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2009 DIGILAW 1072 (JHR)

Bank of India v. A. V. Paniker

2009-08-04

D.N.PATEL

body2009
JUDGMENT 1. The present petition has been preferred against an order passed by the learned Sub Judge-VI, Ranchi, in Title Suit No. 36 of 1999 dated 31st July, 2008 (Annexure 4 to the memo of petition) whereby, an application, preferred by defendant no.1 (Bank of India, Head Officer, Express Towers, Nariman Point, Mumbai) and the present petitioner (Bank of India, Clubside Branch, Ranchi-original defendant no.2) dated 14th May, 2008 for reopening the stage of taking evidence of defendant nos. 1 and 2 was dismissed by the trial court and, therefore, against this order of dismissal and as the stage of taking evidence has been closed vide order dated 10th March, 2008, the present petition has been preferred, so that the stage of taking evidence may be opened and a very vital document, namely, hypothecation deed dated 6.2.1995 along with other relevant documents can be presented by the petitioner (Bank of India, Clubside Branch, Ranchi) before the trial court, so that the trial court can come to a correct conclusion about the dispute between the parties. 2. It is vehemently contended by the learned counsel for the petitioner (original defendant no.2) that the said document will facilitate the trial court in dispensing the justice to the parties to the suit. It is also submitted by the learned counsel for the petitioner that a written statement was already filed by the present petitioner and as per paragraph no.13 of the written statement, the original plaintiff i.e. present respondent no.1 had taken cash credit facility, worth Rs.2,00,000/-, which was later on enhanced up to Rs.3,00,000/-, upon hypothecation of Gas Cylinders and the present petitioner (original defendant no.2) wants to present this document of hypothecation before the trial court. Likewise, other relevant documents are also to be presented before the trial court, so that the trial court may come to a correct conclusion about the dispute between the parties. 3. Learned counsel for the petitioner has submitted that as stated in paragraph no.15 of the memo of present petition, the concerned lawyer has now been changed on behalf of the Bank of India before the trial court. Earlier for want of proper care on the part of the lawyer, an attention was not drawn to the petitioner (Bank of India, Clubside Branch, Ranchi) that the stage of taking evidence of defendant nos. Earlier for want of proper care on the part of the lawyer, an attention was not drawn to the petitioner (Bank of India, Clubside Branch, Ranchi) that the stage of taking evidence of defendant nos. 1 and 2 has been closed down by the trial court vide order dated 10th March, 2008. It is also submitted by the learned counsel for the petitioner that no sooner did the petitioner come to know that an order has been passed on 10th March, 2008, immediately on th May, 2008 i.e. within two months and four days from the date of order, an application has been preferred for opening of the stage of taking evidence. In fact, from the date of knowledge of the order dated 10th March, 2008, within a week’s time such an application has been preferred and the said application has been dismissed on 31st July, 2008, without appreciating the fact that the petitioner (Bank of India, Clubside Branch, Ranchi) has already stated in paragraph no.13 of the written statement about the deed of hypothecation, which the petitioner (defendant no.2) wants to produce before the trial court, along with other relevant documents, so that the trial court may come to a correct conclusion about the dispute between the parties. This aspect of the matter has not been properly appreciated by the trial court and hence, the impugned order passed by the trial court dated 31st July, 2008 in Title Suit No. 36 of 1999 deserves to be quashed and set aside. 4. I have heard learned counsel appearing on behalf of respondent no.1, who has vehemently submitted that the petitioner (defendant no.2) is thoroughly negligent in presenting the documents before the trial court, though they were in its custody. Number of adjournments were given by the trial court, but, lethargic approach has been continued on every date of adjournment and when the stage of taking evidence is closed down by the trial court vide order dated 10th March, 2008, an application has been preferred and, therefore, rightly the same has been dismissed by the trial court vide order dated 31st July, 2008. It has also been submitted by the learned counsel for respondent no.1 (original plaintiff) that because of the letter, written by the present petitioner (defendant no.2) dated 26th February, 1996, the Gas Agency of respondent no.1 was cancelled by original defendant no.3 and a heavy damage has been sustained by the original plaintiff and, therefore, the suit has been instituted for damages. Learned counsel for respondent no.1 has also drawn the attention of this Court upon a letter, written by the petitioner-Bank of India dated 29th March, 1996, which is annexed as Annexure C to the counter affidavit in this writ petition and the same is also exhibited as Ext. No. 6/D in Title Suit No. 36 of 1999. It is submitted by the learned counsel for respondent no.1 that the claim for damages canvassed by the original plaintiff is fortified by the document at Ext. 6/D. In fact, by the aforesaid document (Ext. 6/D) the petitioner (defendant no.2-Bank of India) admits the whole claim of the original plaintiff. It is, therefore, submitted by the learned counsel for respondent no.1 that in view of the aforesaid facts and circumstances, this writ petition deserves to be dismissed and the order, passed by the trial court dated 31st July, 2008 may not be interfered with by this Court 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the impugned order dated 31st July, 2008, passed by the learned Sub Judge-VI, Ranchi, in Title Suit No. 36 of 1999 (Annexure 4 to the memo of petition) for the following facts and reasons: (i) Present respondent no.1 is the original plaintiff and the present petitioner is the original defendant no.2. Respondent no.1 has instituted Title Suit No. 36 of 1999 against the Bank of India, Head Office, Express Towers, Nariman Point, Mumbai (defendant no.1), The Bank of India, Clubside Branch, Ranchi (defendant no.2-the present petitioner) as well as against the Bihar Air Products Ltd., Singhbhum (defendant no.3) for damages and for a declaration that the cancellation of dealership agreement is void. (ii) It appears that the plaintiff has to file the suit because of one letter, written by the original defendant no.2 .i.e. by the petitioner-Bank of India, Clubside Branch, Ranchi, which is dated 26th February, 1996. (ii) It appears that the plaintiff has to file the suit because of one letter, written by the original defendant no.2 .i.e. by the petitioner-Bank of India, Clubside Branch, Ranchi, which is dated 26th February, 1996. By this letter, the petitioner-Bank of India, Clubside Branch, Ranchi, had informed the original defendant no.3 that it has advanced 4. some amount upon the hypothecation of the gas cylinders and on the basis of this letter, defendant no.3 has cancelled the dealership agreement. Some criminal action has also been instituted by defendant no.3 against the plaintiff-respondent no.1. (iii) It also appears that there is a dispute about the ownership of the gas cylinders. Upon a commodity, which is not belonging to the plaintiff, a hypothecation was given and a loan was taken by the plaintiff-respondent no.1. However, this Court is not concerned with the dispute pending before the trial court. Suffice it to say that because of some letter by original defendant no.2, the dealership agreement of the plaintiff was cancelled and, therefore, the plaintiff instituted a suit for damages, bearing Title Suit No. 36 of 1999 and in the said suit a very tall claim of damages has been made by the original plaintiff. To deny this tall claim of damages, a written statement has already been filed by defendant nos. 1 and 2 (Annexure 1 to the memo of petition) and in paragraph no.13 thereof, stand has already been taken that the plaintiff has got cash credit facility upon hypothecation of gas cylinders. (iv) It also appears that petitioner-Bank of India, Clubside Branch, Ranchi, wants to present before the trial court the deed of hypothecation as well as other relevant documents to support the written statement and paragraph no.13 thereof. (v) It also appears from the facts of the case that lawyer of the present petitioner had not informed about the order, passed by the trial court dated 10th March, 2008, closing down the stage of taking evidence of defendant nos.1 and 2. In fact, the document ought to have been presented at much earlier point of time, once the said document or documents is/are referred in the written statement. (vi) It also appears that there is no lethargic approach on the part of the petitioner (defendant no.2-Bank of India). For want of proper care on the part of a lawyer, no party should be allowed to suffer. In paragraph no. (vi) It also appears that there is no lethargic approach on the part of the petitioner (defendant no.2-Bank of India). For want of proper care on the part of a lawyer, no party should be allowed to suffer. In paragraph no. 15 of the written statement, filed by defendant nos. 1 and 2, it has been stated that the said lawyer in the trial court on behalf of the Bank of India has been changed and no sooner did 5. they come to know that such order has been passed on 10th March, 2008, within a week’s time from the date of their knowledge, an application was preferred by the Bank of India on 14th May, 2008 for recalling the order dated 10th March, 2008, so that the stage of taking evidence, which was closed down by order dated 10th March, 2008, may be reopened and the Bank of India may be permitted to present the documents, which affect the very root of the case and the documents, which are very much necessary for arriving at a true conclusion of the dispute between the parties and the documents, which are indispensable for dispensing the justice, in support of their written statement. (vii) Learned counsel appearing on behalf of the plaintiff submitted that the date of knowledge is not correctly stated as, in fact, in between 10th March, 2008 and the date on which an application was preferred by the petitioner, five dates were given by the trial court. (viii) Be that as it may, the fact remains that within two months and four days an application has been preferred by the petitioner-Bank of India. Looking to the dispute between the parties, there is no negligence on the part of the petitioner-Bank of India and for want of proper care on the part of the lawyer, no party should be allowed to suffer, especially when the petitioner-Bank of India wants to present the documents to prove the facts, which are already stated in the written statement. No new case has been pleaded by the petitioner-Bank of India and, thus, no prejudice is going to cause to the original plaintiff i.e. respondent no.1, if the stage of taking evidence is reopened. 6. No new case has been pleaded by the petitioner-Bank of India and, thus, no prejudice is going to cause to the original plaintiff i.e. respondent no.1, if the stage of taking evidence is reopened. 6. In view of the aforesaid facts and reasons, I hereby quashed and set aside the impugned order dated 31st July, 2008, passed by the trial court, in Title Suit No. 36 of 1999, as the aforesaid aspect of the matter has not been properly appreciated by the trial court. The petitioner-Bank of India is permitted to present the documents at a time, whatever documents it wants to present before the trial court, as much time has lapsed after institution of Title Suit No. 36 of 1999. I hereby direct the trial court to dispose of Title Suit No. 36 of 1999 or on before 30th October, 2009. The suit will be conducted on day to day basis and it is stated by both the counsels that they shall not ask for unnecessary adjournment. Neither any unnecessary adjournment shall be sought for by the parties nor shall be granted by the trial court. 7. I, therefore, hold that for want of proper care on the part of a lawyer, no party should suffer and, therefore, the application preferred by the present petitioner-Bank of India (original defendant no.2) dated 14th May, 2008 is hereby allowed with a cost of Rs.1,000/-to be paid to the plaintiff before the court below.