Calcutta High Court
Nepal Bangladesh Bank Limited vs Everett (India) Private Limited & Anr on 5 March, 2019
Bench: Soumen Sen, Ravi Krishan Kapur
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ORDER SHEET
APD 576 of 2017
GA 2222 of 2017
With
CS 169 of 2016
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
Nepal Bangladesh Bank Limited
Vs.
Everett (India) Private Limited & Anr.
BEFORE:
The Hon'ble Justice Soumen Sen
The Hon'ble Justice Ravi Krishan Kapur
Date : 5 March, 2019
Appearance:
Mr. S. Banerjee, Adv.
Mr. Biplab Majumdar, Adv.
Mr. Krishna Raj Thakkar, Adv.
Mr. Souvik Kundu, Adv.
Mr. Dipan Sengupta, Adv.
1. The instant appeal is directed against the judgment and decree dated
05.12.2016 passed in an application for judgment on admission.
2. Briefly stated, the plaintiff being the respondent no.1 herein filed the
instant suit praying inter alia for a decree against the defendants jointly and severally for a sum of Rs.32,06,359/- alongwith interest. The claim in the suit arises out of two bank drafts issued by the appellant bank for an aggregate sum of Rs.31,17,435/-. These drafts were issued in favour of the plaintiff towards part settlement of demurrage/detention charges and other 2 expenses. It is alleged in the plaint that the plaintiff in good faith and believing that it would receive payment by encashing the said two drafts issued local delivery and carting orders directing the warehouse borrowers to deliver four containers to one Tiger Breweries Industries Pvt. Ltd. Subsequently, the plaintiff presented the two drafts issued by the appellant bank for encashment with its banker HDFC Bank. However, both the said drafts were wrongly dishonoured and returned unpaid twice on 03.05.2016 and 07.05.2016 respectively due to the reason that "payments had been stopped by the drawer".
3. It is further alleged in the plaint that the plaintiff issued an e-mail on 17.05.2016 to the appellant bank informing them that the drafts issued by them had been dishonoured by them twice. On 18.05.2016, the appellant bank replied to the plaintiff stating they had "stopped payment" of the said two drafts primarily at the request of Tiger Breweries Industries Pvt. Ltd. By a reminder mail, dated 19.05.2016, the plaintiff reiterated its demand to the appellant bank to make payment of the entire value of the said drafts. Hence the instant suit.
4. Pursuant to the filing of the suit, the plaintiff took out an application for attachment before judgment under Order 38 or Rule 5 of the Code of Civil Procedure, 1908. Diverse orders were passed by the Court from time to time but the appellant bank chose to remain absent at all the hearings. In this background, the plaintiff filed an application under Order 12 Rule 6 of 3 the Code of Civil Procedure, for judgment upon admission primarily relying on the two bank drafts issued by the appellant bank and a post suit communication dated 26.07.2016 wherein the appellant bank had inter alia "requested the plaintiff to represent the instrument to the bank in order to realise their pending dues and also intimate the bank after realisation of the same."
5. In passing the impugned judgment and decree the learned Single Judge has relied on the copies of the two bank drafts aggregating to an amount of Rs.32,06,359/- which had been appended to the petition. In addition, the learned Single Judge has placed reliance on the e-mail dated 26.07.2016 issued by the appellant bank wherein there is a clear admission to represent the relevant instruments afresh for payment. Significantly, this e-mail was issued by the appellant bank after the filing of the instant suit. It appears from the impugned decree that the learned Single Judge was satisfied of the fact that the appellant bank had been duly served but had deliberately and intentionally chosen not to appear at the hearing of the application for judgment upon admission. Moreover, in the impugned judgment the learned Single Judge has also recorded that in a previous interlocutory application being G.A No.1966 of 2016 there was aninjunction order restraining the second defendant, who is not a party to the transaction but who had been impleaded because the appellant bank maintained an account with them, from making any payment to the 4 appellant bank without leaving the amount covered by the plaintiff's claim in the instant suit and making a fixed deposit of the said sum.
6. Learned counsel on behalf of the appellant bank contended that since the claim of the plaintiff in the instant suit had been secured by an earlier order of the Court, there could be no prejudice if the matter was remanded back to the Trial Court and the suit heard on merits. He further contended that there is another pending suit filed by Tiger Breweries Industries Pvt. Ltd. pending before this Hon'ble Court and as such there are pending rival disputes which require to be adjudicated upon.
7. It is well settled that the object of the Order 12 Rule 6 of the Code of Civil Procedure is to enable a party to obtain a speedy judgment at least to the extent of admission by the defendant. Before, a Court can pass a decree under Order 12 Rule 6, the admission must be clear, unconditional and unequivocal. The scope and amplitude of the Court under the amended provision has been elaborately discussed in Uttam Singh Duggal & Co. Ltd. Vs. Union of India (2000)7 SCC 120. It has also been held that the provisions of Order 12 Rule 6 of the Code are enabling, discretionary and permissive [Karan Kapali & Other Vs. Lal Chand Public Charitable Trust & Another (2010)4 SCC 753].
8. In the instant case, the learned Single Judge has in passing the impugned decree placed strong reliance on the two bank drafts which had been issued by the appellant bank. Moreover, the learned Single Judge has also 5 placed reliance on the e-mail on 26.07.2016 which was issued by the appellant bank after the initiation of the instant suit wherein the appellant bank had requested the plaintiff to represent the instrument in order to realise their pending dues.
9. I am of the view that two drafts coupled with the e-mail dated 26.07.2017 clearly and unequivocally are acknowledgments of liability of the appellant bank. Moreover, the appellant failed to justify or offer any explanation for issuance of the e-mail dated 26.07.2017 by which the respondent no.1 was requested to represent the demand drafts after the filing of the instant suit. Furthermore, by an order dated 02.09.2016, the learned Single Judge satisfied himself as to whether the appellant bank had been served the copy of the application under Order 12 Rule 6 of the Code of Civil Procedure, 1908. An opportunity was also given to the parties to file their respective pleadings before the Trial Court. Thus, it appears that the appellant bank deliberately and intentionally chose to avoid the Trial Court. The learned Single Judge, has in my view, justifiably found that there was an unequivocal, clear and unambiguous admission of liability by the appellant bank to make payment to the plaintiff.
10. I am of the view that by issuing a draft, every bank undertakes a liability which it is bound to discharge at the instance of the person in whose favour it has issued the draft or any person claiming through him. It would lead to unimaginable uncertainty in the business and the financial 6 world if bank drafts were to be countermanded so easily as has been sought to be done in the instant case by the appellant bank.
11. I find no infirmity in the impugned judgment and decree which warrants any kind to interference whatsoever. There is nothing in the stay petition which demonstrates even a semblance of a legal right or defence which the appellant bank has against the unassailable and admitted claim of the plaintiff. The learned Single Judge justifiably found that the facts constituted sufficient admissions for directing the appellant bank to pay the admitted amount.
12. There is no reason or merit for a remand of any of the issues to trial. In fact, the entire conduct of the appellant bank smacks of wilful malafides. It is evident that the appellant bank has in withholding the payment of the drafts issued by them in favour of the plaintiff not only acted contrary to sound banking norms but has also acted illegally at the behest of their constituent. Neither before the learned Single Judge nor before us is there any pleading much less an explanation so as to substantiate non-payment by the appellant bank to the plaintiff. In the current scenario where the integrity of the financial system in general and banking channels in particular are under ominous dark clouds such conduct of the appellant bank cannot be countenanced.
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13. In the facts and circumstances the instant appeal and the connected stay application are dismissed and the impugned judgment and decree passed by the learned Single Judge is upheld.
14. I further direct that costs of Rs.1,00,000/- (Rupees One lakh) be imposed on the appellant bank to be paid within a period of four weeks from the date of the passing of this order to the State Legal Services Authority, West Bengal and the same shall be earmarked towards 'Mediation'. A copy of this order be forwarded to the Member Secretary Legal Services Authority in order to ensure compliance.
15. APD No.576 of 2017 and GA No.2222 of 2017 shall stand disposed off accordingly.
I agree, (Soumen Sen, J.) (Ravi Krishan Kapur, J.)