Bombay High Court
Bank Of India Thru. Br. Manager vs Pandurang Janbaji Wagh on 14 July, 2016
Bench: Ravi K. Deshpande
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 377of 2008
Appellant : Bank of India, Telkamptee Branch, through
igits Branch Manager, Telkamptee, Tahsil
Kalmeshwar, District Nagpur
versus
Respondent : Pandurang Janbaji Wagh, aged about 77 years,
Occ: Agriculturist, resident of 255, Killa Road,
Mahal, Nagpur
Shri A. V. Khare, Advocate for appellant
Shri A. S. Kilor, Advocate for respondent
Coram : R. K. Deshpande, J
Dated : 14th July 2016
Oral Judgment
1. Special Civil Suit No. 116 of 2001 filed by the respondent no.
1 for declaration, permanent injunction and damages was dismissed by the
trial Court on 30.9.2006. Regular Civil Appeal No. 558 of 2007 filed by the
plaintiff has been allowed on 2.5.2008 and the operative part of the order is
reproduced below :-
"Appeal is partly allowed with proportionate costs.
The judgment and decree passed in Spl. Civil Suit No.
116/2001 on 12.10.2006 pertaining to decree of declaration and
perpetual injunction stand quashed and set aside.
It is declared that action of illegal seizure dated 27/1/2001
of tractor and trolley of the plaintiff is null and void.
The plaintiff is held entitled for damages at Rs. 20000/- per
year from March, 1999 onwards till tractor and trolley is given in
his custody in the running condition.
Decree of perpetual injunction is however, disallowed.
A decree be drawn up accordingly".
2. The lower appellate Court has recorded a finding that the
seizure of tractor and trolley was illegal and unwarranted and damages @ Rs.
20,000/- per annum have been awarded payable from the month of March
1999 onwards.
3. This Court framed the substantial question of law on 1.4.2009
as under :-
"Whether after having approached Consumer Forum for relief,
Civil Suit for grant of very same relief was maintainable in view
of doctrine of election ?"
4. The subject-matter of the suit in question was challenge to the
seizure of the vehicle i.e. tractor and trolley hypothecated with the Bank and,
therefore, the cause of action for filing such suit arose on the date of seizure
i.e. 27.1.2001. The suit was filed on 9.2.2001. The contention of Shri A. V.
Khare, learned counsel for the appellant is that the suit was barred by the
provisions of Order II, rule 2 of the Code of Civil Procedure for the reason
that the plaintiff had filed, on earlier occasion, two separate complaints in
the Consumer Forum for the same relief and the decision rendered therein,
has attained the finality. The plaintiff was granted some relief of damages by
the Consumer Forum.
5. It is not possible to accept the contention for the reason that
the seizure was effected for the first time on 27.1.2001 and if the plaintiff
had filed the complaints prior to it in the Consumer Forum on the basis of
some cause of action which arose at that point of time, that would not create
a bar under Order II, rule 2 of the Code of Civil Procedure for the Civil Court
to entertain, try and decide the suit based upon subsequent cause of action.
The question of seizure of the vehicle on 27.1.2001 was not the subject-
matter of dispute before the Consumer Forum in any of the complaints.
6. The plaintiff claimed the relief of damages for the wrongful
seizure of the vehicle on 27.1.2001. Shri A. S. Kilor, learned counsel
appearing for the respondent/plaintiff concedes to the position that the lower
Appellate Court could not have passed a decree for payment of damages for
the period prior to 27.1.2001 and he submits that the decree to that extent
can be modified by holding that the damages @ Rs. 20,000/- per annum shall
be payable from 27.1.2001.
7. In view of the above, the substantial question of law, as framed
by this Court, does not arise for consideration. The second appeal is partly
allowed with the modification that the decree for damages @ Rs. 20,000/-
per annum shall operate from 27.1.2001. No order as to costs.
R. K. DESHPANDE, J
joshi
