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2007 DIGILAW 1150 (DEL)

CHANAKYA AND CO. v. KAY AAR DECOBUILD PVT. LTD

2007-05-28

J.M.MALIK

body2007
J. M. MALIK, J. ( 1 ) ARGUMENTS heard. This is an indisputable fact that the appellant had to pay an amount of Rs. 25,000/- to the respondent. The appellant tried to pay back that money through a bank draft issued by Parishad Cooperative Bank which subsequently went into liquidation. The money therefore could not be paid to the respondent. Counsel for the appellant has drafted the following substantial question of law:- "1. Whether the appellant who paid the dues through bank draft to the respondent is again liable to pay in case, if the payment is denied by the Banker of the appellant. " ( 2 ) COUNSEL for the appellant pointed out that the appellant had got the directions from the respondent to pay the amount by the above said bank but he has failed to adduce evidence in this respect. He has drawn my attention towards illustration (a) appended to Section 50 of the Indian Contract Act which runs as follows: section 50: Performance in manner or at time prescribed or sanctioned by promisee.- The performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions. Illustration (a) B owes A 2,000 rupees. A desires B to pay the amount to a's account with C, a banker. B, who also banks with C, orders the amount to be transferred from his account to A's credit, and this is done by C. Afterwards, and before A knows of the transfer, C fails. There has been a good payment by B. " ( 3 ) A perusal of the illustration (a) goes to show that it is specifically stated "as desired" by the appellant. There is no material on record which may go to show that the respondent had desired that the bank draft be issued through parishad Cooperative Bank only. If the bank has gone into liquidation, respondent cannot be held responsible for the same nor it can be assumed that the money stands paid to the respondent. ( 4 ) COUNSEL for the appellant has drawn my attention towards para 6 of the written statement which is reproduced as follows:- "6. If the bank has gone into liquidation, respondent cannot be held responsible for the same nor it can be assumed that the money stands paid to the respondent. ( 4 ) COUNSEL for the appellant has drawn my attention towards para 6 of the written statement which is reproduced as follows:- "6. That in reply to Para No. 6 of the plaint, it is submitted that the defendants had also been making payments to M/s Hindustan Plywood Company by cash and when they insisted that the payments be made by Bank drafts. The defendants made the payment by pay orders of the bank. The said pay orders referred to in para 6 of the plaint were got issued by the Defendants from the bank, in favour of M/s Hindustan Plywood Company, after making payments to the bank and upon instructions of M/s Hindustan Plywood Company. The Defendants were never informed about the dishonour of the said pay orders by M/s Hindustan plywood till notice dated 25. 5. 1995 of their advocate nor did M/s Hindustan plywood Co. returned the said pay orders to the Defendants in time. There is no fault of the Defendants, if said pay orders were not honoured by the Bank as these are the bank's pay orders and not of the Defendants. The Defendants can not be compelled to make the payments twice. The Plaintiff or M/s Hindustan plywood Company as the case may be should have immediately taken action on the bank. The para is accordingly, denied. " ( 5 ) A perusal of the above said written statement clearly goes to show that there is no inkling in the pleadings that the respondent had desired that the amount should be paid through Parishad Cooperative Bank which is not a nationalised bank. It is admitted fact that no evidence was adduced in this context. ( 6 ) THE First Appellate Court has rightly held that : "if the bank has not honoured the drafts, the defendant can have remedy against the bank but they are liable to pay price of goods to the plaintiff. Therefore, i find no merit in this plea. " ( 7 ) APPEAL has no merit, the same is therefore dismissed in limine. CM 8355/2004 in view of the dismissal of the appeal, no further orders are required to be passed in this application. The application is also dismissed.