of summons was not effected upon the bank in accordance with law. The learned counsel further submitted that the service of summons was not effected upon the legal department of the ICICI Bank.
17. The learned counsel further submitted that the trial court failed to consider the fact that Prabhakar Kumar Shaw availed two loans from the bank and defaulted in their repayment against which the suits preferred by the ICICI Bank were decreed and execution proceedings, viz. ICICI RCA Civil DJ ADJ No. 54777/2016 Page No. 9/13 Bank v. Prabhakar Kumar Shaw - Ex.No.214/2017 and ICICI Bank v. Prabhakar Kumar Shaw - Ex.No.215/2017 are pending at South West District. The learned counsel further added that those execution proceedings remained unsatisfied till date and are listed for hearing on 22.01.2021.
18. The learned counsel for ICICI Bank concluded his arguments on the note that the ex parte judgment and decree dated 23.01.2021 passed by the trial court is against the provisions of law and the same be set aside and appellant bank be permitted to file its statement of defence and lead evidence before the trial court.
19. I have carefully perused the entire appeal paper book, trial court record of the main suit from which the present appeal arises and deliberated over the submissions advanced by the learned counsel for the appellant.
20. I am of the considered view that the present appeal must fail for the reason that on a specific question being asked to the learned counsel for ICICI Bank that what is the address of the appellant herein, the learned counsel retorted that the office of the appellant bank is situated at Jhandewalan Extension, New Delhi. It is observed from the trial court record that the summons were duly served at the office of appellant bank on 05.09.2011 through Bhawna Chawla. It is further observed that it is not the case of the appellant bank when the service of summons for settlement of issues issued by the trial court were delivered at some other address than the appellant bank's address i.e. E - Block, Videocon Tower, Jhandewalan Extension, New Delhi.
21. Order XXIX, Rule 2, CPC, provides that subject to any statutory RCA Civil DJ ADJ No. 54777/2016 Page No. 10/13 provision regulating service of process, where the suit is against a corporation, the summons may be served either on the secretary or on any director or other principal officer of the corporation or by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business. It is observed that it is not the case of the appellant bank that it does not carry out its business from its Jhandewalan Extension office address i.e. E-Block, Videocon Tower, Jhandewalan Extension, New Delhi.
22. The argument advanced by the learned counsel for the appellant that service was not effected on the legal department of the ICICI Banbk does not take his case any further, as it is admitted fact that the appellant bank does have its office and carries on its business from E - Block, Videocon Tower, Jhandewalan Extension, New Delhi. It is held that the service of summons issued by the trial court was in due compliance of applicable law and the trial court rightly proceeded the appellant herein as ex parte on account of default in appearance despite service through ordinary mode and registered post - vide order dated 20.09.2011. It is also not the case of the appellant bank that the service of summons through registered post was in contravention of Section 27 of the General Clauses Act, 1897. This court finds no impropriety in the trial court having proceeded the appellant bank as ex parte on account of default in appearance.
23. Now, coming to the impugned judgment dated 23.01.2012, this court finds and holds that the trial court has rightly disallowed the claims of the respondent with regard to loss of earnings & other profits, loss of RCA Civil DJ ADJ No. 54777/2016 Page No. 11/13 reputation, damages suffered on account of bodily and mental sufferings. This court finds that the trial court has duly considered the certified copy of the judgment dated 17.03.2011 passed by the Ld. Metropolitan Magistrate (Special Court -14), Dwarka, Delhi in a complaint case titled as M/s ICICI Bank Ltd. v. Shri Prabhakar Kumar Shaw - CC No.16853/20105, wherein the respondent herein was acquitted with regard to the alleged commission of offence under Section 138, NI Act. On perusal of the certified copy of the said judgment dated 17.03.2011, it is observed that not only the grounds urged in the appeal but also the argument advanced by the appellant bank that the complaint case was dismissed on technical ground is misplaced and incorrect. The Ld. Metropolitan Magistrate in his detailed judgment clearly held that the impugned cheque was not presented in the account maintained by the accused (respondent herein) in respect of which the cheque was drawn and the ingredients of Section 138 NI Act were not fulfilled.
24. During the course of arguments, a specific question was put to the learned counsel for the appellant, whether the judgment dated 17.03.2011 passed by the Ld. Metropolitan Magistrate acquitting the respondent herein was challenged before the appellate court, the answer came in negative. Accordingly, this court holds that the ex parte judgment passed by the trial court does not suffer any impropriety and the trial court rightly held that the respondent herein had to defend a complaint case for over three years.
25. In view of the above discussions and observations, I find no merits in the present appeal. Hence, no ground for setting aside and/or 5 Ex.PW1/1 of the trial court record RCA Civil DJ ADJ No. 54777/2016 Page No. 12/13 interfering with the ex parte judgment and decree dated 23.01.2012 passed by the trial court is made out and the same is upheld. Accordingly, the present appeal is dismissed with no order as to costs. All pending interim applications stand dismissed. Decree sheet be drawn accordingly.
26. Let the trial court record be returned with a certified copy of this judgment in compliance of Order XLI, Rule 37, CPC.
27. Appeal file be consigned to record room only after due compliance and necessary action, as per Rules. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2021.01.13 16:26:39 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on January 13, 2021 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi RCA Civil DJ ADJ No. 54777/2016 Page No. 13/13