Delhi District Court
United Bank Of India vs Maruti Udyog Ltd on 25 May, 2010
IN THE COURT OF SHRI BRIJESH KUMAR GARG
ADDL.DISTRICT JUDGE, CENTRAL 18 , DELHI
Suit No: 423/09
Unique Case ID No: 02401C0110512001
United Bank of India , A body corporate
under the Banking (Acquisition and
transfer of Undertakings) , 1970
Having its Registered Office at 16,
Old court House Street, Calcutta
700001 and having one of its branch
at J.C.Das Building
90/8 , Connaught Circus,
New Delhi110001 Plaintiff
Versus
1 Maruti Udyog Ltd.,
Palam Gurgaon Road,
Gurgaon , Haryana
2 Varansi Motors,
Andra Pul Crossing
G.T.Road,
Varansi
3 State Bank of Travancore,
Karol Bagh,
New Delhi110005
4 Sh. Hari Singh
S/o Sh.Harnam Singh,
R/0 12 , Kamla Nagar,
Varanasi , Uttar Pradesh,
Suit No: 423/09 Page 1/11
2
Date of institution : 03.08.2001
Date of reserving judgment : 19.05.2010
Date of pronouncement : 25.05.2010
J U D G M E N T
The plaintiff bank has filed the present suit for recovery of a sum of Rs.4,09,682/ alongwith pendentelite and future interest @ 18% per annum, till its realisation.
2 The facts of the case, briefly stated, are that the defendant No. 4 Hari Singh booked Maruti Omni with defendant No.2 and deposited a demand draft bearing NO.MP/DA 903675 dated 25.6.1998 for a sum of Rs. 2,41,575/ in favour of the defendant No.1 . But, the said demand draft is stated to be false demand draft as the same was issued by V.I.P Road Branch of the plaintiff bank, from the demand draft leaf which was lost from, East Beliaghata Branch of the plaintiff bank . The said draft was forwarded by defendant No.2 to defendant No.1, who in turn, encashed the same and delivered the vehicle to defendant No.2, but, before taking delivery of the vehicle , the said Hari Singh, defendant No.4, cancelled the booking with defendant No.2 and a sum of Suit No: 423/09 Page 2/11 2 Rs1,41,575/ was refunded to him by defendant No.2 by way of cheque and the remaining amount of Rs. 1,00,000/ was paid to him through one Ajit Singh. Vide order dated 1.12.2007 the said Hari Singh was impleaded as defendant No.4 to the present suit but it was disclosed that the proposed defendant Ajit Singh had expired and, therefore no further proceedings were initiated against proposed defendant Ajit Singh.
3 It has been stated in the plaint that the plaintiff bank had filed a complaint about the fraudulent encashment of the demand draft and the forgery committed by defendant No.4 with Police Station , Connaught Place, New Delhi on which case FIR No.521/2000 under Section 420/467/468/471/120 B IPC has been registered on 31.7.2000. 4 It is further stated that the defendants No.1 & 2 are jointly and severally liable to pay the amount of Rs.2,41,575/ to the plaintiff bank, as the said amount was fraudulently encashed by defendant No.1. However, no relief has been sought in the plaintiff against defendant No.3 and it was stated that the defendant No.3 was only a proforma defendant as defendant No.3 was the Collecting Bank through which the fraudulent demand draft was encashed.
5 It is pertinent to mention here that an application under Order 1 Rule 10 read with Section 151 CPC was filed on behalf of defendant No.1 and 2 for deleting their names from the array of parties Suit No: 423/09 Page 3/11 4 and vide order dated 8.10.2008 the said application was partly allowed and the name of defendant No.1 was deleted from the array of parties . However, the said application qua the defendant No.2 was dismissed. 6 It is also relevant to mention that the defendant No.4 was served by way of publication in national newspaper 'Amar Ujala ' vide publication dated 19.5.2008 but nobody appeared on behalf of the defendant No.4 and no written statement has been filed on his behalf and, therefore, vide order dated 29.7.08 the defendant No.4 was proceeded ex parte .
7 It is also relevant to mention that defendant No.3 , who has been arrayed as a proforma defendant was also proceeded ex parte by the ld. Predecesor of this Court, vide order dated 28.11.2007 and ws deleted from the array of parties, vide order dated 8.4.2010. 8 From pleadings of the parties, vide order dated 21.4.2003, the following issues were framed by the ld. Predecessor of this Court, as under:
1 Whether this court has territorial jurisdiction to entertain and try the suit ? OPP 2 Whether the suit is within time ? OPP 3 Whether the suit is bad for non joinder of necessary parties ? OPDs 1 & 2 Suit No: 423/09 Page 4/11 5 4 Whether the plaintiff made any payment against the demand draft fraudulently presented for encash ment ? If so, to what effect? OPP 5 Whether the plaintiff is entitled to recover Rs.
2,41,575/ against the alleged fraudulent demand draft, as prayed for ? OPP 6 In the event of foregoing issue No.5 is decided in favour of the plaintiff, whether the plaintiff is entitled to any interest on the amount? OPP 7 Relief 9 During the course of trial, the plaintiff has examined Sh. Gajinder Prasad Gupta, Manager (Operation) as PW1. But, despite ample opportunities, the defendants No. 2,3 and 4 failed to cross examine this witness and no evidence was led on behalf of the defendants despite opportunities.
10 After completion of trial, Sh. Gaurav Mahajan , Advocate has addressed his arguments. But, none had appeared on behalf of the defendants 2 & 4 to address the final arguments despite opportunities. On 8.4.2010. Sh. Arvind Sinha, Adv. for defendant No.3 had appeared before this court and on his submissions the defendant No.3 was also deleted from the array of parties.
Suit No: 423/09 Page 5/11 6 11 The counsel for the plaintiff had concluded his arguments on 19.5.2010 and an opportunity was granted to the defendant No.2 and defendant No.4 to address the final arguments on or before today i.e. 25.5.2010 but none has appeared on behalf of the defendant No.2 or 4 to address the final arguments and , therefore, I deem it appropriate to decide the present case on merit, on the basis of the material on record. 12 I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the ld. Counsel for the plaintiff, and my finding on various issues are as under:
I S S U E N O : 1 1 Whether this court has territorial jurisdiction to entertain and try the suit ? OPP
13 The onus of proof of this issue lies upon the plaintiff. In support of its contentions, the plaintiff has examined Sh Gajender Prasad Gupta, Manager(Operation), who has deposed that this court has the territorial jurisdiction to try and entertain the present suit, because the forged and fabricated demand draft was encashed at Delhi on 10.8.1998 . But, perusal of the record shows that the allegedly forged demand draft No. MP/DA 903575 dated 25.6.1998 for Rs. 2,41,575/ was deposited by defendant No.4 with defendant No.2 at District,Varanasi , U.P. and the same was forwarded by defendant No.2 to defendant No.1 for encashment. The amount of the demand draft has Suit No: 423/09 Page 6/11 7 been encashed by defendant No.1 , who is situated at District Gurgaon , Haryana . The demand draft was deposited by defendant No.4 , who is the permanent resident of Varanasi , U.P. at Varanasi and the mere fact that the said cheque was cleared through defendant No.3 at Delhi, in the considered opinion of this court, does not confer the territorial jurisdiction upon this Court. From the record it is clear that all the transactions have taken place at Varanasi , U.P., where, the application for booking of the maruti vehicle was made with defendant No.2 and the forged demand draft was deposited at Varanasi , U.P. and the vehicle was to be delivered at Varanasi , U.P. The defendant No.4, who booked the vehicle is a permanent resident of Varanasi , U.P. and he cancelled the booking at Varanasi , U.P. and the amount of booking has been refunded to him by defendant No.2 at Varanasi, U.P. In these circumstances , this issue is decided against the plaintiff and it is held that this court is having no territorial jurisdiction to try and entertain the present suit.
I S S U E N O: 2 2 Whether the suit is within time ? OPP 14 The onus of proof of this issue is also lies upon the plaintiff. In support of its contentions PW1 Gajender Prasad Gupta, Manager (Operation) has categorically stated that the false demand draft bearing Suit No: 423/09 Page 7/11 8 No. MP/DA 903675 dated 25.6.1998 was encashed from defendant No.3 on 10.8.1998. Testimony of this witness has remained unchallenged, uncontroverted and unrebutted . The present suit has been instituted on 3.8.2006 and, therefore, il is well within the period of limitation. This issue is decided accordingly in favour of the plaintiff.
I S S U E N O: 3
3 Whether the suit is bad for non
joinder of necessary parties ? OPDs 1 & 2
15 The onus of proof of this issue lies upon defendants No.1 &
2. In support of their contentions, the defendant no.2 has failed to
examine any witness. Perusal of the record further shows that an
application under Order 1 Rule 10 CPC and under Order 1 Rule 11 read with Section 151 CPC was filed on behalf of defendants No.1 & 2 for deleting their names and the said application was disposed of by the ld. Predecessor of this court vide orders dated 8.10.2008 and the name of defendant No.1 was deleted from the array of parties. The said application, qua the defendant No.2 was rejected. The said order has not been challenged by defendant No.2 till date and has therefore attained the finality .No further observations are required to be given by this Court in this regard. Accordingly, this issue is decided against the defendant No.2.
Suit No: 423/09 Page 8/11 9 I S S U E S N O S :4, 5 AND 6 4 Whether the plaintiff made any payment against the demand draft fraudulently presented for encash ment ? If so, to what effect? OPP 5 Whether the plaintiff is entitled to recover Rs.
2,41,575/ against the alleged fraudulent demand
draft, as prayed for ? OPP
6 In the event of foregoing issue No.5 is decided in favour of the plaintiff, whether the plaintiff is entitled to any interest on the amount? OPP 16 All these three issues are interconnected and therefore I deem it appropriate to decide all the three issues together. The onus of proof of these issues lies upon the plaintiff . In support of its contentions PW1 Gajinder Prasad Gupta, Manager (Operation) has categorically stated that the demand draft bearing No.MP/DA 903675 for Rs. 2,41,575/ purported to have been issued by VIP Road Branch , in favour of defendant No.1 was fraudulently encashed on 10.8.1998 and the said demand draft was tendered by defendant No.2 to defendant No.1 for encashment. The said demand draft was presented on 10.8.1998 for clearing in the Karol Bagh Branch of State Bank of Travancore i.e. defendant No.3 and was erroneously paid by the Connaught Circus Branch of plaintiff on 10.8.1998. The testimony of this witness has remained unrebutted , uncontroverted and unchallenged Suit No: 423/09 Page 9/11 10 and, therefore, this issue is decided in favour of the plaintiff,with the effect that the plaintiff was not required to make the payment of Rs.2,41,575/, the amount of the forged demand draft, to the defendant No.1 or defendant no. 2 and , therefore, the plaintiff is entitled to recover the said amount of Rs.2,41,575/ . However, the record also indicates that the said amount has already been released by defendant No.2 to defendantnop.4, the person who actually booked the vehicle Maruti Omni with defendant No.2 and deposited the forged demand draft with defendant no.2 . It is also clear that before the delivery of the vehicle, defendant no.4 cancelled the booking and received the payment of the booking amount, which was made by him vide forged demand draft dated 25.6.98 and, accordingly issues No.4 and 5 are also decided in favour of the plaintiff accordingly and it is hereby held that the plaintiff is entitled to claim the amount of Rs.2,41,575/from the defendant No.4 only.
17 The nature of transactions between the parties, being business transactions, the interest @ 10% per annum is also awarded in favour of the plaintiff, against defendant no.4 on the principal amount of Rs. 2,41,575/ with effect from 10.8.1998 till the date of its realization. Issue No.6 is decided accordingly, in favour of the plaintiff and against the defendant no.4.
Suit No: 423/09 Page 10/11 11 R E L I E F In view of my finding on issue no.1, I am of the considered opinion that no relief can be granted by this court, in favour of the plaintiff and accordingly, the suit of the plaintiff is hereby dismissed. No order as to costs. Decree sheet be drawn accordingly. File be consigned to record room after due compliance.
ANNOUNCEDIN OPEN COURT BRIJESH KUMAR GARG
25.5.2010 ADDL.DISTRICT JUDGE
CENTRAL18 , DELHI
b
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