BANK OF INDIA Vs. LAKSHIMANI DASS

JUDGEMENT

(1.) For purposes of convenience, we refer to the parties as arrayed in the original suit out of which this appeal arises. Shital Chandra Das and Karmadhar Das filed Title Suit No. 77/59 in the Court of Subordinate Judge at Alipore against Madhuri Choudhary, daughter-in-law of the original lessee of a godown bearing No. 103/1B Raja Dipendra Street, Calcutta. The sub-tenants Brij Kishore Bhagat, Nawal Kishore Bhagat and Durga Devi Bhagat were also impleaded in the said suit as defendants. The said suit was decreed on September 30,1963 against all the defendants, including Brij Kishore Bhagat, Nawal Kishore Bhagat and Durga Devi Bhagat. The plaintiffs in that suit levied execution in Case No. 18/63 in which warrant for delivery of possession of the disputed premises was issued. In the disputed godown there were racks on which oil seeds were stacked. Inasmuch as the said oil seeds could not be immediately removed, the plaintiffs therein obtained delivery of possession of the godown along with oil seeds stacked in several bags. The said oil seeds were kept in the custody of Sitaram Roy, an officer of the plaintiffs by the process-server of the Court. Thereafter the Bank of India, defendant No. 1 in the suit, filed an application under Order XXI Rule 101 of the Civil Procedure Code (CPC) claiming that the Bank was in possession of the godown as a pledgee of the goods from an alleged partnership firm, namely, M/s. Bansidhar Baijnath and Brij Kishore Bhagat, Durga Devi Bhagat and Nawal Kishore Bhagat, who are stated to be the partners of the said firm. M/s Bansidhar Baijnath, the firm, also filed an application under Order XXI Rules 100 and 101, CPC claiming to be in possession of the godown on the date of the delivery of the possession. These applications were registered as Miscellaneous Case No. 1/72 and Miscellaneous Case No. 3/72 in the Court of Subordinate Judge, Alipore. The plaintiffs contended that the present defendants were bound by the decree and the claim of possession of M/s. Bansidhar Baijnath or the Bank as pledgee were all baseless. It was also contended that Bhagat group were in possession of the godown on the date of the delivery of the possession. The defendants filed two separate applications in those two miscellaneous cases for restraining the decree holders from removing the stacks of oil seeds from the godown. The ad interim injunction was made absolute on the understanding that the miscellaneous cases would be expeditiously disposed of and an inventory of the oil seeds was made by a Commissioner appointed by the Court . Miscellaneous Case No. 1/72 was filed seeking for a direction upon the defendant No. 1, the Bank, to remove the said oil seeds on the ground that the plaintiffs were suffering substantial loss daily and the goods were perishable. The Subordinate Judge, Alipore, granted leave to the Bank to remove the said goods. Defendant No. 1-Bank, however, applied for modification of the order dated June 27, 1972. A revision petition was filed in the High Court. Before the High Court defendant No. 1 withdrew the petition for removal of the said goods and the order of the Subordinate Judge passed on June 27, 1972 was set aside. In view of the indifference by the defendants, the plaintiffs had suffered loss by way of rent and by not delivering the vacant possession to the Bank by obtaining an order of injunction wrongfully and by not removing the goods in spite of the offers made by the plaintiffs and having kept the goods in spite of the offers made by the plaintiffs, the defendants have become liable to pay compensation. A separate suit was also filed for ascertaining the mesne profits and in the suit out of which these proceedings arise, the plaintiffs claimed damages for wrongfully keeping the said alleged oil seeds from January 15, 1972.

(2.) Defendant No. 1-Bank, contested the suit. It is pleaded that M/s. Bansidhar Baijnath is a partnership firm and a constituent of the Bank which carried on the business of sale and purchase of oil seeds and had its godown in the premises aforesaid. Defendant No. 1 as pledgee had taken possession of the godown together with the goods lying thereon. There were a stock of 3409 bags of Kusum oil seeds in the said godown pledged in favour of defendant No.1. The godown was kept locked by defendant No. 1 with the locks of superior quality put upon the doors of the said godown with the name of the defendant No. 1 engraved thereon and defendant No. 1 had also affixed a name plate and sign board on the said godown. On January 14, 1972 at about 4 p.m. an employee of the Bank was informed through telephone that padlocks were being broken upon and certain locks were being placed thereon. The agent of the defendant-Bank went to the spot to find that the padlocks fixed to the godown had been removed and they had been replaced by other locks. The name plates of the defendant also had been removed. The agent of the Bank was prevented from entering into the godown and making inspection of the pledged goods. A report was also made to the police station on January 14, 1972. It is claimed that defendant No. 1 as pledgee had absolute physical and peaceful possession of the pledged goods in the said godown within the full knowledge of the plaintiffs and thereafter they filed an application under Order XXI Rules 100 and 101, CPC for ascertaining of its legal rights and restoration of possession. The defendant-Bank also claimed no knowledge of the decree in the Title Suit No. 77/59 nor of the proceedings in the Execution Case No. 18/63. Order dated June 27, 1972 in Miscellaneous Case No. 1/72 was made subject to the condition that rights of M/s. Bansidhar Baijnath to be restituted to their original position at the cost of the Bank. In view of the said onerous condition and the said order was likely to create complication leading to multiplicity of proceedings, an application was filed for reconsideration of the said order and on a revision petition being filed against the said order the same was set aside and it is claimed that revision petition had not been withdrawn by the defendant and they had not obtained any order of injunction wrongfully or illegally and so the plaintiffs were not entitled to any damages or compensation. The other defendants admitted that the plaintiffs had obtained khas possession of the godown and the goods along with oil seeds which were kept by the bailiff of the Court in the custody of Sitaram Roy, an officer of the plaintiffs. Those oil seeds belonged to the firm M/s Bansidhar Baijnath and the defendants Nos. 1 to 4 did not conduct business and, therefore, they were not liable to remove the goods which did not belong to them and the Bank is the pledgee of those goods. The defendants did not act for those persons and they did not interfere with the execution of the decree at all. The order of injunction was not obtained illegally. The defendants never prevented the plaintiffs from utilising the godowns and, therefore, they were not liable to pay compensation or damages at all. The plaintiffs having retained the goods in their custody through their officer cannot claim or charge against these defendants any damage. The defendants are, therefore, not, in any way, liable for damages and the claim for compensation made is also highly inflated and the suit deserves to fail.

(3.) On these pleadings 12 issues were raised by the trial Court. The trial Court came to the conclusion that the suit was not bad for misjoinder and non-joinder of parties and the suit was within period of limitation and the plaintiffs had obtained delivery of the disputed godown through Court and there was overwhelming material to that effect. On the question as to who was in possession of the goods and oil seeds in godown kept by the bailiff of the Court in the custody of Sitaram Roy after obtaining the aforesaid delivery of possession of the godown by the plaintiffs, the trial Court answered the same in favour of the plaintiffs to the effect that there can be no dispute on the point that goods and the oil seeds in the godown were kept by the bailiff of the Court in custody of Sitaram Roy, an officer of the plaintiffs, at the time of delivery of possession of the godown. On the question whether these oil seeds belonged to M/s. Bansidhar Baijnath and the partners of the firm, it is held that the goods had been hypothecated to the Bank by M/s. Bansidhar Baijnath which is a partnership firm consisting of partners Brij Kishore Bhagat and Smt. Durga Devi Bhagat and the goods belonged to the Bank of India as holder of security and pledged through the ownership which remained with the partnership firm. The Bank of India as pledgee cannot have any claim on the pledged articles more than money advanced by it. Therefore, the trial Court came to the conclusion that the pledged articles belonged to the parnership firm M/s. Bansidhar Baijnath and the Bank of India is a mere pledgee of those articles. On the question whether the defendants interfered with the plaintiffs' possession of the disputed godown, the conclusion reached by the trial Court is that the goods were continued to be kept inside the godown and though the plaintiffs obtained possession in the execution proceedings and the goods had been given to the custody of Sitaram Roy and, therefore, by no stretch of imagination it can be said that at any point of time defendants interfered with the possession of the plaintiffs of the disputed godown. The application filed for injunction for removing the goods, etc. were precautionary measures taken by the defendants so that the goods were not wasted or damaged and when the injunction was subsequently vacated, they let out the godown to somebody else. Thus the possession of the plaintiffs in the disputed godown was never interfered with by the defendants. The trial Court on these findings came to the conclusion that the suit filed by the plaintiffs could not be maintained at all and it also noticed that the plaintiffs consented to the order of injunction being made absolute preventing the defendants from removing the goods from their godown, it is not open to the plaintiffs to claim damage for use and occupation of the godown by the defendants. Compensation in the form of damage can be allowed if it appears that the injunction was made on insufficient ground and, therefore, the plaintiff's are not entitled to any damage as the defendants obtained an injunction order against them in the miscellaneous cases compensation in the form of damage can also be allowed if the suit fails on the ground that there was no reasonable and probable cause for it. From the judgment Exhibit 10, it cannot be stated that the said suit had been filed without any reasonable and probable cause. On that basis the suit was dismissed with costs.