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Gujarat High Court

Sanjay Hiralal Shah vs H D F C Bank Ltd....Opponent(S) on 27 April, 2015

Author: Akil Kureshi

Bench: Akil Kureshi, Vipul M. Pancholi

          C/MCA/1042/2015                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      MISC. CIVIL APPLICATION (FOR ORDERS) NO. 1042 of 2015

                     In FIRST APPEAL NO. 3136 of 2011

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                     SANJAY HIRALAL SHAH....Applicant(s)
                                  Versus
                       H D F C BANK LTD....Opponent(s)
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Appearance:
PARTY-IN-PERSON, ADVOCATE for the Applicant(s) No. 1
==========================================================

         CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
                and
                HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

                              Date : 27/04/2015


                               ORAL ORDER

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI) This review petition is filed by the original plaintiff-appellant and argued by himself. Plaintiff had filed civil suit seeking recovery of a total sum of Rs.7,08,10,040/-, which included a sum of Rs.6.65 cr. covered under six negotiable instruments issued by Charotar Nagrik Sahkari Bank Limited with interest. The case of the plaintiff was that the said Bank had entrusted the task of procuring deposits worth Rs.200 crores upon a promise for payment of commission at the rate of 6% on the deposits he may obtain. The trial court raised several issues, and answered all of them in the negative, and resultantly dismissed the suit. Central issue was whether the negotiable instruments were in the nature of demand drafts or bank cheques.

2. The plaintiff carried the matter in appeal. This Court by judgment dated 24.11.2014 dismissed the appeal holding that the negotiable instruments were in the nature of cheques, and therefore liable to stop payment instructions, and not demand drafts payable on demand. The judgment was carried in appeal by the unsuccessful appellant. The Supreme Court, however, summarily dismissed the appeal by order dated 16.3.2015. This review petition is thereupon filed.

3. The applicant vehemently contended that the judgment of the trial court was based on misrepresentations from the Bank and on fraud. He, therefore, submitted that a decision, which is founded on fraud perpetrated by the respondent is open to questioning at any stage, and therefore be recalled. He relied on the following two decisions of the Supreme Court:

(1) A.V. Papayya Sastry and others Vs. Government of Andhra Pradesh and others reported in AIR 2007 SC 1546. (2) State of Punjab Vs. Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770

4. Without going into the correctness or propriety of entertaining the review petition, once against the judgment of the High Court Special Leave Petition has been dismissed, we do not find any merits in this review petition. All issues were presented before the High Court, and after detailed arguments were considered threadbare, independent reasons were assigned to confirm the decision of the trial court. Indisputably, the Bank had issued instructions for stop payment. According to the plaintiff, however, being demand drafts, such instructions could not have been issued. It is on this background, Court examined the correctness of the judgment of the trial court and came to the conclusion that such instruments were not demand drafts, but account payee cheques always Page 2 of 3 C/MCA/1042/2015 ORDER subject to stop payment instructions.

5. We do not see any fraud being committed by the defendants. Reliance on the decision of the Supreme Court in the case of Davinder Pal Singh Bhullar (supra) is not on the point at all. It was a judgment rendered in the background of criminal proceedings, and no portion of the judgment would apply to the present case. In case of A.V. Papayya Sastry and others (supra), in paragraph No. 39, the Supreme Court reiterated the well accepted principle that the principle of merger of the judgment of the lower court into the decision of the Supreme Court which would be the law of the land under Article 141 of the Constitution, namely if it is established that the order was obtained by practicing fraud. This general principle cannot be applied in abstract without matching the facts on the record. In the result, review petition is dismissed.

(AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) sndevu Page 3 of 3