State Bank Of India vs Bombay Iron And Steel Labour Board
2024 Latest Caselaw 15530 Bom

Bombay High Court

State Bank Of India vs Bombay Iron And Steel Labour Board on 10 June, 2024

Author: Abhay Ahuja

Bench: Abhay Ahuja

2024:BHC-OS:8690


                                                                               31-IA(L)-11006-2023.doc


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      ORDINARY ORIGINAL CIVIL JURISDICTION

                                    INTERIM APPLICATION (L) NO. 11006 OF 2023
                                                      IN
                                    COMMERCIAL SUMMARY SUIT NO.91 OF 2022

                    STATE BANK OF INDIA                           )...APPLICANT /
                                                                  ORIGINAL DEFENDANT
                                                  IN THE MATTER BETWEEN
                    BOMBAY IRON AND STEEL LABOUR BOARD )...PLAINTIFF
                             V/S.
                    STATE BANK OF INDIA                           )...DEFENDANT

                    Mr.Shailesh Naidu i/by Mr.Sanjay Shinde a/w. Mr.Prathmesh
                    Bharuwanshe, Advocate for the Plaintiff.
                    Mr.Saurish Shetye a/w. Mr.Ravi Goenka a/w. Mr.Abhijeet Khairware
                    i/by Goenka Law Associates, Advocate for the Defendant.

                                                    CORAM    :    ABHAY AHUJA, J.

                                                    DATE     :    10th JUNE 2024

                    ORAL JUDGMENT :

1. This Interim Application has been filed by the Defendant-State

Bank of India (the Defendant - bank) under Order VII Rule 11 of the

Code of Civil Procedure, 1908, (CPC) seeking rejection/return of the

plaint on the ground that the same is barred under law and cannot be

tried under the Commercial Courts Act, 2015 (the "Commercial Courts

Act"). The Plaintiff - Board has filed reply to the same.

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2. Mr.Shetye, learned Counsel for the Applicant, would submit that

the present suit has been filed by the Plaintiff to recover an amount of

Rs.36,00,00,000/- along with interest from the Defendant-bank which

were placed as fixed deposits by the Plaintiff with the Defendant -

bank. However, since as per the plaint, the Plaintiff has lodged a

written police complaint dated 15th May 2019 with the Joint Police

Commissioner, Economic Offences Wing, Mumbai, alleging that the

Manager of the Defendant-bank, Mr.Nikhil Roy, has committed fraud,

misappropriated funds and with his active involvement and

connivance, an amount of Rs.36,00,00,000/- is alleged to have been

withdrawn without the consent of the Plaintiff, pleading fraud and

misappropriation, that, the transaction cannot be a commercial

transaction since the subject matter of the suit goes on the footing of

fraud and misappropriation.

3. Mr.Shetye would submit that the Plaintiff has filed the suit as a

Commercial Summary Suit which is primarily governed by the

provisions of the Commercial Courts Act and disputes as mentioned in

Section 2(1)(c)(i) to (xxii) are treated as commercial disputes and

eligible to be tried as commercial suits under the provisions of the

Commercial Courts Act, is not maintainable as the dispute which is

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subject matter of the present suit cannot be considered as a commercial

dispute considering the mandate and provisions of the Commercial

Courts Act.

4. Mr.Shetye would submit that the Plaintiff has alleged in the

plaint that there was a fraud and misappropriation of funds which were

lying in the form of fixed deposits with the Defendant - bank. That, the

cause of action to file the suit as per the plaint is on account of fraud,

which has allegedly taken place and not as a business transaction.

5. Mr.Shetye would submit that the alleged fraud and

misappropriation of funds, as mentioned in the plaint, does not fall

under the definition of commercial disputes as per Section 2(1)(c)(i) to

(xxii) of the Commercial Courts Act, and therefore, the present suit and

the cause of action therein do not qualify to be treated as commercial

disputes and therefore the suit cannot proceed as a commercial suit

under the Commercial Courts Act.

6. Mr.Shetye relies upon the decision of the Delhi High Court in the

case of IHHR Hospitality (Andhra) Pvt. Ltd. vs. Seema Swami and

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Others1 and would submit that in the said case, it has been clearly held

that if the nature of transaction and the recovery is sought on the

averments of embezzled amounts, the same cannot be termed as

business transaction or having arisen in the ordinary course of business

and therefore the suit does not qualify as a commercial suit, as defined

under Section 2(1)(c) of the Commercial Courts Act. Learned Counsel,

submits that, therefore, the plaint be rejected and returned as the same

cannot be filed as a commercial summary suit.

7. On the other hand, Mr.Naidu, learned Counsel for the Plaintiff,

opposes Mr.Shetye's submissions. Mr.Naidu would submit that the

Plaintiff is an authority of the Maharashtra State Government

established under the special statute namely Maharashtra Mathadi,

Hamal and other Manual Workers (Regulation of employment and

Welfare) Act, 1969 (the "Mathadi Act"), and is a statutory body for

regulating the employment of unprotected manual workers such as

Mathadi, Hamal etc. employed in certain employments, to make better

provision for their terms and conditions of employment, to provide for

their welfare and for health and safety measures and to facilitate the

welfare of unprotected manual workers. That, the Plaintiff-Board is

1 2022 SCC Online Del 3635

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empowered under the Mathadi Act and the Bombay Iron and Steel

Unprotected Workers (Regulation of Employment and Welfare)

Scheme, 1970 (the "said Scheme") formulated by the Government for

the protection of the workers to manage its own funds from the monies

receivable in the form of fees, wages and levies receivable by the board

from the registered employers. That, the Plaintiff - Board receives

money by way of interest on investments in securities and deposits.

Mr.Naidu would submit that as per Clause 6(4) of the said Scheme

framed by the State Government, the Plaintiff - Board is permitted to

invest its funds only in State Bank of India or any other nationalized

banks.

8. That, by email dated 13th December 2018, the Defendant - bank

communicated to the Plaintiff about their best interest rates on fixed

deposits. And after considering the interest rates as communicated by

the Defendant - bank, vide the aforesaid email, the Plaintiff decided to

invest its funds into the fixed deposits with the Defendant - bank.

9. Accordingly, on 15th December 2018, the Plaintiff submitted three

mandatory letters dated 14th December 2018 directing the Defendant -

bank to invest monies into term deposits as per the terms and

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conditions mentioned in the said letters of investment. The

mandatory conditions mentioned in the said letters are reproduced as

under :

(i) This account will be operated by the Chairman and Secretary of this Board jointly.

(ii) No individual person has either the authority to raise any loan on the basis of this deposit or offer this deposit as a security for any loan.

(iii) FD receipt shall not be mortgaged, no overdraft, pledged, hypothecated or transferred to anybody else. No loan shall be granted against this FD amount or against this FD receipt.

(iv) Please mark NO LIEN on the certificate issued to us and in your computer system so that the same is displayed prominently. Debit freeze the FD amount till maturity.

(v) Certificate should be marked as original and signed on the face of the receipt. Also after every 3 three months the Board will approach your branch for verification, you are requested to cooperate and do needful by issuing required certificate.

10. It is submitted that, accordingly, the Plaintiff drew cheques for

various amounts for placing deposits with the Defendant - bank.

Mr.Naidu would submit that as on 16th February 2019, fixed deposits

totalling to an amount of Rs.45,00,00,000/- were placed by the

Plaintiff with the Defendant - bank.

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11. That, the representatives of the Plaintiff regularly verified the

fixed deposits placed with the Defendant - bank. That, on 11 th April

2019, the Defendant - bank showed to the Plaintiff's officers the status

of fixed deposits of Rs.45,00,00,000/- as outstanding on its computer

system. The Manager of the Defendant - bank certified to the Plaintiff

that fixed deposits of Rs.45,00,00,000/- as mentioned in the

communication by the Plaintiff had been opened by the Plaintiff with

the Defendant-bank for two years' duration and the said fixed

deposits / accounts were free from any loan, lien and encumbrances.

12. That in the month of May 2019, the Plaintiff once again decided

to verify the fixed deposits of Rs.45,00,00,000/- with the Defendant -

bank and the Chairman and Secretary of the Plaintiff along with other

officials approached the Defendant - bank for verification and

confirmation of the said fixed deposits. It is submitted that Manager of

the Defendant - bank, after seeing the officers of the Plaintiff, fled

away and did not return to the branch. That, the said Manager was

absconding for about two years and presently he is behind bars. The

Plaintiff registered their oral grievance with the officers of the branch

and thereafter two officers were deputed and sent to the Defendant -

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bank for the purpose of verification of the fixed deposits of the Plaintiff

and confirmation of the same.

13. It is submitted that, thereafter, the Plaintiff, on 13 th May 2019

submitted a hand written letter and sought confirmation from the

Defendant - bank about the fixed deposits that were outstanding and

payable on demand or on maturity and also for the status of the fixed

deposits on the computer system. It is submitted that the representative

of the Plaintiff was orally communicated that the fixed deposits of

Rs.36,00,00,000/- had been allowed to be prematurely withdrawn by

the Defendant - bank. That, when the Plaintiff requested for

documents pertaining to the said premature withdrawal, the officers of

the Defendant - bank refused to furnish any documents, and therefore,

the Plaintiff filed Right to Information (RTI) Application with respect to

the fixed deposit receipts of Rs.45,00,00,000/- placed by the Plaintiff

with the Defendant - bank.

14. Mr.Naidu would submit that on 15th May 2019, the Plaintiff

lodged a written complaint with the Joint Police Commissioner of

Economic Offences Wing, Mumbai submitting that the then Manager

of the Defendant-bank Mr.Nikhil Roy had committed fraud,

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misappropriation into the Defendant - bank and with his active

involvement and connivance, an amount of Rs.36,00,00,000/- had

been withdrawn/siphoned off without the consent of the Plaintiff and

without any board resolution or without any KYC of the Plaintiff, which

was clearly in breach of the guidelines of the Reserve Bank of India and

contrary to the terms and conditions of the mandatory letters of

investment.

15. Mr.Naidu would submit that therefore the Plaintiff submitted a

letter dated 16th May 2019 to the Defendant - bank for premature

withdrawal of the seven fixed deposit receipts of Rs.45,00,00,000/-.

16. That, the Defendant - bank by its letter dated 16 th May 2019

communicated to the Plaintiff that they were examining the said letter

and they would respond to it by the end of 17 th May 2019. Complaint

was also made to the higher officer of the Defendant - bank on 20 th

May 2019.

17. It is submitted that, however, none of the letters were replied to

or acted upon.

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18. It is submitted that the Plaintiff also communicated the same to

the Deputy Secretary, Labour Department, Government of Maharashtra,

by its letter dated 17th May 2019.

19. It is submitted that the Plaintiff submitted a letter dated 21 st May

2019 to the Chief Manager of the Defendant - Bank containing the

aforesaid facts and prayed for credit of the amount as per letter dated

16th May 2019 with accrued interest.

20. That, the Plaintiff also filed a First Information Report (FIR) as

well as a consumer complaint.

21. Mr.Naidu would submit that the fixed deposit receipts contain

implied contract between the Plaintiff and the Defendant - bank to pay

the amount mentioned in the fixed deposit receipts with interest. That,

the liability on the part of the Defendant - bank is an admitted liability

of Rs.45,00,00,000/- with interest.

22. That, thereafter, on 24th August 2020, the Plaintiff sent a legal

notice to the Defendant - bank inter alia calling upon them to pay the

fixed deposit amounts with interest, which was served on the

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Defendant - bank by hand delivery on 1 st September 2020. The

Defendant - bank replied to the said notice by communication dated

30th September 2020.

23. It is submitted that the Defendant - bank fraudulently on false,

frivolous and vexatious grounds refused to pay the said amount.

24. Thereafter, by rejoinder notice dated 28th December 2020, the

Plaintiff denied the defences raised against the Plaintiff by the

Defendant - bank in their reply.

25. Mr.Naidu, learned Counsel for the Plaintiff, would submit that

the Defendant - bank has paid the fixed deposit of Rs.9,00,00,000/-

with interest accrued thereon to the Plaintiff on 2 nd September 2021,

and therefore, the Defendant - bank has failed to pay the fixed deposits

of Rs.36,00,00,000/- with interest accrued thereon. That the

contentions and the defences raised by the Defendant - bank are sham,

bogus and improbable.

26. Mr.Naidu would submit that an amount of Rs.11,39,62,531/- out

of the money that was siphoned off has been debit frozen in bank

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account no.1002201010590 opened by an accused by the name of

Deepak Dayabhai Shah in Akhand Anand Co-operative Bank, Gujarat,

by exercise of powers under Section 102 of the Code of Criminal

Procedure, 1973. Mr.Naidu would submit that a criminal complaint has

also been filed in this regard before the 47 th Court of Additional Chief

Metropolitan Magistrate, Esplanade, Mumbai and the matter is

pending. That, accordingly, this suit has been filed for a total amount

of Rs.36,00,00,000/- along with interest as accrued under the fixed

deposits on the basis of the Fixed Deposit Receipts as per the Particulars

of claim.

27. Mr.Naidu submits that the transaction of placing fixed deposits

by the Plaintiff - Board with the Defendant - bank is a commercial

transaction and the repayment sought is an ordinary transaction of a

banker relating to mercantile documents which are the fixed deposit

receipts. Mr.Naidu draws the attention of this court to the definition of

commercial dispute in Section 2(1)(c)(i) of the Commercial Courts Act

and would submit that the enforcement and interpretation of the said

mercantile documents would also constitute a commercial dispute.

Referring to the Explanation to the said Section 2 of the Commercial

Courts Act, learned Counsel would submit that a commercial dispute

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shall not cease to be a commercial dispute merely because one of the

contracting parties is the State or any of its agencies or a private body

carrying out public functions.

28. Referring to the Banking Regulation Act, 1949, Mr.Naidu would

submit that Section 5(b) defines "banking" which means the accepting,

for the purpose of lending or investment, of deposits of money from the

public, repayable on demand or otherwise; that, therefore, placing of

fixed deposits by the Plaintiff - Board with the Defendant - bank is a

banking transaction. Mr.Naidu submits that the relationship between

the banker and a customer is that of debtor and creditor and the money

deposited with a bank cannot be taken to have given to him on trust

but it is an amount lent to him. That, placing of fixed deposits by the

Plaintiff - Board with the Defendant - bank makes the relationship

between the Plaintiff and the Defendant as that of creditor and debtor

as the amounts placed with the bank are to be returned by the bank

along with interest as per the terms of the fixed deposit receipts. That,

therefore, the dispute is a commercial dispute arising out of ordinary

transaction of a banker relating to enforcement of fixed deposit receipts

which are mercantile documents. Mr.Naidu would, therefore, submit

that by no stretch of imagination the dispute cannot be a commercial

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dispute or that the suit is not a commercial summary suit. That, the

decision of the Delhi High Court in the case of IHHR Hospitality

(Andhra) Pvt. Ltd. vs. Seema Swami and Others (supra) relied upon by

the learned Counsel for the Defendant - bank is clearly distinguishable

as the said suit was between a company and wife of the accused, who

had embezzled huge amounts through cheques and also made

fraudulent direct transactions from the bank account of the Plaintiff -

company and siphoned off the money. Therefore, the said suit was held

to be based on fraud on the basis of forged cheques and falsification of

accounts, which is not the case here, as even though there may have

been embezzlement of funds by an employee of the bank along with

other co-conspirators, however the present suit is a claim by the

Plaintiff - Board against the Defendant - bank for recovery of fixed

deposits of Rs.36,00,00,000/- along with interest and not against the

employees or persons involved in the fraud or embezzlement, and

therefore, the said decision is clearly distinguishable and not applicable

to the facts of the case.

29. Mr.Naidu would, therefore, submit that the application under

Order VII Rule 11 of the CPC be rejected.

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30. I have heard the learned Counsel and considered the rival

contentions.

31. Section 2(1)(c) of the Commercial Courts Act, which defines a

commercial dispute, is usefully quoted as under :

"2.(1)(c) "Commercial dispute" means a dispute arising out of-

(i) ordinary transaction of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii)issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;

(v) carriage of goods;

(vi) construction and infrastructure contracts, including tenders;

(vii) agreements relating to immovable property used exclusively in trade or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

(xi) joint venture agreements;

(xii) shareholders agreements;

(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;

(xiv) mercantile agency and mercantile usage;

(xv) partnership agreements;

(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design domain

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names, geographical indications and semiconductor integrated circuits;

(xviii) agreements for sale of goods or provision of services; (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;

(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.

Explanation.- A commercial dispute shall not cease to be a commercial dispute merely because-

(a) it also involves action for recovery of immovable property or for realisation of monies out of immovable property given as security or involves any other relief pertaining to immovable property;

(b) one of the contracting parties is the State or any of its agencies or instrumentalities, or a private body carrying out public functions;"

(emphasis supplied)

32. Section 5(b) of the Banking Regulation Act, 1949 defines

banking as under :

"5. Interpretation. - In this Act, unless there is anything repugnant in the subject or context,-

(a) .......

(b) "banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise;

............"

(emphasis supplied)

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33. It is not in dispute that the Plaintiff - Board placed fixed deposits

of Rs.45,00,00,000/- with the Defendant - bank upon the terms as

contained in the said fixed deposit receipts, as annexed to the plaint.

The fixed deposit receipts are term deposit receipts which imply

promise to pay the amount mentioned in the fixed deposit receipts with

interest on maturity. It is also not in dispute that out of the fixed

deposits of Rs.45,00,00,000/-, the Plaintiff - Board has been paid the

fixed deposits of Rs.9,00,00,000/- with interest on 2 nd September 2021.

That, therefore, what remains outstanding is the payment of fixed

deposits of Rs.36,00,00,000/- with interest. It is alleged that the fixed

deposits of Rs.36,00,00,000/- were fraudulently, prematurely

withdrawn and siphoned off. That, some part of it viz. an amount of

Rs.11,39,62,531/-, which has been siphoned off and deposited with

Akhand Anand Co-operative Bank in Gujarat, has been debit frozen.

There are allegations that a Manager of the Defendant - bank had

committed fraud and misappropriation due to which the premature

withdrawal / siphoning off has taken place. There are criminal

proceedings also pending with respect to the same. A perusal of the

plaint indicates that the Plaintiff - Board has made a claim of

Rs.36,00,00,000/- with interest in prayer clauses 58(a), (b) and (c)

along with further interest in prayer clause (d) for the recovery of the

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said amounts. It is not in dispute that the Plaintiff - Board had placed

the fixed deposits with the Defendant - bank which carries on the

business of banking. As can be seen, the Defendant - bank which is a

banking company / banker, has in the ordinary course of its business,

accepted the deposits of money from the Plaintiff - Board which is

repayable on demand or maturity and issued fixed deposit receipts

which are mercantile documents and the suit has been filed for

enforcement of the fixed deposit receipts, as the Defendant - bank had

failed to repay the amounts payable to the Plaintiff - Board, despite

demand / legal notice for recovery, therefore, in my view, the dispute is

a commercial dispute, squarely falling within the definition of

commercial dispute as defined under Section 2(1)(c)(i) of the

Commercial Courts Act. That, there are criminal proceedings pending

against the Manager of the Defendant - Bank or other co-conspirators

for fraud committed on the Defendant - bank or that, there has been a

purported siphoning off / embezzlement of funds, would not, in my

view, change the character or nature of the dispute, to not being a

commercial one. Mention of fraud, forgery, embezzlement in the plaint

would not change the cause of action of the suit, which is set out in

paragraph 52 of the plaint, which reads thus :

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"52) Cause of Action:- The Plaintiff submits that the cause of action for filing of the present suit arisen firstly on 13/5/2019 when the Plaintiff firstly came to know about the fraud taken place about the Plaintiff's Fixed Deposit of Rs.36.00 crore and thereafter when the Plaintiff submitted that letter / notices to the Defendant and thereafter when the Defendant failed to pay the said amount of Rs.36 crore with interest accrued thereon as per FDR's. Thereafter when the Plaintiff sent the legal notice to the Defendant which is not acted upon by the Defendant till date by paying the said amount to Plaintiff. The Plaintiff had filed Pre Institution Mediation in Commercial Disputes No.46 of 2020 wherein the Defendant refused to participate in the said mediation process as per its letter dt. 25/11/2020 submitted before the mediation authority. Hence the Dy. Registrar (Mediation) by its Letter dt. 25/11/2020 was pleased to issue Non-Starter Report into the matter. Thereafter all the F.D.R.'s have been matured in the month of December 2020, January and February 2021. However, the Defendant failed to pay the amounts of F.D.R.'s of Rs.36.00 crore with interest accrued thereon as per FDR's mentioned in the particulars of the claim. The F.D.R. No.38134500590, 38134477683 both dt.18/12/2018 and F.D.R. No.38199175799 dt. 19/1/2019 and F.D.R. No.38264435633 dt. 16/2/2019 in total of Rs.36 crore are not paid. The Plaintiff is therefore, constrained to file the present summary suit in this Hon'ble Court. Hereto annexed and marked as Exhibit "FF" is the true copy of the Letter dt. 25/11/2020 issued by the Dy. Registrar (Mediation) High Court Mumbai. Hereto annexed and marked as Exhibit "GG" is the true copy of the Particulars of Claim of Plaintiff."

34. It is quite clear that the cause of action is the failure of the

Defendant - bank to pay the amount of Rs.36,00,00,000/- with interest

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accrued thereon as per the fixed deposit receipts, despite legal notice as

well as the pre-institution mediation, which failed, due to the refusal of

the Defendant - Bank to participate in the mediation process. The

aforesaid paragraph clearly refers to the fixed deposit receipts with

numbers and amounts on which the commercial summary suit is based.

The relationship between the Plaintiff and the Defendant - bank is that

of creditor and debtor and by no stretch of imagination, the said

relationship can be said to be not a commercial one. I agree with

Mr.Naidu that the dispute is a commercial one, arising out of ordinary

transaction between a banker and customer for enforcement of fixed

deposit receipts by the customer for recovery of amounts of principal

and interest placed under the fixed deposits with the Defendant - bank.

I also agree with Mr.Naidu that the decision of the Delhi High Court in

the case of IHHR Hospitality (Andhra) Pvt. Ltd. vs. Seema Swami and

Others (supra) relied upon by the learned Counsel for the Defendant -

bank is clearly distinguishable as the said suit therein was between a

company and wife of the accused, who had embezzled huge amounts

through cheques and also made fraudulent direct transactions from the

bank account of the Plaintiff - company and siphoned off the money.

Therefore, the said suit was held to be based on fraud committed on

the basis of forged cheques and falsification of accounts, which is not

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the case here, as even though there may have been embezzlement of

funds by an employee of the bank along with other co-conspirators,

however the present suit is a claim by the Plaintiff - Board against the

Defendant - bank for recovery of fixed deposits of Rs.36,00,00,000/-

along with interest and not against the employees or persons involved

in the fraud or embezzlement, and therefore, the reliance by the

Defendant - bank on said decision is misplaced.

35. Accordingly, I hold that the dispute is a commercial dispute as

defined under Section 2(1)(c)(i) of the Commercial Courts Act. The

suit claim is of more than Rs.36,00,00,000/-, which is more than the

specified value, and therefore, has correctly been registered under the

commercial category as a commercial summary suit.

36. I am, therefore, inclined to dismiss the application as the suit is

not barred by the Commercial Courts Act.

37. Interim Application under Order VII Rule 11 of the CPC,

accordingly, stands dismissed. The question of rejecting / returning the

plaint would, therefore, not arise.

(ABHAY AHUJA, J.)

ARTI VILAS KHATATE