Delhi High Court
Nirmal Bang Commodities Pvt. Ltd. vs Mr. Goutam Santara on 18 July, 2024
Bench: Rajiv Shakdher, Amit Bansal
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th July, 2024
+ FAO (COMM) 134/2024
NIRMAL BANG COMMODITIES PVT. LTD. .....Appellant
Through: Mr Debopriyo Moulik, Advocate.
versus
MR. GOUTAM SANTARA .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL)
CM APPL. 40000/2024
1. Allowed, subject to just exceptions.
FAO (COMM) 134/2024 and CM APPL. 39999/2024 [Application filed
on behalf of the appellant for interim relief]
2. This appeal is directed against the judgment dated 21.05.2024, passed
by Ms Vineeta Goyal, learned District Judge (Commercial-03), Patiala
House, New Delhi.
3. Via the impugned judgment, the learned District Judge has dismissed
the appellant's petition under Section 34 of Arbitration & Conciliation Act,
1996.
4. The issue involved in the present case lies in a narrow compass.
5. The appellant is a registered commodities broker with the
commodities exchange, who was party to an arbitration proceeding taken out
by the respondent.
6. The genesis of the arbitration proceedings was the remittance of Rs.25
lakhs by the respondent via four (04) cheques. These cheques, the details of
which are provided in the impugned order, were handed over by the
respondent to the appellant's agent, one, Mr Lalit Punetha. For convenience,
the details of the four cheques that were handed over are set forth hereafter:
(i) Cheque No. 679683 drawn in favour of Nirmal Bang
Commodity Pvt Ltd for an amount of Rs.5 lakhs,
(ii) Cheque No. 679685 drawn in favour of Nirmal Bang
Commodity (Pvt Ltd) for an amount of Rs.5 lakhs,
(iii) Cheque No. 679691 drawn in favour of Nirmal Bang
Commodity for an amount of Rs.9 lakhs,
(iv) Cheque No. 679692 drawn in favour of Nirmal Bang
Commodity for an amount of Rs.6 lakhs.
7. It is not in dispute that in so far as the present appeal is concerned, it
is confined to only two (02) out of the four cheques, which are valued at
Rs.5 lakhs each.
8. The respondent appears to have remitted the amounts, via the four
cheques, as he wished to trade in the commodities market.
8.1 Unfortunately, the amounts were remitted to an account which was
opened by the appellant's agent Mr Lalit Punetha.
9. It appears that the appellant's agent had opened an account, in the
name which, according to the appellant, was deceptively similar to that of
the appellant.
10. It is the appellant's case that the suffix 'Pvt Ltd' did not appear in the
account maintained by the appellant's agent i.e., Mr Lalit Punetha, therefore,
the argument throughout, which had been advanced by the appellant before
the Grievance Redressal Committee, the Arbitral Tribunal and the Appellate
Arbitral Tribunal as also before the learned District Judge, is that the money
has not been remitted to the account of the appellant. In support of this
submission, the learned counsel, who appears on behalf of the appellant, has
relied upon the following communication dated 07.05.2022 received from
Canara Bank.
" TO WHOMSOEVER IT MAY CONCERN
This is to certify that Account No. 87183070000130 was maintained in the
name of Nirmal Bang Commodities and the proprietor of the firm was Mr.
Lalit Punetha. Further, we also confirm that cheque nos. 679683 and
679685 have been cleared in the name of 'NIRMAL BANG
COMMODITIES'. We are not in the possession of the original physical
cheques as at that time the cheque used to clear through manual clearing
and we have verified the details with our deposit slips. For your reference
we are attaching the deposit slips of both the cheques with this letter."
11. A careful perusal of extract of the aforesaid communication, on which
reliance is placed by the appellant, would show that Canara Bank was not in
possession of the original physical cheques because at the relevant time,
cheques were cleared through manual clearing process. Therefore, the basis
of the communication is the deposit slips.
12. Experience would show that at the time when beneficiaries of banking
instruments fill deposit slips, the names are often truncated. In this case as
well, the depositor appears to have filled in the name of the beneficiary as
"Nirmal Bang Commodities", sans the suffix 'Pvt Ltd'.
12.1 As against this, it is sought to be argued by the learned counsel for
the appellant that the suffix 'Pvt Ltd' was added after the cheques were
drawn, in view of the manner in which the said suffix is positioned.
13. According to us, this is the matter which would fall in the realm of
appreciation of evidence. Since the matter has been examined at four (04)
stages, we need not re-examine the issue. As indicated above, the appellant
is placing its defence on the 'whomsoever' communication issued by its
banker i.e., Canara Bank.
14. The banker's letter of communication does not, in our view, support
the case of the appellant as it is not based on original cheques that were
received by it at the time of clearing.
15. That said, in our view, the arguments as advanced by the learned
counsel for the appellant is completely misconceived as the burden in the
impugned judgment is not pivoted on receipt of money by the appellant.
16. The appellant, apparently, did not receive the money that was remitted
by the respondent.
17. The impugned judgment proceeds on the basis that Mr Lalit Punetha
acted as the agent of the appellant not only in the transaction involving the
respondent, but on 400 other transactions as well.
17.1 Therefore, the learned District Judge concluded that Mr Lalit Punetha,
being the agent of the appellant, portrayed that he had the authority to
collect the payments to enable the appellant to trade in commodities.
18. In our opinion, given the past conduct of Mr Lalit Punetha, qua which
no dispute is raised by the appellant, he had ostensible authority to act on
behalf of the appellant. Therefore, if the agent has short-changed the
appellant, the remedy of the appellant lies against the agent and not the
remitter of the money i.e., the respondent. The doctrine of 'indoor
management' would be squarely applicable in this case. [See Royal British
Bank vs Turquand (1856) 6 E&B 327].
19. Strangely, when we queried the learned counsel for the appellant as to
whether any civil proceedings were taken out against Mr Lalit Punetha for
recovery of the money, the learned counsel submits that the appellant has
only triggered criminal proceedings and no civil proceedings have been
taken out.
19.1. This conduct of the appellant has lingering doubt in our minds as to
whether or not the agent, somewhere, has acted at the behest of the
appellant.
20. We, therefore, find no merit in the appeal. The appeal is accordingly
dismissed.
21. Pending application shall also stand disposed of.
AMIT BANSAL
(JUDGE)
RAJIV SHAKDHER
(JUDGE)
JULY 18, 2024
PB
