Inderjeet Singh And Ors. vs Federal Bank Ltd.

J.M. Malik, J

This order shall decide the question of admission and waiver application moved by the appellant. Vide the impugned order dated 11.3.2011, the Presiding Officer, DRT-I, Delhi issued a recovery certificate in the sum of Rs. 42,23,224/- along with pendente lite and future interest @14.75% p.a. and costs against the defendants, namely, Shri Inderjeet Singh and Smt. Harbans Kaur, but the Court suspended interest for the period from 28.9.2005 to 8.5.2006. Some other conditions were also imposed. The brief facts of the case are these. The appellants are exporters. They availed of certain credit facilities from the respondent Bank. To secure the credit facilities, they mortgaged their property bearing No. N-81, Panchsheel Park, New Delhi which is approximately worth Rs. 10 crores.

During the course of export trade, the appellants received a cheque for 75,000 Australian dollars on account of dues payable by one M/s. Hemmi Import-Export. The appellants deposited the cheque with the respondent Bank on 3.8.2005. The Bank credited the account of the appellants with Indian currency equivalent of the Australian dollars. The Bank subsequently informed the appellants that the cheque for Rs. 75,000 Australian dollars was returned dishonoured and sought to reverse the credit already given to the appellants in this respect. The said communication was sent vide letter dated 1.6.2006. The appellants approached the District Consumer Redressal Forum on 12.5.2006, but their, plea was dismissed mainly on the ground that the disputes in question were not covered under the Act.

In the meantime, the Bank issued a notice under Section 13(2) of the SRFAESI Act, wherein it demanded a sum of Rs. 53,11,808/-. Aggrieved by that notice, the appellants filed a writ petition before the Hon'ble High Court. The appellants deposited the admitted amount as per the orders passed by the Hon'ble High Court. The Hon'ble High Court passed the following orders on 21.1.2009:

From the above, it is apparent that the impugned controversy upon which the notice was founded included the petitioner's liability to pay Indian currency equivalent to Aus $ Dollars 75,000. The cheque drawn for the purpose was deposited with the Bank on 3.8.2005. Learned Counsel for the Bank had submitted that message intimating the return of the cheque was received by it on 18.8.2005, credit was accordingly given shortly thereafter. The Bank, however, intimated about reversal of credit on account of dishonour of the cheque about eight months subsequently, in May, 2006. The petitioner is not disputing the liability to pay the balance amount as per its arrangement with the Bank. It is not in dispute that the sum of Rs. 23,79,036/- was deposited by the petitioner as on 3.12.2007. The Bank has also chosen to proceed against the petitioner for recovery of amount before the DRT. The petitioner too has filed a suit against various parties including the Bank that involves determination of the same issues. In these peculiar circumstances, the Court is of the opinion that since factual disputes have to be adjudicated after considering the evidence in regard to the parties' role as well as the petitioner towards liability of payment of the Indian rupee equivalent to Aus $ 75000, the notice in question should not be proceeded with, at least until the outcome of the proceedings before the DRT.

(Emphasis supplied)

Since the petitioner has not apparently filed a counter claim before the DRT, learned Counsel submitted that the same would be done within a period of four weeks. It is further submitted by the respondent Bank that there was a small controversy that a further Rs. 4.61 lakh was payable by the petitioner. To put an end to the controversy, it is hereby directed that petitioner should deposit a further sum of Rs. 2 lakh with the respondent Bank within four weeks as an ad hoc deposit without prejudice to his rights and contentions.

In the above circumstances, the interim order granted on 29th March, 2007 is made absolute. The respondent shall not take any coercive steps pursuant to the impugned notice till the conclusion of the proceedings before the DRT. In case any steps are required to be taken, it shall be guided and bounded by such decision. The petitioner is granted liberty to file counter claim before the DRT within a period of four weeks from today. The DRT shall consider the application and counter claims of the petitioner and render its decision as early as possible, preferably within six months from today. All rights and contentions of the parties hereby served.

The writ petition is disposed of in the above terms.

It is also to be mentioned that at the time of admission of this appeal, the appellants were directed to deposit a sum of Rs. 4 lakh including Rs. 2 lakh as ordered by the Hon'ble High Court.

The learned Counsel for the appellants made the following submissions. The appellants have not obtained any loan from the respondent Bank and as such the respondent Bank cannot claim this amount in these proceedings. The attention of the Court was also invited towards Section 72 of the Indian Contract Act, which reads as under:

Liability of person to whom money is paid, or thing delivered, by mistake or under coercion--A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.

The learned Counsel for the appellants has invited my attention towards the commentaries on Indian Contract Act and has filed a photocopy of the certain Notes and Note No. 12 of the said Notes runs as follows:

(12) For basing claim under Section 72 there should be pleading with regard to the legal injury or prejudice to the plaintiff, unless this is pleaded there is no cause of action. (1990) 28 ECC 279 (2): (1990) 31 (1) Guj. LH 301 (309).

It was argued that there was no plea with regard to legal injury or prejudice to the plaintiff. He also invited the attention of the Court to Sections 105 to 107 of the Negotiable Instruments Act. He also referred to an authority Punjab Industrial Agency Ltd. v. Mercantile Bank of India Ltd., : AIR 1930 Lah. 852. It was argued that the communication regarding dishonour of cheque should have been received within reasonable time.

The learned Counsel also invited my attention towards the Law Lexicon which defines 'negligence' and 'rashness' as well as 'clerical mistake'. Regarding 'negligence' and 'rashness', it has been mentioned in that "One of the ingredients is that there must be duty to take care. The standard of care that the law enjoins governed by the knowledge and skill that the office or occupation requires, by the magnitude of the task and by gravity of the consequences that are likely to ensure if the requisite degree of care is not exercised. Kedarnath v. State of UP, : AIR 1965 All 233, 236 [Penal Code (1860), Section 405]." Regarding clerical mistake, it has been defined as, "An ordinary mistake made by a clerk in copying a legal document. The Court may correct it without the motion by the parties; an inadvertent omission or mistake made in transcribing or otherwise but capable of being corrected". It was argued that the cheque was dishonoured due to the negligence of the Bank, as such, the appellants are not liable to pay any thing.

On the other hand, the Counsel for the respondent invited my attention towards para 2 of its reply on merits, which is reproduced as follows:-

That it is further stated that Appellants duly availed and utilized the above-mentioned facility sanctioned to the Appellants. Apart from non clearance of outstanding dues in this account, a cheque for Australian $ 75,000/- being 001028 dated 28.7.2005 drawn on Australia and New Zealand Banking Group Ltd. deposited by Appellants in the account for collection was dishonoured. However, certain dispute arose between the Appellants and Respondent Bank on this count for which the Appellant had filed consumer complaint before the State Consumer Forum. The same was dismissed vide order dated 20.12.2006 holding that the bona fide mistake on the part of the Bank cannot entitle the appellant for any damages. This finding of the Consumer Forum is final and can not be re-agitated as held by the Hon'ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, : 1995(3) SCC 583. Against the said order the applicant filed appeals before the National Consumer Disputes Redressal Commission which were disposed off upholding the said findings.

The attention of the Court was also invited towards the Agreement for Export Advances. Its para 19 runs as follows:

That the Borrower(s) hereby agree(s) to waive notice of dishonour from the Bank, in case any bill negotiated/sent for collection by it is returned unpaid/ unaccepted.

The Counsel for the respondent Bank also explained in its written statement to the counter-claim that due to a technical error of fact the dishonour of the cheque was intimated to the complainant after some delay.

It is clear that the appellants/petitioners did not dispute the liability to pay the balance amount as per its arrangement with the Bank. Again, the Consumer Court also held that the appellant was liable to pay the said amount. The above said amount is recoverable under Section 2(g) of the RDDBFI Act, it must be borne in mind that according to Section 22 of the RDDBFI Act the Court is to be guided by the principles of natural justice and subject to other provisions of the Act and of any rules and that the Apex Court has held that the Tribunal has got more powers than what a Civil Court has got under CPC. It appears that the delay caused by the Bank was not due to ulterior motive, but due to a bona fide mistake and as per agreement the Bank was not required to send that intimation. However, all these issues are kept open which be adjudicated at the final stage.

The Counsel for the respondent Bank submitted that the appellants are liable to deposit Rs. 24,35,865/- approximately out of which Rs. 4 lakh have already been deposited. Keeping in view all the facts and circumstances, I take a lenient view and admit the appeal subject to the appellants depositing with the Bank Rs. 4 lakh more, because it appears that the appellants have deposited Rs. 4 lakh vide order passed by this Court and has deposited some other admitted amount also. The amount be deposited within four weeks from today. Let the case come up on 8.8.2011 for overseeing the compliance of this order and for further proceedings. In case the order of this Court is not complied with this Court will be constrained to dismiss the case. Counter affidavit be filed by that date.