JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned Advocate Mr. Kuldeep Acharya for learned Advocate Mr. Mrugen Purohit on behalf of the appellants and learned Advocate Mr.Nagesh Sood on behalf of respondent no. 1. None present for respondent no. 2. 2. By way of this appeal the appellants have assailed judgment and decree passed by the learned City Civil Court, Ahmedabad dated 28.02.2002 in Civil Suit No. 4859 of 1990 instituted by the respondent no. 1 herein. 3. For the sake of convenience the parties would be referred to as per their status in the civil suit. 4. It appears that the original plaintiff- bank had instituted the suit inter-alia contending that the original defendant no. 1 was holding a savings Bank account in the plaintiff-bank and whereas in lieu of such savings bank account a cheque book had been issued and whereas the defendant no. 1 had issued a cheque bearing no. 406338 dated 05.11.1987 for Rs. 14000/- drawn on the plaintiff bank in favour of the defendant no. 2. It appears that the said cheque had been dishonoured on account of funds being insufficient and whereas such dishonour had occurred for the first time on 19.04.1988. It appears that thereafter the cheque was again presented by defendant no. 2 and was sent to clearing house on 22.04.1988 and whereas the said cheque again returned by the plaintiff-bank and whereas since the cheque had not been received by the bank of defendant no. 2 i.e Punjab National Bank, the later bank had made payment of Rs. 14,000/- to the defendant i.e the cheque amount. It appears that the said amount was credited in suspense account and after obtaining permission from the Controlling Authority an overdraft facility was created in the account of the defendant no. 1 and the entry in the suspense account was reversed and whereas the plaintiff- bank had thereafter called upon the defendant no. 1 to liquidate the said amount but he had refused to pay any amount and whereas upon a legal notice being caused to the issued by plaintiff-bank, the defendant no. 1 had rejected the request of making the payment of the amount in favour of the plaintiff-bank and whereas a notice sent to defendant no. 2 for making appropriate payment had remained unanswered and therefore, the plaintiff-bank had instituted the suit for recovery of the amount in question. 1 had rejected the request of making the payment of the amount in favour of the plaintiff-bank and whereas a notice sent to defendant no. 2 for making appropriate payment had remained unanswered and therefore, the plaintiff-bank had instituted the suit for recovery of the amount in question. 4.1 It appears that by way of the impugned judgment and decree, the learned Civil Court had declared that the plaintiff was entitled to recover an amount to the tune of Rs. 19302.25 from defendants no. 1/1 to 1/3 jointly and severally with running interest on the sum of Rs. 13,800/- @ 16.5% per annum from 26.04.1988 till actual realization. It is also required to be noted that as far as defendant no. 2 was concerned, the suit had been dismissed. 5. Learned Advocate for the appellant has assailed the impugned decision by submitting that as such the defendant no. 1 had never instructed the plaintiff- bank to open an overdraft facility on behalf of the defendant no. 1. Learned Advocate would submit that the plaintiff- bank had of its own had created an overdraft facility and passed on payment to the bank of respondent no. 2 and whereas for such unilateral decisions of the plaintiff-bank, the defendant no. 1 could not be held liable in any manner whatsoever. Learned Advocate would further submit that as it is, the cheque issued to defendant no. 2 was given as a security, more particularly in lieu of some transaction between the son of defendant no. 1 and the defendant no. 2 and whereas there was no understanding that the cheque would be presented or the cheque would be honoured. Learned Advocate would submit that on account of presentation of the cheque, and whereas though the cheque had been dishonoured even for a second time, yet the plaintiff- bank had made payment to the bank of the defendant no. 2 who had actually made the payment to defendant no. 2, inspite of the plaintiff- bank not being under any obligation to do the same and whereas according to learned Advocate, the defendant no. 1 was not required to in any way make any payment to the plaintiff more particularly on account of some mistaken actions taken by the plaintiff- bank. 2, inspite of the plaintiff- bank not being under any obligation to do the same and whereas according to learned Advocate, the defendant no. 1 was not required to in any way make any payment to the plaintiff more particularly on account of some mistaken actions taken by the plaintiff- bank. Submitting thus, learned Advocate would request this Court to set aside the impugned decision more particularly submitting that the learned Civil Court had committed a mistake in appreciating the evidence led on behalf of the defendant no. 1 and whereas learned Advocate would further submit that in any case, assuming without admitting that the defendant no. 1 was liable to make good the amount paid by the plaintiff to the bank of the defendant no. 2 then also the defendant no. 1 was not having any agreement with the plaintiff-bank with regard to payment of interest @ 16.5%. Learned Advocate would submit that the learned Civil Court, without any material whatsoever also having awarded interest @ 16.5% from the date of filing of the suit therefore also the impugned decision deserves to be set aside. 6. This appeal has been vehemently objected to by learned Advocate Mr. Nagesh Sood on behalf of the plaintiff- bank. Learned Advocate would submit that no error whatsoever has been committed by the learned Civil Court, which would require interference by this Court. Learned Advocate would submit that as such, the learned Civil Court, had gone by the principle of unjust enrichment as per Section 70 and Section 72 of the Contract Act and had applied the doctrine of restitution which is a consequence of the unjust enrichment and whereas the learned Civil Court having come to the conclusion that there was an unjust enrichment had directed restitution of the amount and whereas no error has been committed on that count by the learned Civil Court. 6.1 Learned Advocate Mr. Sood in support of his contention with regard to unjust enrichment relied upon judgments of the Hon’ble Supreme Court in case of K.S. Satyanarayana vs. V.R. Narayana Rao, (1999) 6 SCC 104 and decision in case of Mahabir Kishore and Others vs. State of Madhya Pradesh, (1989) 4 SCC 1 . Learned Advocate Mr. Sood would submit relying upon the said decisions that defendant no. 1 had been enriched on account of the payment made by the bank to the defendant no. Learned Advocate Mr. Sood would submit relying upon the said decisions that defendant no. 1 had been enriched on account of the payment made by the bank to the defendant no. 2 which amount had been reimbursed by the plaintiff-bank. Learned Advocate would elaborate by stating that since the defendant no. 1 had issued a cheque in favour of defendant no. 2, he was under an obligation to make payment as per the amount of the cheque and whereas since the said amount had been paid by the bank to the defendant no. 2 which amount had been paid by the plaintiff- bank to the bank of defendant no. 2 therefore the dues of defendant no. 1 to the defendant no. 2 was taken care of. Learned Advocate would submit that since it was ultimately the defendant no. 1 who had benefited by such transaction. Therefore the defendant no. 1, could be stated to have been enriched unjustly and therefore as a consequence thereof, restitution would be called for and whereas according to learned Advocate the same had been ordered by the learned Civil Court and under such circumstances according to learned Advocate, no interference may be done by this Court with the impugned decision. 7. Heard learned Advocates for the respective parties who have not submitted anything further and perused the record and proceedings of the learned Civil Court. The following issues arise for consideration of this Court: [1] Whether the defendant no. 1 could be stated to be beneficiary of unjust enrichment? [2] Whether the learned Trial Court was justified in directing restitution, which is a consequence of unjust enrichment? [3] Whether the judgment and order passed by the learned Trial Court is liable to be interfered with? [4] What order? The answer to the issues framed for consideration are as follows: [1] In Negative [2] In negative [3] In affirmative [4] As per final order 8. At the outset what is required to be noted or appreciated is the working of the principle of unjust enrichment which has been relied upon by the learned Civil Court and which is in turn relied upon by learned Advocate for the plaintiff. The principle of unjust enrichment has been succinctly explained by the Hon’ble Supreme Court in case of K.S. Satyanarayana (supra) relied upon by learned Advocate for the plaintiff. The principle of unjust enrichment has been succinctly explained by the Hon’ble Supreme Court in case of K.S. Satyanarayana (supra) relied upon by learned Advocate for the plaintiff. The Hon’ble Supreme Court has inter alia observed that the first condition for unjust enrichment is that a person should lawfully do something for another person or deliver something to him, the second condition being that the said thing or delivering the said thing must not be intended to be done gratuitously and the third condition being that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. The said explanation flowing from Section 70 of the Indian Contract Act, which reads as under: “70. Obligation of person enjoying benefit of non-gratuitous act - Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.” 9. In this context, it would be required to be appreciated that the plaintiff- bank never made any payment to the defendant no. 1. It was the bank of the defendant no. 2 which had actually made the payment to defendant no. 2 and whereas it appears that the same had occurred on account of some miscommunication between both the banks whereas the plaintiff bank could not communicate the fact of cheque of the defendant no. 1 drawn in favour of defendant no. 2 having been dishonoured, in time. It also appears that on account of some internal arrangement or practice as has been contended, the plaintiff- bank had reimbursed the money paid by the bank of the defendant no. 2 in favour of defendant no. 2 without any instructions in that regard from the defendant no. 1. 9.1 As noted hereinabove, the principle of unjust enrichment postulates that a person should do something lawfully for another person or deliver something to him. The facts of the case here as discussed above would show that the money had never been paid by the plaintiff-bank to the defendant no. 1. It was paid by a bank which was not party to the suit proceedings to the defendant no. The facts of the case here as discussed above would show that the money had never been paid by the plaintiff-bank to the defendant no. 1. It was paid by a bank which was not party to the suit proceedings to the defendant no. 2 and whereas the plaintiff bank had paid the said amount to the bank of defendant no. 2 and whereas there is nothing on record shown to the Court below whereby, the liability had passed on from the bank of defendant no. 2 to the plaintiff- Bank. 10. It also requires to be noted here that even if assuming in favour of the plaintiff bank that the money paid by the bank of defendant no. 2 and reimbursed by the plaintiff- bank therefore the plaintiff-bank would have a right to sue for unjust enrichment then also the question which would require consideration is that could such suit have been maintainable against defendant no. 1 since the money had never come to defendant no. 1 rather the payment had been made to defendant no. 2 herein. 11. As noted hereinabove, it appears that the cheque had been initially dishonoured on account of insufficiency of funds in the account of defendant no. 1 and whereas upon being presented again the cheque had been dishonoured at the stage of the clearing house of the plaintiff-bank and whereas it is only on account of the miscommunication between the plaintiff-bank and bank of the defendant no. 2 that amount of the cheque had been paid by the bank of defendant no. 2 to the defendant no. 2. The transaction views from the perspective of the explanation of the term ‘unjust enrichment’ by the Hon’ble Supreme Court would appear as that the delivery of the amount had been received by the defendant no. 2 from his Bank, which was not party to the proceedings, undoubtedly the same was not a gratuitous act on part of the bank of the defendant no. 1 since it appears that they had not been intimated about the dishonour of the cheque of the defendant no. 1, the third condition of enjoyment by the other person also appears to be fulfilled, more particularly the other person being the defendant no. 2 and since the thing delivered was money, enjoyment /usage/ retention would be the most natural presumption. Thus it becomes clear that the defendant no. 1, the third condition of enjoyment by the other person also appears to be fulfilled, more particularly the other person being the defendant no. 2 and since the thing delivered was money, enjoyment /usage/ retention would be the most natural presumption. Thus it becomes clear that the defendant no. 1 was not beneficiary of unjust enrichment and therefore, the doctrine of restitution which follows the principle of unjust enrichment, could not be brought out against the defendant no. 1. As it is as is clear from the discussion hereinabove, inspite of the cheque given by defendant no. 1 not getting cleared from the bank of defendant no. 1 i.e the plaintiff – bank yet the defendant no. 2 had received the amount. In the considered opinion of this Court, even if the plaintiff bank were entitled to sue for unjust enrichment, then such suit could have been brought out only against defendant no. 2 and whereas such suit against defendant no. 1 and the decision of the learned Civil Court directing defendant no. 1 to make good the loss or to restitute the amount paid by the plaintiff- bank to defendant no. 2, in the considered opinion of this Court cannot be sustained. 12. It also requires to be mentioned here that the plaintiff Bank had unilaterally reimbursed the amount of cheque paid by the bank of defendant no. 2 to him. The said action appears to be on account of some mistake committed by the officers of the plaintiff bank in intimating the fact of dishonour of cheque of defendant no. 1 to the bank of defendant no. 2. Thus while the plaintiff claiming unjust enrichment by the defendant no. 1 actually and in fact, the plaintiff is asking the defendant no. 1 to indemnify the Bank for the amount it paid to the bank of defendant no. 2. In the considered opinion of this Court since the defendant no. 1 was not a beneficiary of unjust enrichment and since all actions of the plaintiff Bank with regard to the account of the defendant no. 1 appears to be unilateral, no actions for recovery could be sustained against the defendant no. 1. 13. 2. In the considered opinion of this Court since the defendant no. 1 was not a beneficiary of unjust enrichment and since all actions of the plaintiff Bank with regard to the account of the defendant no. 1 appears to be unilateral, no actions for recovery could be sustained against the defendant no. 1. 13. In this view of the matter, in the considered opinion of this Court, the judgment and decree suffering from a patent error of law more particularly learned Civil Court having come to the conclusion that defendant no. 1 is under an obligation to make payment of the amount paid to the defendant no. 2, cannot be sustained. It also clearly appears that there is nothing on record to show that there was any agreement between the defendant no. 1 and the plaintiff bank that the defendant no. 1 was required to indemnify the plaintiff- bank for any actions taken by the plaintiff-bank as regards the cheque drawn by defendant no. 1 in favour of the defendant no. 2 herein. 13.1 It also requires to be noted herein that while a cheque being drawn by one party in favour of another party pre-supposes the intention of the drawer to make payment in favour of the drawee but at the same time the law provides for appropriate consequences for dishonour of the cheque and whereas there can always be a reasonable presupposition that the cheque may not always be honoured by the drawer. In the instant case, as it clearly appears, the drawer did not have any intention to make payment to the drawee and whereas inspite thereof, the bank having paid the amount to the drawee of its own, the drawer could not be made liable for any action taken by the bank unilaterally. Under such circumstances in the considered opinion of this Court the impugned decision cannot be sustained and the same is quashed and set aside. The appeal is allowed. 14. Registry to transmit record and proceedings back to the learned Civil Court. Amount deposited by the plaintiff-bank as per direction of this Court vide order dated 09.03.2006 shall be returned back to the defendant no. 1-appellant herein with the interest accrued thereupon. 15. At the request of learned Advocate Mr. Sood on behalf of the defendant no. 14. Registry to transmit record and proceedings back to the learned Civil Court. Amount deposited by the plaintiff-bank as per direction of this Court vide order dated 09.03.2006 shall be returned back to the defendant no. 1-appellant herein with the interest accrued thereupon. 15. At the request of learned Advocate Mr. Sood on behalf of the defendant no. 1 the present judgment is stayed for a period of 60 days from the date of receipt of certified copy of this judgment.