Samrat Investments Pvt. Ltd. vs Janaksons
1997 Latest Caselaw 963 Del

JUDGMENT

K.S. Gupta, J.

(1) Defendants 1 & 2 have filed this application under Section 151, Civil Procedure Code alleging that the plaintiff filed suit for return of the movable properties as detailed in Annexure-A filed alongwith the plaint or in the alternative for recovery of Rs. 1,19,330.00 against defendants 1 & 2 by an order dated December 14,1981, Shri M.L. Jain, Advocate, was appointed as Receiver to take custody of the movable goods in question. By a subsequent order dated December 16, 1981 goods in question were ordered to remain in the godown of defendant No. 3-Bank but in the custody of the Receiver. Receiver was also authorised to dispose of the foods in question and to deposit the sale proceeds thereof with the Hindustan Commercial Bank Limited. Amount of the sale proceeds was to be invested in fixed deposit and was to be disbursed as per the orders to this Court. It is further alleged that the aforesaid Receiver filed his report alongwith the Bank Draft for Rs. 1,19,330.00 being the amount of sale proceeds of the goods in question. That amount was converted into a fixed deposit in the name of the Registrar of this Court. Plaintiff and defendants 1 & 2 have amicably settled the dispute and accordingly, LA. 3976/92 was filed by them. Plaintiff has no objection to the release of the aforesaid amount of Rs. l,19,330.00 with interest in favour of defendants 1 & 2. It was prayed that the said amount alongwith interest be released in favour of defendants 1 & 2. Defendant No. 3 has contested the application by filing reply. It is alleged that the goods in question were pledged with the Bank by defendants 1 & 2 against the loan taken by them. Without setting the loan amount, money cannot be released in favour of defendants 1 & 2.

(2) I have heard Mr. H.C. Dhall for defendants 1 &2 and have been taken through the file.

(3) Suit against defendants 1 & 2 was filed, inter alia, on the allegations that relying on the representation made by Dharmpal Aggarwal, defendant No. 2 that the draft representing the cost of the supplies would be handed over simultaneously with the delivery, the plaintiff supplied Wasp and Regal P/SWS A/H H/S vide Challan Nos. SM/DLI/SAWS/9, SM/DLI/SAWS/H and SM/DLI/SAWS/13 containing 2360 packets of blades at the defendants godown on December 9,1981. However, aforesaid Dharmpal Aggarwal did not handover the drafts at the time of supplies on the excuse that the drafts were with his father who had just left the premises. Thereafter on December 10,1981, representative of the plaintiff again met said Dharmpal Aggarwal to collect the drafts but he again put off the delivery thereof by making further excuses. On realising that the delivery of the goods in question was taken by defrauding the plaintiff, the plaintiff lodged an Fir with the police. Subsequently, present suit was filed against defendants 1 &2. Bank, who was allowed to be imp leaded as defendant No. 3 by the order dated August 6, 1982, in its written statement and reply to the plaintiff's I.A. 3976/92 (under Order Xxiii Rule 3 & Section 151, CPC) have alleged that cash pledge limit to the extent of Rs. l,00,000.00 was granted to defendants I &2 on November6,1981. Goods in question were pledged by defendant 1 and 2 in favour of the Bank as security against advances on December 9, 19817 Those were stored in a godown situated at 287, PhatakKirori,Ajmeri Gate, Delhi which was under an arrangement with Hindustan Commercial Bank Limited, Chandni Chowk.By the order dated December 15,1981 the goods in question were directed to remain in the said godown of the Bank but in the custody of the Receiver. It is stated that a sum of Rs. 4,24,985.00 was outstanding in the account of defendants I &2 as on May 15,1992. It is, therefore, defendant No. 3 Bank which is entitled to the sale proceeds of the goods in question and not the defendants 1 & 2.

(4) It is not disputed by defendants 1 & 2 that the goods in question delivery whereof was taken from the plaintiff on December 9,1981, were pledged by them with defendant No. 3 - Bank by way of security against advances in Cash Credit Pledge Limit of Rs. 1,00,000.00 . By virtue of the goods in question being pledged defendant No. 3 - Bank had first charge on them so also on the sale proceeds thereof after their sale. As a sum of Rs, 4,24,985.00 is stated to be outstanding against defendants 1 & 2 as on May 15,1992 in Cash Credit Pledge Limit Account, a foresaid amount of Rs. l,19,330.00 can only be released in favour of defendant No. 3. I am unable to agree with the submission advanced by Mr. Dhall that for recovery of the outstanding dues in the said account which have now become barred by time, defendant No. 3 - Bank ought to have filed suit against defendants 1 & 2. Application, therefore, deserves to be dismissed.

(5) Consequently, application is dismissed. Amount of Rs. l,19,330.00 with interest is released in favour of defendant No. 3 -Bank. In case the total amount exceeds the amount now due from defendants 1 & 2 in Cash Credit Pledge Limit Account, the difference would be paid by defendant No. 3 - Bank to defendants 1 &2.

(6) With the compromise between the plaintiff and defendants 1 & 2, the suit does not survive and the same too is, therefore, dismissed as satisfied.