INDIAN BANK Vs. MOCRO ELECTRONICS

JUDGEMENT

(1.) Indian Bank, Main Branch, Hyderabad, hereinafter referred to as 'Bank' in short, as plaintiff filed O.S.No.335/98 on the file of II Member, Tribunal for Disciplinary Proceedings-cum-VII Additional Chief Judge, City Civil Court, Hyderabad against the respondents/defendants for recovery of Rs.6,82,360/- with future interest @ 23% per annum from the date of suit till the date of realization with costs. It is not in controversy that Rs.50,000/- was paid prior to the filing of the suit by way of cheque which was honoured and subsequent to the filing of the suit an amount of Rs.5,10,100/- had been paid. The trial Court dismissed the suit directing each party to bear their own costs on 21-8-2001 and aggrieved by the same, the Bank had preferred the present C.C.C.A. Submissions of Sri Siva Kumar.

(2.) Sri Siva Kumar, the learned Counsel representing the appellant/plaintiff/Bank had taken this Court through the pleadings of the respective parties and also explained the conduct of the parties. The learned Counsel also commented that the trial Court had committed a serious error in holding that the appellant/plaintiff is not entitled to any interest since there was negligence on their part in wrongly crediting the amounts to the account of the respondents/defendants. The learned Counsel also had pointed out that none had been examined on behalf of the respondents/ defendants and this would definitely go to show that the respondents/defendants had withdrawn the amounts not by any bona fide mistake but the same is a deliberate action and in the light of the non-examination of any one on behalf of the respondents/defendants an adverse inference may have to be drawn under Section 114 of the Indian Evidence Act, 1872. While making elaborate submissions, the learned Counsel had drawn the attention of this Court to Section 72 of the Indian Contract Act 1872 and also placed reliance on certain decisions to substantiate his stand that both in law and also on the ground of equity the appellant/Bank is entitled to recover interest as prayed for and further the learned Counsel contended that even though the power of awarding costs would be discretionary, such discretion may have to be exercised in a judicious manner and on facts when the liability to repay the amount is clear and categorical, awarding no costs definitely is not proper exercise of discretion and hence the Appeal may have to be allowed with costs as prayed for. Submissions of Sri SrinivasChowdhry:

(3.) Sri Srinivas Chowdhry, the learned Counsel representing the respondents/ defendants would contend that absolutely there was no mistake on the part of the respondents/defendants in operating their account and withdrawing the amounts and for the negligence, if any on the part of the Bank, the respondents/defendants cannot be penalized. The learned Counsel also would maintain that inasmuch as the amount already had been paid the trial Court is well justified in recording the same and dismissing the suit. The learned Counsel also made a serious attempt to show that neither under the provisions of the Interest Act nor under the provisions of the Code of Civil Procedure the Bank can claim any interest since none of the ingredients of these provisions are satisfied. The learned Counsel also placed reliance on certain decisions to substantiate his stand in this regard. The Counsel also would maintain that the finding that the negligence was on the part of the Bank is a finding of fact arrived at by the trial court on appreciation of evidence which normally need not be disturbed by the appellate Court and in the light of the conduct of the parties commencing from the beginning, the trial Court is well justified in not awarding any costs inasmuch as the suit itself was dismissed in view of the fact that the total amount withdrawn by the respondents/ defendants had been repaid to the Bank. Pleadings of the parties: