KRISHNA GOPAL KAKANI Vs. BANK OF BARODA

JUDGEMENT

(1.) This appeal arises out of the following facts.

(2.) The appellant, Krishna Gopal Kakani, the proprietor of M/s. Oriental Traders, a concern involved, in the manufacture and import of goods, obtained a letter of authority from the Chief Controller of Imports and Exports, Bombay for the import of raw material for the benefit of a licensee who had been given an import licence. The appellant accordingly placed orders with a foreign supplier for the import of specified goods and for that purpose approached the respondent-Bank for opening Letters of Credit for two consignments. The bank thereupon opened two Letters of Of Credit, one on 24th August 1973, and the other on 21 st September 1973 on which he also deposited 10% of the margin money of Rs. 4560f- and Rs. 48101-. The other formalities having been completed the Letters of Credit were duly negotiated on 21st January 1974 and 19th March 1974. The consignment arrived in India on 13th March, 1974 but despite the requests made by the appellant and his clearing agent, the Bombay Customs refused to release the goods without assigning any reason, though on enquiry from the Joint Chief Controller of Imports and Exports, Bombay, the appellant was told that the controller had no objection to the release. Faced with a notice from the Port Trust threatening heavy demurrage charges and apprehending auction of the. goods by the Trust, the appellant as a joint-holder of the property approached the Bombay High Court for orders. The Bank also, as joint-holder of the import licence by virtue of having paid the value of the import consignment, thereafter filed several Miscellaneous Applications before the Court and in one matter. Miscellaneous Application No. 95011975, the appellant was also arrayed as respondent No.7. In this application, it was pleaded by the Bank that the action of the respondents therein in not releasing the consignments was unjustified and that the appellant-Bank also claimed their tights on the goods as being joint-holders thereof. The Bombay High Court in its order dated 19th November 1975 directed as under :-

(3.) Pursuant to the aforesaid order, the goods were sold by public auction and the sale proceeds of Rs.4,72,714.16 were deposited with the Prothonotary and Senior Master of the Bombay High Court. Miscellaneous Application No. 95011975 was finally disposed of by the Bombay High Court on 3rd October, 1979 with the direction that the Bank would be entitled to the amount deposited but would defray an amount of Rs.8044.18 to the Bombay Port Trust towards demurrage charges and was also liable to pay the customs duty. In the light of the above said directions, the Bank which had also filed a civil suit against the appellant in Indore on 31 st December 1976 for the recovery of Rs. 1,27,282.93 with interest, withdrew the same on 3rd October 1980. In the background of this development, the appellant, by a telegram dated 19th November 1980, requested the Bank to refund the surplus amount along with the margin money lying in deposit with the Prothonotary with interest and ( as per the present suit) the Bank intimated that the money would be paid after receiving orders from the Bombay Head Office. The appellant also wrote a letter to the Bank and also sent a reminder dated 11th November 1980 on which the Bank replied (on 2nd December 1980) that it was still awaiting instructions from the higher authorities. It appears that the appellant also addressed several letters to the higher echelons in the Bank and also met the concerned officials between the years 1980 and 1988 but to no effect and ultimately addressed a letter dated 12th December 1988 threatening the Bank with legal action. It appears that in the interregnum, one R. M. Patwa, who was also a debtor to the Bank approached the appellant that his debts could be adjusted against the amount of the surplus dues of the appellant lying deposited with the Bank. The appellant consented to the said proposal and an application was accordingly moved on 4th March 1986 in the execution proceedings pertaining to R.M. Patwa's case. It appears that at one stage the Bank agreed to the adjustment but subsequently i.e., on 14th September 1990, withdrew its consent. The appellant thereafter filed Writ Petition No. 2840 of 1991 before the Bombay High Court claiming the same relief as in the present suit. The said petition was dismissed on 25th October 1991 on the ground of delay and a Special Leave Petition filed in this Court was also dismissed with the observation that the remedy by way of a Writ Petition was not a proper one in the circumstances. In the meanwhile, in the execution petition in R. M. Patwa's case, the court directed that R. M. Patwa's debt be adjusted against the appellant's dues. This order was maintained in a revision petition before the High Court in its order dated 10th May 1995 after a statement of accounts had been filed on 24th February 1995. The Bank challenged the order aforementioned in a Special Leave Petition before this Court and the appeal was duly allowed on 12th January 1996 and the order impugned was set aside. It is, thereafter, that the present suit has been filed on 8th September, 1997 and on the averments leading to the question of limitation, it was pleaded that the cause of action for filing the suit arose on 24th February 1995, when for the first time the Bank had filed a statement of accounts in the High Court. The appellant Bank filed its written statement on 18th July 1998 pleading, inter-alia, that the submission of the statement of accounts could not be said to be an admission of the claim of the appellant/plaintiff or an acknowledgment of the debt and as such the plea that the cause of action accrued on the 24th February 1995 was erroneous and the suit having been filed after 17 years from 19th November 1980 was clearly and grossly time barred. It was also pointed out on facts that the appellant's money had never been at stake except to the extent of the margin money and he was, in any case, not entitled to the exorbitant amount claimed by him.