SAMRAT INVESTMENT PRIVATE LIMITED Vs. JANAKSONS

JUDGEMENT

(1.) Defendants 1 & 2 have filed this application under Section 151, Civil Procedure Code alleging that the plaintiff filed suit for return of the movable properties as detailed in Annexure-A filed alongwith the plaint or in the alternative for recovery of Rs. 1,19,330.00 against defendants 1 & 2 by an order dated December 14,1981, Shri M.L. Jain, Advocate, was appointed as Receiver to take custody of the movable goods in question. By a subsequent order dated December 16, 1981 goods in question were ordered to remain in the godown of defendant No. 3-Bank but in the custody of the Receiver. Receiver was also authorised to dispose of the foods in question and to deposit the sale proceeds thereof with the Hindustan Commercial Bank Limited. Amount of the sale proceeds was to be invested in fixed deposit and was to be disbursed as per the orders to this Court. It is further alleged that the aforesaid Receiver filed his report alongwith the Bank Draft for Rs. 1,19,330.00 being the amount of sale proceeds of the goods in question. That amount was converted into a fixed deposit in the name of the Registrar of this Court. Plaintiff and defendants 1 & 2 have amicably settled the dispute and accordingly, LA. 3976/92 was filed by them. Plaintiff has no objection to the release of the aforesaid amount of Rs. l,19,330.00 with interest in favour of defendants 1 & 2. It was prayed that the said amount alongwith interest be released in favour of defendants 1 & 2. Defendant No. 3 has contested the application by filing reply. It is alleged that the goods in question were pledged with the Bank by defendants 1 & 2 against the loan taken by them. Without setting the loan amount, money cannot be released in favour of defendants 1 & 2.

(2.) I have heard Mr. H.C. Dhall for defendants 1 &2 and have been taken through the file.

(3.) Suit against defendants 1 & 2 was filed, inter alia, on the allegations that relying on the representation made by Dharmpal Aggarwal, defendant No. 2 that the draft representing the cost of the supplies would behanded oversimultaneously with the delivery, the plaintiff supplied Wasp and Regal P/SWS A/H H/S vide Challan Nos. SM/DLI/SAWS/9, SM/DLI/SAWS/H and SM/DLI/SAWS/13 containing 2360 packets of blades at the defendants godown on December 9,1981. However, aforesaid Dharmpal Aggarwal did not handover the drafts at the time of supplies on the excuse that the drafts were with his father who had just left the premises. Thereafter on December 10,1981, representative of the plaintiff again met said Dharmpal Aggarwal to collect the drafts but he again put off the delivery thereof by making further excuses. On realising that the delivery of the goods in question was taken by defrauding the plaintiff, the plaintiff lodged an FIR with the police. Subsequently, present suit was filed against defendants 1 &2. Bank, who was allowed to be impleaded as defendant No. 3 by the order dated August 6, 1982, in its written statement and reply to the plaintiff's I.A. 3976/92 (under Order XXIII Rule 3 & Section 151, CPC) have alleged that cash pledge limit to the extent of Rs. l,00,000.00 was granted to defendants I &2 on November6,1981. Goods in question were pledged by defendant 1 and 2 in favour of the Bank as security againstadvances on December 9, 19817 Those were stored in a godown situated at 287, PhatakKirori,Ajmeri Gate, Delhi which was under an arrangement with Hindustan Commercial Bank Limited, Chandni Chowk.By the order dated December 15,1981 the goods in question were directed to remain in the said godown of the Bank but in the custody of the Receiver. It is stated that a sum of Rs. 4,24,985.00 was outstanding in the account of defendants I &2 as on May 15,1992. It is, therefore, defendant No. 3 Bank which is entitled to the sale proceeds of the goods in question and not the defendants 1 & 2.