BANK OF INDIA Vs. SITAL CHANDRA DAS

JUDGEMENT

(1.) Second Appeal No.1104 of 1979 arises out of the judgment and decree passed by the learned Additional District Judge, 13th Court, Alipore in Money Appeal No. 92 of 1977 reversing the judgment and decree passed by the learned Subordinate Judge of Alipore in Money Suit No.3 of 1973. The defendant 1, Bank of India, is the appellant in this appeal. The respondents 7, 8 and 9 viz. Brijkishore Bhagat, Sm. Durga Devi Bhagat and Nawal Kishore Bhagat being the defendants 2, 3 and 4 respectively in Money Suit No. 3 of 1973 have been impleaded in the instant appeal. But the said defendants viz. the Bhagats have also preferred an independent appeal before this Court against, the judgment and decree passed in the said Money Appeal No. 92 of 1977 and the arguments advanced by the said Bhagats both as appellants in S.A.T.No.2843 of 1984 and respondents in S.A.No.1104 of 1979 being the same, both the said appeals are being disposed of by the following judgment.

(2.) The short facts and circumstances concerning the above appeals may be stated as follows :- Sital Chandra Das and his brothers instituted Title Suit No.77 of 1959 in the 10th Court of the learned Subordinate Judge at Alipore for recovery of possession of the premises No.103/1B, Raja Dinendra Street, Calcutta after evicting tenants and sub-tenants inter alia on the ground that the tenancy created in favour of the tenants under registered deed of lease had come to an end by efflux of time. In the said suit, M/s. Bhagat Oil Mills was impleaded as defendant 3 as the said Oil Mills became a sub-lessee in respect of the disputed premises. Sri Baijnath Bhagat appeared in the said suit as Proprietor of the said M/s. Bhagat Oil Mills and on his death, his widow Sm. Durga Devi Bhagat and his sons Sri Brijmohan Bhagat and Nawal Kishore Bhagat who are the defendants 2, 3 and 4 in the said Money Suit No.3 of 1973 were substituted in the said Title Suit No.77 of 1959. The said title suit was decreed and in execution of the decree the plaintiffs in the said suit recovered possession of the disputed godown through the bailiff of the Court and 3409 bags of oil seeds found lying in the said godown at the time of delivery of possession were kept under the custody of an employee of the plaintiffs decree-holders namely one Sri Sitaram Roy by the bailiff. The report of the bailiff showing delivery of possession and keeping the said oil seeds in the custody of the said Sri Sitaram Roy appears from Ext.3. The Bank of India, the defendant 1, in the said Money Suit moved an application on 15th Jan. 1982 under O.21, R.101 of the C.P.C. claiming to have been in possession of the said godown and the said goods at the time of execution of the decree alleged that the said Bank had been wrongfully dispossessed. The Bank prayed for recovery of possession of the said godown. On the said application under O.21, R.101, C.P.C. Misc. Case No.1 of 1972 was started. On the very same date viz. on 15th Jan. 1972, the said Bank obtained an ad interim order of injunction restraining the plaintiffs decree-holders from dealing with or disposing of or removing the said oil seeds. On 24th Jan. 1972, M/s. Banshidhar Baijnath also made an application under O.21, Rr.100 and 101 read with S.151 of the C.P.C. claiming to be the lawful sub-tenants in respect of the disputed premises. It was also stated in the said application that the said firm had pledged the said oil seeds and the Bank as pledge had taken possession of the said godown with the stocks therein. The said firm also prayed for being put back into possession of the godown. On the said application Misc. Case No. 3 of 1972 was started. On the application of the said firm, an ad interim order was also passed by the learned Subordinate Judge, 10th Court at Alipore restraining the plaintiffs decree-holders from removing or damaging or dealing with the goods lying in the said godown until the disposal of the injunction application. The ad interim injunctions passed in both the said Misc. Cases were made absolute by consent of the parties. On 3rd June, 1972 the Bank of India filed an application for removing the oil seeds and after completion of inventory on 27th June, 1972 the Bank applied for permission of the Court to remove the said goods. The learned Subordinate Judge granted leave to the Bank to remove the said goods on certain terms. The Bank, however, made an application for stay of operation of the said order dt. 27th June, 1972 and such prayer for stay of the operation of the order was allowed. In Jan. 1973, the plaintiff landlords filed Money Suit No. 3 of 1973 in the 10th Court of the learned Subordinate Judge at Alipore against the Bank of India and also against the said Bhagats who were the heirs of Baijnath Bhagat and also the partners of the said firm M/s. Banshidhaj Bhagat for a decree for damages for wrongful storing the oil seeds and other articles in the said godown of the plaintiffs and preventing the plaintiffs from utilising the godown from 15th Jan. 1972 till the presentation of the plaint. The case of the plaintiffs in the said money suit is inter alia that the plaintiffs obtained a decree for eviction against the said Bhagats and in execution of the decree the plaintiffs had been given possession of the disputed premises including the godown but as considerable time would have been wasted in removing the oil seeds found stored in the said godown, the said goods were kept by the bailiff of the Court in the custody of Sitaram Roy, an employee of the plaintiffs. That the defendant 1 Bank or the defendants 2,3 and 4 viz. the said Bhagats were bound by the decree irrespective of the name of the firm in which they carried on the business and all the said defendants were under an obligation to remove the said goods from the said godown. It was also contended by the plaintiffs that by obtaining order of injunction wrongfully and by not removing the goods in spite of the offers made by the plaintiffs and having kept their goods in the godown of the plaintiffs illegally and without any right, the defendants have made themselves liable for compensation and were bound to compensate the plaintiffs for the loss caused. A petition was also filed for ascertaining the mesne profit payable up-till the date of possession. The said Money Suit was contested both by the defendant I Bank of India and defendants 2, 3 and 4 viz. the Bhagats. It was contended by the defendants, Bhagats, that the oil seeds which had been kept in the custody of Sitaram Roy belonged to the said firm M/s. Banshidhar Baijnath and the said defendants denied the contention of the plaintiff that M/s. Bhanshidhar Baijnath was the compendious name for the defendant 1 Bank and the defendants 2, 3 and 4. The said defendants 2 to 4 also denied that they had ever interfered with the plaintiffs' possession in respect of the godown and it was also contended that the said firm was not bound by the decree. The defendants denied the contention that the order of injunction had ever been obtained by the said defendants wrongfully. The said defendants also contended that the interim order passed in the said Misc. case was made absolute by consent of the parties and the said defendants admittedly not being in possession of the said godown were not liable for damages.

(3.) The defendant 1 also contested the Money Suit by filing written statement and it was inter alia contended by the said defendant 1 that the Money Suit was instituted when the order of injunction passed in the execution proceeding had been continuing and as such during the continuance of the said injunction order, the plaintiffs had no cause of action to institute the said Money Suit for damages. The defendant 1 also contended that there was no averment in the plaint that the order of injunction was applied for on insufficient grounds and in any event the order of injunction in respect of which the claim for damages was made was not passed in a suit but in an independent application of the defendant 1 under O.21, R.100 of the C.P.C. The defendant 1 further contended that the Court had no power outside S.95 to award damages and in the facts and circumstances of the case, the conditions of S.95 of the C.P.C. having been fully satisfied the claim for damages made by the plaintiffs in any event was not maintainable. The defendant 1 also contended that the plaintiffs having consented to the order of injunction were estopped from claiming any damages arising out of the order of injunction. The defendant 1 Bank also denied any knowledge of the execution of the said decree and it was contended by the defendant Bank that M/s Banshidhar Baijnath, the partnership firm was a constituent of the defendant 1 Bank and the said partnership firm had a current account with the defendant 1 Bank with cash credit facilities and the firm had pledged the goods from time to time lying in the said godown and obtained loan of several lacks of rupees. The defendant 1 as pledgee had taken possession of the godown together with the goods lying therein and on 14th Jan. 1972 the oil seeds in question were kept in the said godown under lock and key put in by the defendant 1 but some persons having removed the said padlocks and also removing the name plate of the defendant 1 tried to interfere with possession and also put their own padlocks for which the defendant No. 1 had to lodge a diary in the local police station and the defendant 1 thereafter filed an application under O.21, Rr.100 and 101 of the C.P.C. to enforce the Bank's legal rights and for restoration of possession. In the aforesaid circumstances, the Bank denied any liability whatsoever to pay damages as claimed by the plaintiffs.