Punjab National Bank vs M/S. Paper Conductor And Another
2001 Latest Caselaw 441 Del

ORDER

A.K. Sikri.J.

1. Plaintiff-Bank has filed the Suit for recovery of Rs.6,79,345.15p against the defendants. The facts stated in the plaint are that the plaintiff is a body corporate constitute under the Banking Companies Acquisition and Transfer of Undertaking Act, 1970 having its head office at 7, Bhikaji Cama Place, New Delhi-11006. The plaintiff has its branch office at Shahdra, Delhi-110032. Mr.K.K. Malhotra is the Manager and it also the duly constituted attorney of the plaintiff bank. He is duly authorised to institute the Suit and verify the pleadings. He has knowledge of the facts of the case which knowledge is derived from records maintained by the plaintiff bank. The defendant no.1 is a proprietorship concern having office at 3063, Desh Bandhu Gupta Road, Paharganj, Delhi - 110005. The defendant no.2 is the proprietor of defendant no.1 and in that capacity is liable for the dues of defendant no.1. The defendant no.1 through defendant no.2 opened a current account No. 5709 in November 1992 with the plaintiff-bank at its Shahdara Branch. The defendant no.1 through its proprietor defendant no.2 sold goods to defendant no.3 vide bill dated 29th January, 1993 for Rs.3,99,614.80 and the documents were presented through the plaintiff-bank. The defendant no.1 had to collect Rs.3,99,614.80 from defendant no.3 if paid up to 21st February, 1993 and if the payment was made thereafter then Rs.3,99,614.80 Along with interest @ 24% per annum. Defendant no.1 drew an Hundi No. 28 dated 28 dated 29th January, 1993 upon defendant no.3 which was to become due on 21st February, 1993. The Hundi if not paid on due date was to carry interest @ 24% per annum. The Hundi was to be presented for payment through Bank of India, Khan Market branch. The Hundi was accepted by defendant no.3 and 29th January, 1993. The defendant no.1 through the defendant no.2 requested the plaintiff to discount the said Hundi dated 28th January, 1993 which request was accepted and defendant nos. 1 and 2 were allowed discount of bill on the pay in slips for bill dated 29th January, 1993. The plaintiff discounted the said bill and credited a sum of Rs.2,84,106/- in the current account no.5709 of defendant no.1 on account of discounting of Hundi No.28 dated 29th January, 1993 and bill dated 29th January, 1993 by keeping margin money, interest, commission and other bank charges. Defendants 1 and 2 withdrew an amount of Rs.2,84,000/- on 29th January, 1993 itself. Condition no.4 on the pay in slip stipulates that in case of bill being returned unpaid at any time the amount was recoverable from defendants 1 and 2. The Hundi no.28 dated 29th January, 1993 was sent for collection of payment to bank of India, Khan Market, New Delhi - 110003 by the plaintiff. Despite presentation of the said Hundi for payment, the payment was not forthcoming from defendant no.3. Bank of India informed that payment was not forthcoming and the captioned bill was returned. The plaintiff paid Rs.750/- as handling charges to Bank of India, Khan Market Branch. Thus the Hundi was dishonoured upon presentation.

2. The plaintiff sent letter dated 23rd June, 1993 informing the defendants 1 and 2 about the fact that the Hundi dated 29th January, 1993 remains unpaid as payment is not forthcoming from defendant no.3. Payment was demanded by the plaintiff Along with interest and other charges from the defendants 1 and 2. Notwithstanding this fact none of the defendants have paid the money to the plaintiff. On account of the Payment not forthcoming the O.B.D. amount Along with interest which was charged at quarterly rests was transferred to protested account on 7th January, 1994.

3. It is further mentioned in the plaint that defendants 1 and 2 have become liable to pay Rs.5,37,116.26p as on 21st January, 1996 which is the amount due inclusive of interest. Plaintiff has charged compound interest at the rate specified by Reserve Bank of India from time to time at quarterly rests. A further amount of Rs.750/- is claimed as handling charges as paid to Bank of India, Khan Market Branch, by the plaintiff for presentation of Hundi.

4. It is further stated in the plaint by the plaintiff-Bank that defendant no.3 being the purchaser of goods from defendants 1 and 2 of Rs.3,99,614.80p was liable for this amount. It had further accepted Hundi dated 29th January, 1993 for Rs.3,99,614.80p and as the amount was not paid on due date, defendant no.3 was also liable to pay 24% interest on this amount as well as other charges and in this way liability of defendant no.3 was for Rs.6,79,.345.15p Along with pendente lite and future interest @ 24% per annum. On the basis of these averments decree in the following manner is prayed:-

(a) Rs.5,37.866.26 Along with interest at the rate of 21.75% per annum with quarterly rests be paid to the plaintiff by defendant no.3.

(b) The balance sum be paid to defendants 1 and 2 by defendant no.3.

5. As the defendants could not be served by ordinary process, it was directed that defendants 1 and 2 be served by publication in "Statesman" and defendant no.3 be served by publication in "Amar Ujala". They were duly served by this mode. Still nobody appeared on behalf of any of the defendants. On 4th March, 1999 they were proceeded ex-parte. Pursuant thereto affidavits of Shri B.M.K.Gupta, Manager, Punjab National Bank, Branch office-Shahdra, Delhi and Shri K.S. Vijan, another Officer of Punjab National Bank who was posted in Branch Office - Shahadara, Delhi at the relevant time are filed. In the affidavit of Shri B.M.K. Gupta he has deposed consistently with the averments made in the plaint and as noted above original documents are also filed and exhibited. Shri K.S. Vijan has identified the signatures of defendant no.2 on various documents including challan and bill dated 29th January, 1993, Hundi dated 29th January, 1993 as well as account opening form of Mr.Vijay Shankar Arora i.e. defendant no.2.

6. After going through the evidence on record I am of the view that the plaintiff has been able to prove his case. The plaintiff had discounted the Hundi in question (ex.PW.1/3) and credited the account of defendant no.1 with a sum of Rs.2,84,106/- in the current account No.5709 of defendant no.1. Since the Hundi was not honoured on presentation, the defendants 1 and 2 became liable for payment of Rs.2,84,106/- Along with interest. As per the statement of account the amount due was Rs.5,37,886.26p which includes Rs.750 as handling charges. It is stated that interest is charged on the basis of Reserve Bank of India guidelines. The suit in the sum of Rs.5,37,886.26p against defendants 1 and 2, therefore, stands decreed. The plaintiff shall also be entitled to pendente lite and future interest @ 18% till the date of payment of the amount in question of defendants 1 and 2.

7. In so far as the defendant no.3 is concerned he is liable to pay the amount on account of dishonour of Hundi. Hundi was for Rs.6,79,345.15p which carries interest @ 24% per annum. If the plaintiff is able to recover the amount from the defendant no.3 in excess of the amount of decree passed against the defendants 1 and 2, the balance amount shall be paid by the palintiff to the defendants 1 and 2. The plaintiff shall also be entitled to the cost. Decree be drawn accordingly.