CS 175 of 2010. Case: Kesoram Industries Limited Vs Allahabad Bank. High Court of Calcutta (India)
| Case Number | CS 175 of 2010 |
| Counsel | For Appellant: Asha Gourisaria Gutgutia, Sayantani Shaw Samanta and Poulami Dutta Misra, Advs. and For Respondents: Arindam Mukherjee and Rajat Kanti Jha, Advs. |
| Judges | Shivakant Prasad, J. |
| Issue | Banking Regulation Act, 1949 - Sections 45Y, 45Z; Code of Civil Procedure, 1908 (CPC) - Sections 11; 9; Constitution of India - Articles 136, 226; Indian Evidence Act, 1872 - Sections 25, 3; Limitation Act, 1963 - Sections 14, 15 |
| Judgement Date | April 03, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Shivakant Prasad, J.
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This is a suit for declaration and injunction.
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The plaintiff's case, in brief, is that the plaintiff is a company incorporated under the Companies Act and carries on business, inter alia, in retail sale of fabrics and other items. The defendant is a nationalized bank and carries on banking business.
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Plaintiff issued Refund Warrants to its customers and the customers could encash and obtain refund which the plaintiff agreed to pay to them within six months of the date of issuance thereof and made arrangement with the defendant bank and on 14.1.1984 opened with the Stephen House Branch of the defendant Bank, a cash credit account bearing No. 400016 with a limit of Rs. 9 Crores and also a customer Refund Account No. 404 in the name of the customers of the plaintiff (referred to as the ROB A/c. No. 404) to facilitate smooth encashment of such refund vouchers which would be encashed by all Branches of the defendant bank within the validity period of six months and thereafter, the full particulars of such payment would be obtained by the defendant bank and such particulars would be supplied to the plaintiff for reconciliation and after reconciliation the amount paid by way of such encashment of the refund vouchers would be debited in the said cash credit account of the plaintiff.
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The defendant bank through its Stephen House Branch, Kolkata sent regular statements to the plaintiff with details of the transactions and copies of the encashed warrants/vouchers disclosing the names of the payees and date and amount of payment, so that the plaintiff could verify and reconcile its own accounts.
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By a letter dated 13.02.1997 the defendant bank called upon the plaintiff not to issue any further refund voucher. After 28.2.1997 the plaintiff stopped issuing any refund voucher. The defendant bank by its letter dated 17.3.1997 wanted confirmation that no refund voucher was issued after 28.02.1997 and such confirmation was immediately given by the plaintiff but the defendant arbitrarily debited the said ROB A/c. No. 404 to the staggering amount of Rs. 45,55,257.45p in or about 2000 showing a debit balance of Rs. 40,61,232.67p.
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It is further contended that the defendant bank has not produced any evidence of payment of any sum from the said account after 31.8.1997 despite request by the plaintiff contrary to the guidelines given by the Reserve Bank of India and the provisions of the Banking Regulation Act, 1949.
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Accordingly, the plaintiff has prayed for declaration that any debit balance shown by the defendant in the ROB A/c. No. 404 in its Stephen House Branch is illegal, void and not binding on the plaintiff and also prayed for injunction directing the defendant to transfer the cash credit A/c. No. 400016 of the plaintiff maintained in Stephen House Branch being a sum of Rs. 4,94,024.80 and to give effect as on 19.5.1999 and for decree of Rs. 1,20,00,000/-.
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Defendant has contested the suit contending inter alia, that the suit is not maintainable as barred by the law of limitation and the principle of res-judicata inasmuch as for the same allegations and contentions as contained in the plaint the plaintiff made applications claiming the same reliefs before the State Commission which was dismissed on March 31, 2008 and appeal before National Consumer Disputes Redressal Commission was dismissed on January 12, 2009 and so also the review application dismissed on 27th August, 2009 finding no error apparent on the face of record against which Special Leave Petition to the Hon'ble Supreme Court was also dismissed on December 7, 2000. Then, plaintiff filed Writ Petition in the High Court at Delhi against the orders of January 12, 2009 and August 27, 2009 of National Consumer Disputes Redressal Commission, New Delhi.
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Specific contention of the defendant Bank is that at the request of the plaintiff, the ROB A/c. No. 404 was duly closed in due time. The Certificate dated April 20, 1999 and the statement of account showing credit balance of Rs. 4,94,024.80p in the ROB A/c. No. 404 as on March 31, 1999 was the correct position of the transactions and in debiting ROB A/c. No. 404 of Rs. 45,55,275.45p, there was a debit balance of Rs. 40,61,232.67p.
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The particulars of the number of refund vouchers or their date of issue or their date of validity were not informed to the defendant.
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Hence, it has been prayed that the suit be dismissed as barred by the law of limitation and as res-judicata.
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On the above pleadings following issues are framed for determination of the disputes between the parties:
1) Is the suit maintainable in its present form and prayer?
2) Is the suit barred by limitation?
3) Is the suit barred by principles of res judicata?
4) Whether the plaintiff liable to pay any sum or sums to the defendant bank in respect of ROB Account No. 404 as claimed by the defendant or otherwise?
5) Whether the plaintiff is entitled to get the sum of Rs. 4,94,024.80p. transferred to its cash credit Account No. 400016 or any other account in favour of the plaintiff as if the same was made on 31.3.1999, the date on which the existence of such credit balance is certified by the defendant bank will all consequential resulting benefits viz. interest thereof?
6) Whether the debit balance shown by the defendant in the said ROB Account No. 404 in its Stephen House Branch after 28.02.1997 is illegal, void and not binding on the plaintiff?
7) Is there any sum realizable by the defendant from the plaintiff?
8) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant bank and its servants, officers or agents from enforcing or realizing from the plaintiff any sum or part thereof in respect of the said ROB Account No. 404 or taking any steps against the plaintiff in any way whatsoever in respect of the said ROB Account?
9) To what relief or reliefs, if any, is the plaintiff entitled?
Decision with reasons
Issue Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9:
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All the above issues being interlinked are taken up together for the sake of convenience in discussion and for brevity.
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Addressing the issues relating to law of limitation and applicability of principles of res judicata. Mr. Arindam Mukherjee, learned Advocate for the defendant submitted that suit is barred by limitation because the cause of action in the suit arose in 2000, when a certificate dated 07.04.2000 was issued by the defendant claiming a debit balance of over Rs. 40,00,000/- to realize over Rs. 45,00,000/- from the plaintiff after adjusting Rs. 5,00,000/- from the debit balance of Rs. 45,00,000/- whereas the suit filed was on 07.7.2010. And as the issue involved in the suit was decided by the State and National Dispute Redressal Forums, the suit is barred by principles of res judicata and as such the suit is not maintainable.
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Per contra, Ms. Asha Gourisaria Gutgutia, learned Advocate appearing for the plaintiff submitted that the cause of action to institute this suit arose firstly on 01.4.2000 when the defendant for the first time claimed a debit balance in the said ROB A/c. 404. Since the defendant is continuously increasing this debit amount as stated hereinabove, each subsequent addition to this debit balance constitute a part of cause of action, as each addition is made within 31st March every year, the claim of the plaintiff is not barred by limitation.
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Ms. Gutgutia fortified her arguments, the suit was filed in 2010, almost 10 years later, but the suit is not barred by limitation on two scores. Firstly, it is settled principle of law that claims of a bank is...
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