Allahabad High Court
Deen Dayal Kayan vs Canara Bank, A Nationalized Bank on 2 December, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 1122 of 2019 Appellant :- Deen Dayal Kayan Respondent :- Canara Bank, A Nationalized Bank Counsel for Appellant :- Sudhanshu Kumar,Swapnil Kumar Hon'ble Vivek Agarwal,J.
Heard Sri Sudhanshu Kumar, learned counsel for the appellant.
This second appeal under Section 100 C.P.C. has been filed by the appellant being aggrieved by judgment and decree dated 09.09.2019 and 20.09.2019 passed by the Court of Additional District Judge, Court No. 13, Agra in Civil Appeal No. 66 of 2015 (Deen Dayal Kayan vs. Canara Bank).
Brief facts leading to the present appeal are that plaintiff had filed a suit against the Bank claiming that since he had made a fixed deposit receipt with the Lakshmi Commercial Bank Ltd. which has now merged with Canara Bank as per the directions of the High Court passed in First Appeal No. 193 of 1982 on 17.04.1984, therefore, he is entitled to interest @ 12% on such fixed deposit receipt made with the bank for a sum of Rs. 1,50,000/- as there was a direction of the High Court to calculate interest @ 12% on such amount of fixed deposit receipt.
This contention of the plaintiff has been discarded by the Trial Court as well as the First Appellate Court.
Learned counsel for the appellant submits that it is apparent from the order sheet dated 10.09.2018 that one application as was filed by him under Order 41 Rule 27 to bring on record order dated 03.02.2015 whereby First Appeal No. 193 of 1982 was withdrawn by the appellant and liberty was extended in favour of the respondent i.e., the present appellant to get return of the fixed deposit receipt, deposited by him in terms of the Court order dated 22.09.1982 was though required to be considered at the time of final hearing but such application has not been considered by the First Appellate Court and therefore, as per the law laid down by Hon'ble Supreme Court in case of Hakam Singh and Another vs. State of Haryana and Others as reported in 2008 (4) AWC 3566 (SC), matter needs to be remanded back to the First Appellate Court for consideration of application under Order 41 Rule 27 of the Code.
Learned counsel for the appellant submits that the First Appellate Court has recorded an incorrect finding that the first appeal is still pending.
After hearing learned counsel for the appellant, when few questions were put to the learned counsel namely when the application under Order 41 Rule 27, which is available on record, was only intending to bring on record the order of withdrawal of the first appeal then what will be its impact on the relief claimed by the plaintiff in the plaint i.e., of granting him interest @ 12% from the date of fixed deposit receipt i.e., 28.08.1982 with quarterly rest and issue a certificate of the correct amount as on date after re-calculating the interest at fixed rate of 12% per annum with quarterly rest. This Court also wanted to know whether fixed deposit receipt was made for perpetuity or there was some duration for which fixed deposit receipt was made. If the fixed deposit receipt was made for a fixed duration and was renewable from time to time then whether the renewal was to be made in accordance with the norms of the Reserve Bank of India prescribing the rate of interest payable on different deposits accepted by the Bank or it will be 12% in perpetuity as claimed by the plaintiff-appellant.
Before adverting to further discussion, few facts needs to be brought on record. Firstly, order passed in First Appeal No. 193 of 1982 reads as under :-
"As directed 11-1-84 no supplementary affidavit has been filed. Learned counsel for the respondent states that his client does not propose to file any supplementary affidavit.
Having heard learned counsel for the parties on the stay vacating application, it is directed that the respondent shall furnish additional Bank guarantee in respect of the interest calculated at the rate of twelve percent per-annum on Rs. 1,50,000/- (one lac fifty thousand) only for an indefinite period. The Bank guarantee should cover the entire interest that may become payable to the appellant in case of the appeal being allowed.
On such Bank guarantee being furnished the respondent would be permitted to transfer his property." This order was passed on 17.04.1984.
As per the plaint averments as are available from Page No. 45 onwards in the present paper book, it is mentioned in Para-6 itself that fixed deposit receipt no. 8352/129/82 is dated 28.08.1982 for indefinite period.
Thus, it is apparent that the fixed deposit receipt was made prior to the order of the High Court in First Appeal No. 193 of 1982 which was passed on 17.04.1984.
A bare reading of the order dated 17.04.1984 gives an unambiguous interpretation that the direction was made by the Hon'ble coordinate Bench of this Court to cover the interest claimed by the appellant in that case @ 12% and it is apparent from the following sentence used in the order i.e., "it is directed that the respondent shall furnish additional Bank guarantee in respect of the interest calculated @ 12% per annum on Rs. 1,50,000/- only for an indefinite period." Thus, a cogent reading of the order dated 17.04.1984 leaves no manner of doubt that the direction was to cover the risk of principal amount of Rs. 1,50,000/- which was subject matter of dispute in First Appeal No. 193 of 1982 between the parties but to also cover the risk of the interest as was claimed by the claimant @ 12% for which additional Bank guarantee was directed to be furnished. Thus, it is apparent that the Court has not prescribed any rate of interest on the fixed deposit receipt as has been sought to be made out a case by the plaintiff.
Plaintiff has not been able to blind fold the courts below but made an unsuccessful attempt before this High Court to raise a plea that as if there was a direction by the High Court to grant interest @ 12% on the fixed deposit receipt made by the appellant by way of security/surety/guarantee for securing the amount in dispute as was the subject matter of the First Appeal No. 193 of 1982.
In view of such facts and the chronology of events, it will be relevant to consider what will be the impact of an application under Order 41 Rule 27 as was filed by the present appellant/plaintiff before the First Appellate Court so to bring on record order dated 03.02.2015, withdrawing First Appeal No. 193 of 1982. Since that order of withdrawal of the appeal has no bearing on the rate of interest on the fixed deposit receipt as has been claimed by the appellant/plaintiff in the suit which has culminated into this second appeal, non-consideration of such fact will have no bearing on the outcome of the suit/appeal. Therefore, even if there is a technical error, but it is not fatal to the case of the appellant, this Court can allow this application under Order 41 Rule 27 even at the second appellate stage and cure such defects. Accordingly, application under Order 41 Rule 27 is allowed at second appellate stage and order dated 03.02.2015 is taken on record.
When order dated 03.02.2015 is taken into consideration, it only authorizes the appellant therein i.e., Matrumal Dhannalal Oil Mill, Hathras to withdraw their first appeal. It further authorizes the respondent i.e., the present appellant to seek return of his fixed deposit receipt. This order has no bearing or consequence as to the rate of interest as applicable on the fixed deposit receipt which is the subject matter of the controversy in the suit from which this second appeal originates.
Therefore, this order dated 03.02.2015 will be of no avail to the appellant inasmuch as it is neither necessary nor germane to the controversy involved in the present appeal which deals with the subject matter of the interest payable to the appellant on the fixed deposit receipt allegedly made by him on 28.08.1982.
It is settled principle of law that plaintiff is required to stand on his own legs, plaintiff has admittedly not filed either the copy of the fixed deposit receipt to show the rate of interest mentioned on it nor the duration mentioned on it on expiry of which it was to be renewed by the Bank. Plaintiff has though placed reliance on the letter written by the Bank Manager of the Lakshmi Commercial Bank Ltd., now merged with Canara Bank- respondent to the Registrar of the Allahabad High Court on 28.12.1981.
Learned counsel for the appellant submits that since this appeal was filed in the year 1982, therefore, it could not have been dated 28.12.1981 but should be subsequent to the date of making of the F.D.R. which is 28.08.1982. Even if this typographical error in the typed copy is ignored and this communication is construed to be that of 28.12.1982 then also nowhere from the letter enclosed by the appellant as was given malaby the Lakshmi Commercial Bank Ltd. to the Registrar supports the case of the appellant that Bank had contracted the interest @ 12% on such fixed deposit receipt for perpetuity. In fact, when the order of the High Court dated 17.04.1984 is read in conjunction with the communication made by the Manager of the Bank to the Registrar of the High Court, it is apparent that there is no mention of rate of interest admissible on such F.D.R. Thus, from discussion made above, it is apparent that plaintiff has used his own imagination to give incorrect interpretation to the order dated 17.04.1984 claiming interest @ 12% on the fixed deposit receipt. There is no mention of rate of interest on the fixed deposit receipt but there is only mention of furnishing of additional Bank guarantee so to cover the claim of interest of the plaintiff in the first appeal on sum of Rs. 1,50,000/- @ 12% which was claimed by the plaintiff in the first appeal and with this clarification and unambiguous reading of the order dated 17.04.1984, it is apparent that the plaintiff has misused the forum of the courts below and this Court by filing plaint and successive appeals merely on the basis of his own fiction. Therefore, this second appeal does not give rise to any substantial question of law but is blatant misuse of the forum provided under the Civil Procedure Code.
Thus, appeal fails and is dismissed.
Order Date :- 2.12.2019 Vikram/-