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Rajasthan High Court · body

1998 DIGILAW 223 (RAJ)

DILIP KOTHARI v. VIJAYA BANK

1998-02-13

P.C.JAIN

body1998
Judgment P. C. JAIN, J. ( 1 ) THE defendant has filed this revision petition under Section 115, C. P. C. against the order dated 21-11-1997 passed by the learned Additional District Judge No. 1, Jodhpur in Civil Original Case No. 8/97 whereby the application filed by the defendant-petitioner under Order 6, Rule 5, C. P. C. was dismissed. ( 2 ) MATERIAL facts necessary for the disposal of this petition may be stated as follows. The non-petitioner No. 1 filed a suit for recovery of Rupees 4,47,263. 93 against the petitioner and non-petitioner No. 2, which is pending before the learned Additional District Judge No. 1, Jodhpur. In that suit, the plaintiff made averments that the petitioner had pleaded shares, the list of which has been submitted before the Court giving all the necessary particulars. The petitioner filed an application under Order 11, Rule 14, C. P. C. for production of the said shares. In reply to this application, the plaintiff-Bank said that the pledged shares as mentioned in the plaint, were not with the Bank. It was explained that the shares pledged by the petitioner were returned to the petitioner by the Bank and the petitioner re-pledged the same by pledging new shares. The petitioner, therefore, filed an application under Order 6, Rule 5, C. P. C. for getting clarification from the plaintiff-Bank asking the plaintiff when the petitioner made a request to the plaintiff-Bank for return of the pledged shares, when his request was accepted, when the shares were returned by the Bank to the petitioner and when the new shares were pledged with the Bank in place of the original shares. According to the petitioners, all these particulars are necessary for the plaintiff to narrate in the pleading. In reply to the above application, the non-petitioner No. 1 did not give any particulars sought by the petitioner. The Court dismissed the above application by stating that the plaintiff- Bank is ready and willing to submit the new shares pledged with the Bank. The question is whether the Bank is required to give full particulars in the plaint as asked by the petitioner and required by law to be stated in the pleading ? ( 3 ) I have heard learned counsel for the petitioner and non-petitioner No. 1. The question is whether the Bank is required to give full particulars in the plaint as asked by the petitioner and required by law to be stated in the pleading ? ( 3 ) I have heard learned counsel for the petitioner and non-petitioner No. 1. ( 4 ) SHRI S. S. Purohit, learned counsel for the petitioner, has referred to the pleading (plaint) of non-petitioner No. 1 and submitted that it is very interesting and important to note that in the plaint the plaintiff did not care to allege that the petitioner, after pledging the shares as described in the plaint, came and requested the Bank to release the above certificates and that the non-petitioner was ready to re-pledge another new certificates and that the Bank agreed and accordingly the original certificates pledged by the petitioner were returned to him and he pledged the new certificates. The plaintiff disclosed these new and important facts for the first time when the petitioner moved application under Order 6, Rule 5 CPC. Since the plaintiff has not stated about these new certificates in the pleading, it is necessary that he must furnish better particulars in response to the application filed by the petitioner. Learned counsel has also submitted that the petitioner was making correspondence with the company which issued the original shares requesting for issuing the duplicate. ( 5 ) LEARNED counsel for the respondent has opposed the application filed by the petitioner under Order 6, Rule 5 and submitted that when a notice was issued by the petitioner under Order 11, Rule 16, CPC, the plaintiff in his reply stated all these facts and gave the material particulars of the certificates which were re-pledged at the request of the petitioner by the Bank. Learned counsel has also referred to the reply submitted by the plaintiff to the above application in which it was clearly stated that the plaintiff furnished the list of the shares which were pledged on 8-6-94. It also contains the signatures of defendant No. 1. He also submitted that in reply to the notice of the petitioners advocate all the details were given and the learned trial Court has not committed any error in dismissing the application of the petitioner. ( 6 ) I have considered the arguments and have also perused the necessary documents. It also contains the signatures of defendant No. 1. He also submitted that in reply to the notice of the petitioners advocate all the details were given and the learned trial Court has not committed any error in dismissing the application of the petitioner. ( 6 ) I have considered the arguments and have also perused the necessary documents. ( 7 ) AT the very outset I would like to state that the shares which were allegedly re-pledged by the petitioner with the Bank were produced before the Court and I pointedly asked the learned counsel for the petitioner whether these certificates were genuine and owned by the petitioner. First, he sought an adjournment and then on the day the petition was argued, he did not deny that the above certificates were belonging to the petitioner. It is also pertinent to state that the plaintiff made this fact known to the defendant-petitioner when he sent the reply to the notice given by the petitioner on 29-4-97. ( 8 ) FROM the above it appears that the certificates, which are at present in possession of the Bank, are genuine and belonged to the petitioner. The petitioner, however, could not supply any other relevant information as to how the Bank came into possession of the above certificates. He was also not informative as to how the Bank came into possession of the above shares. If he denied that the above certificates were not pledged by him with the Bank, the obvious inference would be that the Bank acquired the certificate fraudulently or at any rate without the consent of the plaintiff. It is also not disputed that the petitioner was made aware of these certificates when the plaintiff sent reply to the notice. It is surprising that thereafter also the petitioner has not taken any action against the Bank challenging the custody of the Bank in respect of the above certificates which are presently in possession of the Bank. In this connection, the explanation offered by the plaintiff is that after pledging the original shares, defendant No. 1, petitioner, came to the Manager of the Bank and expressed his desire to re-pledge the original certificates by the new certificates and the Bank Manager acceded to the request of the defendant and the original shares were returned to the defendant No. 1 and he re-pledged the same by the present shares. It appears that the Bank Manager inadvertently or negligently did not refer this transaction in writing but since the petitioner has not challenged the genuineness of the above certificates and has also not challenged the nature of custody of the Bank, the likelihood is that the explanation offered by the plaintiff may be correct. ( 9 ) FROM the above, I further conclude that the petitioner must be aware as to what transpired resulting in the re-pledgement of the shares. The reply by the plaintiff in response to the application under Order 6, Rule 5 is part of the pleading. I, therefore, hold that the whole transaction regarding the re-pledgement of the shares must be within the knowledge of the petitioner. Hence, in these circumstances, there was no necessity for the plaintiff to supply particulars sought by the defendant No. 1 in his application moved under Order 6, Rule 5, CPC. The learned trial Court has, therefore, not committed any irregularity or illegality in the exercise of jurisdiction. There is no force in the revision petition. The same is hereby dismissed. Petition dismissed.