Madras High Court
Sahayam vs The Bank Of Baroda on 5 June, 2023
S.A.(MD).No.205 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.06.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.205 of 2017
and
C.M.P.(MD).No.4042 of 2017
Sahayam,
Proprietor,
Ramya Traders. ... Plaintiff/Appellant/Appellant
Vs.
The Bank of Baroda,
Represented by its
Branch Manager,
Tuticorin. ...Defendant/Respondent/ Respondent
Prayer: Second Appeal is filed under Section 100 of CPC against the judgment
and decree dated 27.02.2015 made in A.S.No.6 of 2014 on the file of the
Principal District Court, Tuticorin confirming the judgment and decree dated
31.01.2014 made in O.S.No.395 of 2011 on the file of Sub Court, Tuticorin.
For Appellant : Mr.S.Siva Thilakar
For Respondent : No appearance
1/13
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S.A.(MD).No.205 of 2017
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the Courts below. The appellant is the plaintiff in the suit O.S.No.395 of 2011
on the file of the Sub Court, Tuticorin. The respondent is the defendant in the
said suit. In the forthcoming paragraphs, the parties are described as per their
litigative status in the suit.
2. The suit was filed for recovery of a sum of Rs.4,49,964.96/- against the
defendant together with interest and costs. The plaintiff had imported 580.60
tonnes of iron scrap from a company by name D.S. Holdings (Australia) Private
Limited. The plaintiff claims that there was a shortage of 22.740 tonnes of iron
scrap. The plaintiff had remitted through the defendant a sum of
Rs.9,47,411.84/- for the entire quantity of 580.60 tonnes of iron scrap payable
to D.S. Holdings (Australia) Private Limited. According to the plaintiff, the
defendant had also remitted the value of the imported iron scrap to M/s.D.S.
Holdings (Australia) Private Limited and in view of the shortage of 22.740
tonnes of iron scrap, the defendant had retained a sum of Rs.4,49,964.96/- with
them, which is the value of 22.740 tonnes of iron scrap. According to the
plaintiff, the said sum still remains with the defendant, which has not been
refunded to the plaintiff despite several reminders and demands.
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S.A.(MD).No.205 of 2017
3. The plaintiff also claims that she had filed a suit O.S.No.604 of 2008
against the defendant and M/s.D.S. Holdings (Australia) Private Limited and
had sought the relief of permanent injunction restraining the defendant from
disbursing the amount of Rs.4,49,964.96/- to D.S. Holdings (Australia) Private
Limited as they are not entitled for the same in view of the shortage of 22.740
tonnes of iron scrap. By a judgment and decree passed in O.S.No.604 of 2008,
the defendant has been restrained from making the payment of Rs.4,49,964.96/-
to M/s.D.S. Holdings (Australia) Private Limited. According to the plaintiff,
the judgment and decree passed in O.S.No.604 of 2008 has attained finality as
no appeal has been preferred by the defendant or by M/s.D.S. Holdings
(Australia) Private Limited. In the aforementioned circumstances, the suit
O.S.No.395 of 2011 has been filed by the plaintiff against the defendant before
the Sub Court, Tuticorin for recovery of the sum of Rs.4,49,964.96/- together
with interest and costs.
4. The defendant has filed its written statement. In the written statement,
the defendant has pleaded that the plaintiff had already filed a suit O.S.No.604
of 2008 and in the said suit, the plaintiff did not seek for recovery of the sum of
Rs.4,49,964.96/- and therefore, the suit O.S.No.395 of 2011 seeking for
recovery of money is not maintainable as it is hit by Order 2 Rule 2 CPC. The
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S.A.(MD).No.205 of 2017
defendant has also pleaded that the plaintiff having already paid the amount and
having taken the documents has lost the right of recovery of balance amount of
Rs.4,49,964.96/- and therefore, the suit is not maintainable. The defendant has
also pleaded that since the plaintiff has not impleaded M/s.D.S. Holdings
(Australia) Private Limited as a party defendant, the suit is bad for non-joinder
of necessary party.
5. Based on the pleadings, the Trial Court framed the issues. On the side
of the plaintiff, 16 documents were filed which were marked as exhibits A1 to
A16. Two witnesses were examined on the side of the plaintiff, namely, P.W.1,
the plaintiff and her husband P.W.2. On the side of the defendant, one witness
was examined, namely, its official as D.W.1. On the side of the defendant, 10
documents were filed which were marked as exhibits B1 to B10.
6. The Trial Court, namely, the Sub Court, Tuticorin by its judgment and
decree dated 31.01.2014 in O.S.No.395 of 2011 dismissed the suit by giving the
following reasons:
a) D.S. Holdings (Australia) Private Limited, the seller of the imported
goods was not arrayed as a party defendant in the suit and hence, the suit is not
maintainable for non-joinder of necessary party.
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S.A.(MD).No.205 of 2017
b) The agreement between the plaintiff and D.S. Holdings (Australia)
Private Limited was not produced by the plaintiff.
c) The suit is barred as per the provisions of Section 34 of the Specific
Relief Act.
7. Aggrieved by the judgment and decree of the Trial Court, the plaintiff
filed a first appeal. The Lower Appellate Court, namely, the Principal District
Court, Tuticorin in its judgment and decree in A.S.No.6 of 2014 dated
27.02.2015 also confirmed the findings of the Trial Court by dismissing the
first appeal and by also observing that the suit is barred under Order 2 Rule 2
CPC and it is also observed that the plaintiff has not proved her case through
relevant documentary evidence. Aggrieved by the findings of the Courts below,
this Second Appeal has been filed by the plaintiff in the suit O.S.No.395 of
2011.
8. This Court on 26.04.2017 admitted the Second Appeal by formulating
the following substantial questions of law:
"(1) Whether the Courts below are correct in law in
dismissing the suit for recovery of money from the respondent
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S.A.(MD).No.205 of 2017
Bank, when admittedly the amount lying in the respondent Bank
belongs to the appellant?
(2) Whether the Courts below are correct in law in
holding that the suit is bad for non-joinder of necessary party
namely D.S. Holdings Pvt. Ltd., when the said company was a
party to the earlier proceedings and has suffered a decree in
O.S.No.604 of 2008 on the file of the District Munsif Court,
Tuticorin?
(3) Whether the Courts below are correct in law in
holding that the suit is bared under Order 2 Rule 2 of CPC?
(4) Whether the Lower Appellate Court is correct in law in
not framing the points for consideration as required under
Order 41 Rule 31 of CPC?
(5) Whether the judgments of the Courts below are
perverse in misleading and misconstruing the evidence on
record?"
9. Discussion:
Admittedly D.S. Holdings (Australia) Private Limited is the seller of the
imported goods and the plaintiff is the buyer. The plaintiff claims that though
she had agreed to import 580.60 tonnes of iron scrap from D.S. Holdings
(Australia) Private Limited, there was a shortage of 22.740 tonnes of iron scrap
when it was actually received by her. The plaintiff claims that she has paid the
entire sale consideration of Rs.9,47,411.84/- to D.S. Holdings (Australia)
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S.A.(MD).No.205 of 2017
Private Limited for the entire quantity of 580.60 tonnes of iron scrap through
the defendant Bank. The plaintiff claims that since there is a shortage of 22.740
tonnes of iron scrap delivered by D.S. Holdings (Australia) Private Limited, the
seller is not entitled for the entire sum of Rs.9,47,411.84/-. According to the
plaintiff, she has remitted an excess amount of Rs.4,49,964.96/- with the
defendant Bank towards the sale price payable to M/s.D.S. Holdings (Australia)
Private Limited, which has got to be refunded by the defendant Bank since
there was a shortage of 22.740 metric tonnes of iron scrap delivered by
M/s.D.S. Holdings (Australia) Private Limited. Earlier, the plaintiff had filed a
suit O.S.No.604 of 2008 seeking for permanent injunction restraining the
defendant Bank from paying a sum of Rs.4,49,964.96/- to M/s.D.S. Holdings
(Australia) Private Limited on account of the shortage of 22.740 tonnes of iron
scrap. The Trial Court in O.S.No.604 of 2008 has also decreed the suit for
injunction in favour of the plaintiff and the said judgment and decree was also
marked as exhibits A3 and A4. In the said suit, D.S. Holdings (Australia)
Private Limited, the seller was a party first defendant and the defendant Bank
was the party second defendant. However, in the subsequent suit, which is the
subject matter of consideration in this Second Appeal, D.S. Holdings
(Australia) Private Limited has not been arrayed as a party defendant. Both the
Courts below have concurrently held that the suit O.S.No.395 of 2011 filed by
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S.A.(MD).No.205 of 2017
the plaintiff for recovery of a sum of Rs.4,49,964.96/- from the defendant Bank
is not maintainable for non-joinder of necessary party, namely, M/s.D.S.
Holdings (Australia) Private Limited, the seller of the imported consignment to
the plaintiff. This Court does not find any infirmity in the findings of the
Courts below. However, the defendant (D.W.1) during his cross-examination as
seen from his deposition has made a statement that the sum of Rs.4,49,964.96/-
is still retained with the defendant Bank and they have not remitted the same to
M/s.D.S. Holdings (Australia) Private Limited. D.W.1 has also stated that the
defendant Bank will abide by any orders passed by the Court with regard to
whom the said sum of Rs.4,49,964.96/- has to be disbursed.
10. The learned counsel for the appellant would now submit that the
plaintiff is willing to implead M/s.D.S. Holdings (Australia) Private Limited in
the suit, if the matter is remanded back to the Trial Court for fresh consideration
after impleading M/s.D.S. Holdings (Australia) Private Limited, the seller of
the imported consignment.
11. Under the normal circumstances, this Court would not have
entertained the request made by the learned counsel for the appellant. But in
the present case, as seen from the evidence available on record, D.W.1 has
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S.A.(MD).No.205 of 2017
himself admitted that the sum of Rs.4,49,964.96/- is still retained by the
defendant Bank, which is the amount towards the value of the shortage of
22.740 tonnes of iron scrap and D.W.1 has also stated that the defendant Bank
will abide by any directions given by the Court. Therefore, no prejudice will be
caused to any of the parties, if the matter is remanded back to the Trial Court to
enable the plaintiff to implead M/s.D.S. Holdings (Australia) Private Limited,
the seller and on impleading the said party, the Trial Court is directed to
consider the claim of the plaintiff afresh based on the pleadings, additional oral
and documentary evidence of the respective parties to the suit. D.S. Holdings
(Australia) Private Limited is a necessary party for the effective adjudication of
the suit. Having not made D.S. Holdings (Australia) Private Limited as a party
defendant in the suit, necessarily without giving an opportunity to D.S.
Holdings (Australia) Private Limited to defend the suit, the suit filed by the
plaintiff for recovery of sum of Rs.4,49,964.96/- together with interest and
costs cannot be adjudicated on merits and in accordance with law. The
defendant Bank acted only as an intermediary for the purpose of remitting the
funds to M/s.D.S. Holdings (Australia) Private Limited and therefore, without
hearing the seller, D.S. Holdings (Australia) Private Limited, a money decree
cannot be passed in favour of the plaintiff against the defendant.
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S.A.(MD).No.205 of 2017
12. The substantial questions of law formulated by this Court on
26.04.2017 while admitting this Second Appeal are answered by holding that
the Courts below have rightly dismissed the suit for non-joinder of necessary
parties. But, in view of the fact that D.W.1 has admitted in his deposition that
the amount of Rs.4,49,964.96/- is still retained by the defendant Bank and they
will abide by any directions given by the Court, the matter is being remanded
back to the Trial Court to enable the plaintiff to implead M/s.D.S. Holdings
(Australia) Private Limited as a party defendant in the suit within a time frame
fixed by this Court for the effective adjudication of the suit in the interest of all
the parties to the dispute.
13. For the foregoing reasons, the judgment and decrees of the Courts
below, namely, the judgment and decree passed in O.S.No.395 of 2011 dated
31.01.2014 and the judgment and decree passed in A.S.No.6 of 2014 dated
27.02.2015 are hereby set aside and the matter is remanded back to the Trial
Court, namely, the Sub Court, Tuticorin in O.S.No.395 of 2011 for fresh
consideration on merits and in accordance with law provided the
appellant/plaintiff files a necessary impleading application to implead M/s.D.S.
Holdings (Australia) Private Limited as a party second defendant in the suit
within a period of fifteen (15) days from the date of receipt of a copy of this
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S.A.(MD).No.205 of 2017
judgment and on filing of the said application and after impleading M/s.D.S.
Holdings (Australia) Private Limited by an order of the Trial Court, the Trial
Court after permitting both the parties to let in additional evidence both oral
and documentary in addition to the existing oral and documentary evidence
shall pass a judgment and decree within a period of six (6) months from the
date when M/s.D.S. Holdings (Australia) Private Limited has been impleaded
as a party defendant to the suit. M/s.D.S. Holdings (Australia) Private Limited
is also permitted to file its written statement once they are impleaded as a party
defendant in the suit.
14. In the aforementioned terms, this Second Appeal is disposed of.
There shall be no order as to costs. Consequently, connected miscellaneous
petition stands closed.
05.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
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S.A.(MD).No.205 of 2017
To
1.The Sub Court,
Tuticorin.
2.The Principal District Court,
Tuticorin.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD).No.205 of 2017
ABDUL QUDDHOSE, J.
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S.A.(MD).No.205 of 2017
05.06.2023
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