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OS.No.41/2012, Dt.24.03.2023
S.C.J., Court, Parchur.
IN THE COURT OF SENIOR CIVIL JUDGE, PARCHUR.
Present: Smt M.KUMUDINI,
Senior Civil Judge, Parchur.
Friday, this the Twenty Fourth [24th] day of March, 2023
Original Suit No.41 of 2012
Between:
Thamma Ammi Reddy S/o.Narayana Reddy, aged about 42 years Hindu, cultivation, r/o.Jagarlamudi Village Parchur mandal, Parchur D.M.C. … Plaintif -And- 1.State Bank of India, Parchur, represented by its Branch Manager, having its Branch Office at Parchur 2.Sri Mahalaxmi Cold Storage, Represented by its Manager / Managing Director, Having its office at Throvagunta, N.H.5 Throvagunta Village, Ongole Mandal and D.M.C. … Defendants
This suit came before me for final hearing on 21-02-2023 in the presence of Sri Chaganti Subba Rao, Advocate for plaintif, Sri R. Satyanarayana, Advocate for the first defendant and of Sri Y. Venkateswara Rao, Advocate for the second defendant and upon perusing the plaint, written statements, Rejoinder to the plaint, amended plaint, additional written statements and other connected material papers on record and having stood over for consideration till this day this Court delivered the following:
//J U D G M E N T//
The plaintif filed the above suit against the defendants for declaration that the first defendant claim against the plaintif in respect of the produce marketing loan account No.11321069014 is time barred and that the first defendant has no right to sell the scheduled goods for the recovery of the said loan amount; consequently for granting permanent injunction to restrain the first defendant to sell the scheduled goods for the recovery of amount under the said loan account No.11321069014; for directing the first defendant to hand over the pledged storage bond, dated 29-05-2006 issued by the second defendant in favour of the plaintif to the plaintif; for an amount of Rs.5,37,000/- (Rupees five lakhs thirty seven thousand only) 2
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towards damages; for future interest from 17.08.2013 till the date of realization and for costs of the suit.
02.The brief averments of the plaint are as follows:
It is averred in the plaint that the plaintif is the owner of the schedule property (herein after referred to as ‘schedule goods’). The plaintif is an agriculturist and he is having lands in and around
Jagarlamudi village and he used to do cultivation. In the year 2005-06 he cultivated Bengal Gram crop in his lands and as the market price for
Bengal Gram was less, he kept his Bengal gram produce in the cold storage of second defendant on 16-05-2006. The second defendant issued storage bond as receipt of the same. As the plaintif is in need of money he pledged the storage bond issued by the second defendant with the first defendant bank and obtained a loan of Rs.2,33,000/- on 30-05-2006 vide produce marketing loan account No.11321069014 against the plaintif’s stock of schedule goods. Later the plaintif paid Rs.30,000/- to the credit of the said loan by November, 2006. At the time of granting of loan, the first defendant bank officials obtained the signatures of the plaintif on some blank and printed papers without appraising the contents of the same. It is the duty and responsibility of the first defendant bank to inspect the stock periodically and to verify the quality and quantity of the schedule goods in the second defendant’s cold storage. It is the duty of the second defendant to keep the schedule goods intact in a good condition as long as the same are kept in the storage. Both the defendants are liable to the plaintif for any damage in the quality or quantity of the goods.
ii) It is further averred that the schedule goods were completely damaged because of the improper maintenance of the cold storage by the second defendant. The entire stock in the chamber of cold storage was completely damaged. On enquiry the plaintif came to know that the second defendant in connivance with the first defendant did business with the stored goods of several ryths including the scheduled goods and it is 3
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S.C.J., Court, Parchur.
the duty of the first defendant to take necessary action against the second defendant for improper maintenance of storage goods which caused the entire stock damaged. That by allowing the second defendant to do business with stored stock all these years, now the first defendant got issued legal notice, dated 31-03-2012 to auction the schedule goods with false allegations. The allegations in the said notice that the plaintif executed revival letter, dated 26-05-2009 in favour of the first defendant bank is false. It is fabricated to save the limitation. The claim of the first defendant under the above account is time barred and the first defendant is not entitled to claim anything under the said loan account and he has no right to sell the schedule goods for recovery of the amount under the above marketing loan account. The interest claimed is excessive and usurious. The plaintif got issued reply notice asking for the documents but no copy of the document has been given to the plaintif. Now, there are no goods stocked in the second defendant cold storage, which were originally stocked by the plaintif. If the first defendant goes for auction the second defendant would set up other damaged stock and it will cause heavy loss to the plaintif. If the auction is not stopped no stock would be available for expert inspection to inspect the quality and quantity of the stock. The first defendant issued notice, dated 04-07-2012 to the plaintif claiming an amount of Rs.5,66,131/-and hence the suit.
03.The first defendant bank filed written statement denying the plaint and the brief averments of its written statement are as follows: The plaintif stored the schedule goods in the cold storage of the second defendant on 16-05-2006. The second defendant issued storage bond
No.676, dated 29-05-2006 to the plaintif for the said produce stored in the cold storage. The plaintif pledged the said produce with the first defendant bank by deposit of storage bond and obtained a loan of
Rs.2,33,000/- on 30-05-2006. The plaintif, the defendants 1 and 2 executed tripartite agreement for the said loan fixing the terms and 4
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S.C.J., Court, Parchur.
conditions. The second defendant agreed to keep up the stock in the cold storage in safe custody under the said receipt and the second defendant has to deliver the stock to the first defendant bank whenever demanded in order to sell it in auction for recovery of the amount, if the plaintif fails to repay the loan. The plaintif also executed other necessary documents in favour of first defendant bank and also agreed to repay the loan amount with interest at 9% per annum with half yearly rests. The plaintif also agreed to repay the loan on or before 30-11-2006. The first defendant appraised the contents of the documents to the plaintif and after satisfying the terms therein, the plaintif executed the loan documents in favour of the first defendant bank. Several times the Officials of the first defendant bank approached and requested the plaintif to pay the dues, but he postponed the same and dragged the matter without payment.
Thereafter, the plaintif executed a revival letter on 26-05-2009 in favour of the first defendant bank and acknowledged the debt amount and made the debt alive. The first defendant bank issued notice on 31-03-2012 to the plaintif demanding to pay the dues, a copy of the said notice was also issued to the second defendant. Thereafter, the plaintif got issued reply notice, dated 12-04-2012 with false grounds and he came forward to the bank on 27-04-2012 and requested the bank to grant two months time to pay the dues. Since the documents are getting time barred within short time, at the request of the officials of the bank, the plaintif executed revival letter on 27-04-2012 in favour of the bank and acknowledged the debt and made the debt alive. Thereafter the plaintif is avoiding to pay the dues and having no other go, the first defendant bank proposed to auction the goods on 12-07-2012 and issued auction notice, dated 04-07- 2012 to the plaintif and a copy of the auction notice was also served to the second defendant. The plaintif filed W.P.No.20781/2012 on the file of
Hon’ble High Court A.P., at Hyderabad against the defendants herein for
writ of mandamus to set aside the auction notice, dated 04-07-2012 and 5
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S.C.J., Court, Parchur.
also seeking to stay the auction proceedings and the said writ was dismissed. When the first defendant bank is in the way to sell the goods in the public auction, the plaintif filed the present suit with false grounds and by suppressing the filing of the above writ petition and its dismissal.
The plaintif suppressed execution of another revival letter on 27-04-2012 in favour of the first defendant bank. The bank inspected the stocks periodically and the schedule stock are found intact. The second defendant is the custodian of the stock. It is also the bounden duty of the plaintif to inspect the stock. He was dragging on the payments of the bank dues and attempting to fashion the liability on the defendants for his latches and fault. The debt due to the first defendant is in time. After selling away the pledged stock and adjusting the sale proceedings to the loan account, the first defendant bank is at liberty to recover the balance dues if any in the loan account of the plaintif. The framing of the suit for declaration the debt due to the first defendant is time barred which is negative relief and the same is not maintainable under Law. The first defendant bank is a nationalized bank and the officials of the bank have been acting as per the rules and norms of the bank and they have no enmity against the plaintif or other customers. As per the documents executed by the plaintif, the first defendant bank is entitled to recover the dues and the nature of the suit restraining the lawful body from recovering its dues is not maintainable under law. Hence, prayed the Court to dismiss the suit with costs.
04.The second defendant filed written statement resisting the averments of the plaint and submitted that the suit as framed is not maintainable since the plaintif came to court with unclean hands claiming equitable relief of injunction when the bank officials are proceeding to recover the debts according law. The second defendant cold storage has started functioning on 01-04-2006 by obtaining all the permissions from the concerned authorities and continuing the said unit till now by obtaining 6
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S.C.J., Court, Parchur.
renewals from the concerned departments without any lapses or deviations. It is further submitted that as per the terms and conditions of the bond, the season means from 31st March to 31st December and if the agricultural ryot continues to keep his produce in the cold storage beyond that period this defendant is not liable for its quality and shrinkage of weight. The second defendant never indulged any type of business with the stocks of its customers at any point of time so far, and even now the stock belonging to the plaintif which was kept in the cold storage is still available. Several times the second defendant demanded the plaintif to take back the stock after paying the dues to the bank for which he used to say he will oblize the same. Hence, sought the court to dismiss the suit with costs.
05.After filing of the written statements by the defendants 1 and 2, the plaintif filed rejoinder denying the averments in the written statements and stated that the alleged revival letter, dated 27-04-2012 was fabricated to save the limitation. The bank officials never approached the plaintif demanding to pay the due amount. It is further submitted that the debt of the bank is not enforceable under law. The defendants never issued any notice to the plaintif asking him to take away the schedule goods and as the condition of the same is deteriorated and the first defendant bank granted the loan only after verifying the samples. The first defendant is not entitled for payment of the debt or the schedule goods if they are not in position to redeliver the goods to the plaintif with the same quality and quantity certified at the time of storage and prayed the court to decree the suit.
06.During pendency of the suit, the plaintif amended the plaint and also sought the relief of damages from the defendants. The brief averments of the amended relief in the plaint are as follows:- It is submitted that during pendency of the suit, the injunction order was vacated and the first defendant bank proceeded with the auction of the 7
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S.C.J., Court, Parchur.
available stock of the plaintif in the second defendant cold storage illegally. Later, the first defendant bank filed a suit in O.S.No.8/2014 on the file of this Court against the plaintif and the second defendant herein for recovery of balance amount of Rs.4,30,481-25 paise as if the plaintif herein is also liable to pay the same. As per the contents of the plaint in
O.S.No.8/2014, the second defendant produced for auction Bengal gram
bold variety – 118 bags (50 kg each) and Bengal Gram cog variety – 19 bags (50 kg each), which were damaged for about 60% and J.J.11 variety of 36 bags (50 kg each) were not produced for auction by the second defendant herein. If the second defendant produced undamaged Bengal gram intact it should have fetched about Rs.7,000/- per quintal as on the date of auction on 17-08-2013. So the plaintif got loss of about
Rs.3,54,000/-, Rs.57,000/- and Rs.1,26,000/-, in total about Rs.5,37,000/- due to the negligence and improper maintenance of second defendant and not taking proper action in time by bank in collusion with the second defendant. It is the duty of the bank to check the stock stored in the second defendant cold storage periodically. Both the defendants are jointly and severally liable for the damages caused to the plaintif and sought the court to decree the suit.
07.After filing of the amended plaint, the first defendant filed additional written statement stating that the bank conducted the auction of the produce as per norms and rules and realized the part of the amount. For recovery of balance amount, the bank has filed the suit in O.S.No.8/2014 on the file of this Court and it is pending. This suit was filed in the year 2012 for declaration and permanent injunction. The plaintif is seeking the relief of damages by way of amendment to the plaint in 2016. The amendment portion of the plaint seeking damages is neither true nor enforceable under law. The alleged relief of damages claimed by the plaintif is also barred by limitation. To avoid payment of the balance 8
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S.C.J., Court, Parchur.
amount due to the bank, the plaintif invented the amended plaint with false grounds. Hence, sought the court to dismiss the suit with costs.
08.The brief averments of the additional written statement of the second defendant are as follows:- It is submitted that the present suit after amendment without any justified cause, keeping all the lapses on the part of plaintif continuing his agriculture produce i.e., Bengal gram in the cold storage maintained by the second defendant, is not maintainable. It is the duty of the plaintif to store his agricultural yield in the cold storage for a reasonable time, but not more than one year and it is quite natural that agricultural produce, which was kept for a longer time in any cold storage the quality and its weightage shall be depreciated naturally. In the present case either the bank nor the second defendant committed any type of lapses or wrongs intentionally at any point of time, so the alleged loss sustained by the plaintif is meaningless and the second defendant is not at all responsible and liable for the said amount. Hence prayed the court to dismiss the suit with costs.
09.Basing on the pleadings, my learned predecessor in office settled the following issues for trial:
1. Whether the plaintiff is entitled for declaration as claimed?
2. Whether the plaintiff is entitled for Permanent Injunction as prayed for?
3. Whether the plaintiff is entitled direction as sought for?
4. To what relief?
After amendment to the plaint, and on perusing the amended plaint and
additional written statements, the following ADDITIONAL ISSUES are
settled on 22-01-2020:-
1. Whether the Plaintiff is entitled to recover an amount of
Rs.5,37,000/- towards damages and future interest?
2. Whether the relief of damages claimed by the plaintiff is barred by limitation?
3. To what relief?
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S.C.J., Court, Parchur.
10.At the event of trial, the plaintif is examined as P.W.1 and Exs.A1 to
Ex.A7 are marked on behalf of the plaintif. The Branch Manager of the first defendant bank is examined as D.W.1. One Pappu Krishna Prasad is examined as D.W.2 on behalf of the first defendant bank and Exs.B1 to
Ex.B19 are marked on behalf of the first defendant bank.
The second defendant is examined as D.W.3 and he also examined one Arla Anjaneyulu, Bommireddy Lakshmi Narayana and Manduva
Seetharamanjaneyulu as D.Ws.4 to 6. No documents are marked on behalf of the second defendant.
11.The learned counsel for the plaintif argued that the second defendant has to inform about the natural damage of the goods to the plaintif and the first defendant bank by way of notice, but he did not resort to issue any notice and the first defendant bank has no right to sell the goods. It is also argued that the first defendant bank did not inspect the schedule goods periodically and if cold storage maintains sufficient temperature no damage would be caused to the schedule goods. He also argued that the schedule goods are not perishable commodities and it has long life and due to the negligence of the second defendant, the loss was caused to the plaintif, and hence, the second defendant is liable to pay the damages to the plaintif and sought to decree the suit.
12.The learned counsel for the first defendant argued that by the date of filing of the suit, the plaintif got knowledge that there was a damage to the schedule goods, but he kept quiet without seeking the said relief till the notice was issued by the first defendant bank and the plaintif has not taken any steps. He also submitted that the plaintif did not approach the court with clean hands and the first defendant bank could not sell the schedule goods in auction due to the obstruction of the plaintif. He also raised that the plaintif did not file any document to prove the market price is Rs.7,000/- on the particular date. He also contended that the limitation has to be calculated from the date of knowledge and the plaintif 10
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did not approach the court within the period of limitation and sought for dismissal of the suit.
13.On the other hand, the learned counsel for the second defendant argued that after lapse of six years the plaintif filed the suit without paying rent to the second defendant cold storage and without discharging the debt due to the first defendant bank. He also submitted that there are no complaints against the second defendant cold storage and the plaintif filed the suit by suppressing about the writ filed by him, before filing of the suit. He also submitted that the plaintif is not entitled for any reliefs keeping all the laches on his part and sought the Court to dismiss the suit with costs.
14. Heard both sides. Perused the material on record.
Additional Issues 1 and 2: Additional Issues 1 and 2:
It is not in dispute that the Plaintif stored the schedule goods in theIt is not in dispute that the Plaintif stored the schedule goods in the cold storage of the 2ndcold storage of the 2nd defendant on 16-05-2006, on that the 2 defendant on 16-05-2006, on that the 2ndnd defendant defendant cold storage issued storage bond dated 29-05-2006 to the Plaintif videcold storage issued storage bond dated 29-05-2006 to the Plaintif vide
Ex.A.1/B.11. The Plaintif pledged the said produce with the 1stEx.A.1/B.11. The Plaintif pledged the said produce with the 1st defendant defendant
Bank by depositing the said storage bond and obtained loan ofBank by depositing the said storage bond and obtained loan of
Rs.2,33,000/- on 30-05-2006. The Plaintif, 2ndRs.2,33,000/- on 30-05-2006. The Plaintif, 2nd defendant along with the 1 defendant along with the 1stst defendant Bank executed the tripartite agreement for the said loan fixingdefendant Bank executed the tripartite agreement for the said loan fixing the terms and conditions. Ex.B.8 is the certified copy of the tripartitethe terms and conditions. Ex.B.8 is the certified copy of the tripartite agreement dated 30-05-2006. It is also not in dispute that the 2ndagreement dated 30-05-2006. It is also not in dispute that the 2nd defendant agreed to keep up the stock in the cold storage in the safedefendant agreed to keep up the stock in the cold storage in the safe custody and it has to deliver the stock to the 1stcustody and it has to deliver the stock to the 1st defendant Bank whenever defendant Bank whenever demanded, in order to sell it for recovery of its debt, in case the plaintifdemanded, in order to sell it for recovery of its debt, in case the plaintif failed to repay the loan. The Plaintif also executed Ex.B.9-Demandfailed to repay the loan. The Plaintif also executed Ex.B.9-Demand
Promissory note and Ex.B.10-Demand Promissory note, delivery letterPromissory note and Ex.B.10-Demand Promissory note, delivery letter
dated 30-05-2006 and other relevant documents in favour of the 1stdated 30-05-2006 and other relevant documents in favour of the 1st
defendant agreeing to repay the amount of Rs.2,33,000/- with interest @defendant agreeing to repay the amount of Rs.2,33,000/- with interest @ 9% p.a., with half yearly rest. The Plaintif agreed to repay the loan on or9% p.a., with half yearly rest. The Plaintif agreed to repay the loan on or 11
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S.C.J., Court, Parchur.
before 30-11-2006 and if he failed to repay the same within stipulatedbefore 30-11-2006 and if he failed to repay the same within stipulated
time, he has to pay the penal interest @ 9% p.a., in addition to the interesttime, he has to pay the penal interest @ 9% p.a., in addition to the interest @ 9% p.a., with half yearly rest. Ex.B.6 is the certified copy of application@ 9% p.a., with half yearly rest. Ex.B.6 is the certified copy of application of loan against the security of the warehouse receipt dated 30.05.2006.of loan against the security of the warehouse receipt dated 30.05.2006.
Ex.B.7 is the certified copy of sanction letter dated 30-05-2006. Later, theEx.B.7 is the certified copy of sanction letter dated 30-05-2006. Later, the
Plaintif paid Rs.30,000/- to the credit of the said loan by November, 2006,Plaintif paid Rs.30,000/- to the credit of the said loan by November, 2006, subsequently, the plaintif failed to pay the loan amount with interest. subsequently, the plaintif failed to pay the loan amount with interest.
(ii). According to the Plaintif, who is examined as P.W.1, the 1st(ii). According to the Plaintif, who is examined as P.W.1, the 1st defendant bank officials obtained his signatures on some blank anddefendant bank officials obtained his signatures on some blank and printed papers at the time of granting loan without appraising the contentsprinted papers at the time of granting loan without appraising the contents of the same and the 1stof the same and the 1st defendant bank allowed the 2 defendant bank allowed the 2ndnd defendant to do defendant to do business with stored stock and finally got issued legal notice dated 31-03-business with stored stock and finally got issued legal notice dated 31-03- 2012 to auction the schedule goods that the plaintif executed revival2012 to auction the schedule goods that the plaintif executed revival letter dated 26-05-2009 in favour of the 1stletter dated 26-05-2009 in favour of the 1st defendant bank and it is defendant bank and it is fabricated to save the limitation. fabricated to save the limitation.
15..15It is the case of the 1stIt is the case of the 1st defendant Bank that the plaintif executed a defendant Bank that the plaintif executed a revival letter dated 26-05-2009 vide Ex.B.12 in its favour andrevival letter dated 26-05-2009 vide Ex.B.12 in its favour and acknowledged the debt and make the debt alive. It also issued noticeacknowledged the debt and make the debt alive. It also issued notice
dated 31-03-2012 under Ex.B.13 calling upon the plaintif to pay the duedated 31-03-2012 under Ex.B.13 calling upon the plaintif to pay the due
amount. The said notice was also given to the 2ndamount. The said notice was also given to the 2nd defendant and thereafter defendant and thereafter the Plaintif issued reply notice dated 12-04-2012 vide Ex.B.14 with falsethe Plaintif issued reply notice dated 12-04-2012 vide Ex.B.14 with false grounds and under the threat of auction of the stock, the plaintif comegrounds and under the threat of auction of the stock, the plaintif come forward on 27-04-2012 and requested the bank to grant two months timeforward on 27-04-2012 and requested the bank to grant two months time to pay the dues and since the documents are getting time barred withinto pay the dues and since the documents are getting time barred within short time, at the request of the officials of the 1stshort time, at the request of the officials of the 1st defendant bank, the defendant bank, the plaintif executed revival letter dated 27-04-2012 under Ex.B.15 in favourplaintif executed revival letter dated 27-04-2012 under Ex.B.15 in favour of the Bank and acknowledged the debt and make the debt alive,of the Bank and acknowledged the debt and make the debt alive, thereafter the plaintif avoided to pay the dues and the bank awaited tillthereafter the plaintif avoided to pay the dues and the bank awaited till
June, 2012 and having no other go, the 1stJune, 2012 and having no other go, the 1st defendant bank proposed to sell defendant bank proposed to sell 12
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the goods in auction on 12-07-2012 and issued auction notice datedthe goods in auction on 12-07-2012 and issued auction notice dated 04-07-2012 vide Ex.A.5 to the plaintif and copy was also served to the 2nd04-07-2012 vide Ex.A.5 to the plaintif and copy was also served to the 2nd defendant. As on 04-07-2012, the plaintif became due of Rs.5,66,131/- todefendant. As on 04-07-2012, the plaintif became due of Rs.5,66,131/- to the 1stthe 1st defendant Bank. defendant Bank.
16..16It is necessary to mention here that after receiving auction noticeIt is necessary to mention here that after receiving auction notice from the 1stfrom the 1st defendant bank, the Plaintif filed W.P.No.20781 of 2012 on the defendant bank, the Plaintif filed W.P.No.20781 of 2012 on the file of Hon’ble High Court of Andhra Pradesh, Hyderabad against thefile of Hon’ble High Court of Andhra Pradesh, Hyderabad against the defendants herein for writ of mandamus to set aside auction notice dateddefendants herein for writ of mandamus to set aside auction notice dated 04-07-2012 and also to stay of auction proceedings. The Hon’ble High04-07-2012 and also to stay of auction proceedings. The Hon’ble High court dismissed the said Writ Petition, and miscellaneous petitions on 11-court dismissed the said Writ Petition, and miscellaneous petitions on 11- 07-2012 vide Ex.B.16 order dated 11-07-2012. 07-2012 vide Ex.B.16 order dated 11-07-2012.
(ii). It is pertinent to mention here that the plaintif no where(ii). It is pertinent to mention here that the plaintif no where whispered about filing of the above Writ Petition before the Hon’ble Highwhispered about filing of the above Writ Petition before the Hon’ble High
Court of Andhra Pradesh at Hyderabad and filed the present suit seekingCourt of Andhra Pradesh at Hyderabad and filed the present suit seeking the relief of declaration that the 1stthe relief of declaration that the 1st defendant claim against the plaintif in defendant claim against the plaintif in respect of marketing loan account No.11321069014, is time barred andrespect of marketing loan account No.11321069014, is time barred and the 1stthe 1st defendant bank has no right to sell the schedule goods for the defendant bank has no right to sell the schedule goods for the recovery of the said loan amount and consequently, to grant permanentrecovery of the said loan amount and consequently, to grant permanent injunction restraining the 1stinjunction restraining the 1st defendant to sell the schedule goods for defendant to sell the schedule goods for recovery of the amount under above loan account and to direct the 1strecovery of the amount under above loan account and to direct the 1st defendant to hand over the pledged storage bond dated 29-05-2006defendant to hand over the pledged storage bond dated 29-05-2006 issued by the 2ndissued by the 2nd defendant in favour of the plaintif to the plaintif. defendant in favour of the plaintif to the plaintif.
(iii). During pendency of the suit, the Injunction order which was(iii). During pendency of the suit, the Injunction order which was granted in the suit, was vacated and on that the 1stgranted in the suit, was vacated and on that the 1st defendant Bank defendant Bank proceeded to auction the available stock of the plaintif in the 2ndproceeded to auction the available stock of the plaintif in the 2nd defendant cold storage and the 1stdefendant cold storage and the 1st defendant bank filed a suit in O.S.No.08 defendant bank filed a suit in O.S.No.08 of 2014 on the file of this Court against the Plaintif and the 2ndof 2014 on the file of this Court against the Plaintif and the 2nd defendant defendant for recovery of balance amount of Rs.4,30,481-25 ps., on that the plaintiffor recovery of balance amount of Rs.4,30,481-25 ps., on that the plaintif filed the petition to amend the relief that the plaintif sustained loss to afiled the petition to amend the relief that the plaintif sustained loss to a 13
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tune of Rs.5,37,000/- due to the negligence on the part of the 2ndtune of Rs.5,37,000/- due to the negligence on the part of the 2nd defendant cold storage and not taking appropriate action in time by the 1stdefendant cold storage and not taking appropriate action in time by the 1st defendant Bank in collusion with the 2nddefendant Bank in collusion with the 2nd defendant and claimed damages defendant and claimed damages and future interest from both the defendants herein.and future interest from both the defendants herein.
(iv). According to the 1st(iv). According to the 1st defendant Bank, the relief of damages defendant Bank, the relief of damages claimed by the plaintif is barred by limitation. The 2ndclaimed by the plaintif is barred by limitation. The 2nd defendant cold defendant cold storage is contending that the plaintif keeping all the lapses on his partstorage is contending that the plaintif keeping all the lapses on his part continued his agricultural produce in the cold storage and he is supposedcontinued his agricultural produce in the cold storage and he is supposed to store the schedule stock for reasonable time, but not more than oneto store the schedule stock for reasonable time, but not more than one year and it is quite natural that the agricultural produce which was kept foryear and it is quite natural that the agricultural produce which was kept for longer time in any cold storage, the quality and quantity shall belonger time in any cold storage, the quality and quantity shall be depreciated naturally and it is also a universal fact and acceptable by thedepreciated naturally and it is also a universal fact and acceptable by the agricultural graduates and it is meaningless to say that the plaintifagricultural graduates and it is meaningless to say that the plaintif sustained loss due to negligence of the 2ndsustained loss due to negligence of the 2nd defendant. defendant.
17..17As per the averments of the plaint, in the paragraph No.’g’ and ‘h’ itAs per the averments of the plaint, in the paragraph No.’g’ and ‘h’ it is stated as “the schedule goods were completely damaged because ofis stated as “the schedule goods were completely damaged because of improper maintenance of the cold storage by the 2ndimproper maintenance of the cold storage by the 2nd defendant. The entire defendant. The entire stock [scheduled goods] in the chamber of the cold storage wasstock [scheduled goods] in the chamber of the cold storage was completely damaged. On enquiry, the plaintif came to know that the 2ndcompletely damaged. On enquiry, the plaintif came to know that the 2nd defendant in connivance with the first defendant did business with thedefendant in connivance with the first defendant did business with the stored goods of several ryths including the schedule goods. The 1ststored goods of several ryths including the schedule goods. The 1st defendant allowed him to do business with stock of the ryths. It is the dutydefendant allowed him to do business with stock of the ryths. It is the duty of the 1stof the 1st defendant to take necessary action against the 2 defendant to take necessary action against the 2ndnd defendant for defendant for improper maintenance of storage which caused entire stock damaged.”improper maintenance of storage which caused entire stock damaged.”
(ii) The plaint was presented on 13-07-2012. By the date of(ii) The plaint was presented on 13-07-2012. By the date of presentation of the plaint itself, the plaintif is aware that the schedulepresentation of the plaint itself, the plaintif is aware that the schedule stock, which was kept in the 2ndstock, which was kept in the 2nd defendant cold storage was damaged, but defendant cold storage was damaged, but he did not sought the relief of claiming damages at the time of filing of thehe did not sought the relief of claiming damages at the time of filing of the suit.suit.
14
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(iii).Further, the Plaintif who is examined as P.W.1 in his cross-(iii).Further, the Plaintif who is examined as P.W.1 in his cross- examination by the 2ndexamination by the 2nd defendant, categorically stated that till the date of defendant, categorically stated that till the date of auction notice, he has not repaid the debt due to the 1stauction notice, he has not repaid the debt due to the 1st defendant bank. defendant bank.
He further stated after one or two years from the date of borrowal, heHe further stated after one or two years from the date of borrowal, he came to know that his stock was damaged, he personally visited the coldcame to know that his stock was damaged, he personally visited the cold storage and found his stock was damaged. He further stated that he hasstorage and found his stock was damaged. He further stated that he has not preferred any written complaint either to the 1stnot preferred any written complaint either to the 1st defendant bank or 2 defendant bank or 2ndnd defendant intimating about the damage. In the cross-examination by thedefendant intimating about the damage. In the cross-examination by the 11stst defendant bank, P.W.1 clearly stated that in the year 2008, he came to defendant bank, P.W.1 clearly stated that in the year 2008, he came to know that the stock which was kept in the 2ndknow that the stock which was kept in the 2nd defendant cold storage was defendant cold storage was damaged and he inspected his stock in the month of March, 2008. He alsodamaged and he inspected his stock in the month of March, 2008. He also stated that he questioned the 2ndstated that he questioned the 2nd defendant about the damage to his stock defendant about the damage to his stock and he informed about the damage to the Field Officer. He admitted thatand he informed about the damage to the Field Officer. He admitted that he has not informed in written either to the 1sthe has not informed in written either to the 1st defendant or the 2 defendant or the 2ndnd defendant that the stock was damaged. He also admitted that since 2008,defendant that the stock was damaged. He also admitted that since 2008, he has not filed any suit claiming damages.he has not filed any suit claiming damages.
18. When two parties undergo any signed contract, both agree to perform18. When two parties undergo any signed contract, both agree to perform certain obligations. However, if any of the parties break the promisecertain obligations. However, if any of the parties break the promise bringing loss to the other party, the latter has complete right to file abringing loss to the other party, the latter has complete right to file a damage case against the former. The Indian Contract Act, 1872 has laiddamage case against the former. The Indian Contract Act, 1872 has laid down specific clauses under the suit for damages, giving full right to filedown specific clauses under the suit for damages, giving full right to file the Lawsuit against the party for breaking the promise. There are 3the Lawsuit against the party for breaking the promise. There are 3 essential elements of damages pointed out by the Act-essential elements of damages pointed out by the Act-
1) Detriment the wrong doings by another.1) Detriment the wrong doings by another.
2) Compensation awarded to the loss bearded through legal remedies.2) Compensation awarded to the loss bearded through legal remedies.
3) Quantum being determined by dual components for the tangible loss3) Quantum being determined by dual components for the tangible loss sufered.sufered.
Learned counsel for the Plaintif argued that Article 70 of LimitationLearned counsel for the Plaintif argued that Article 70 of Limitation
Act., would be applicable to the present case and he relied on the decisionAct., would be applicable to the present case and he relied on the decision 15
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reported in Seth Ramdayal Jat Vs Laxmi Prasad [decided on 15-04-reported in Seth Ramdayal Jat Vs Laxmi Prasad [decided on 15-04- 2009] of Hon’ble Supreme Court of India in Civil Appeal No.2543 2009] of Hon’ble Supreme Court of India in Civil Appeal No.2543 of 2009. As rightly relied on the decision i.e., of 2009. As rightly relied on the decision i.e., State of Gujarat State of Gujarat
Vs.M/s.Kothari and Associates [decided on 16-10-2015] in Civil Vs.M/s.Kothari and Associates [decided on 16-10-2015] in Civil
Appeal No.1770 of 2005 of Hon’ble Supreme Court of India, by theAppeal No.1770 of 2005 of Hon’ble Supreme Court of India, by the learned counsel for the 1stlearned counsel for the 1st Defendant bank that Article 55 or Article 113 of Defendant bank that Article 55 or Article 113 of the Limitation Act, 1962 are applicable to the present case. .the Limitation Act, 1962 are applicable to the present case
The Limitation period for a suit for damages in a court of lawThe Limitation period for a suit for damages in a court of law following a breach of contract, whether express or implicit is 3 years whenfollowing a breach of contract, whether express or implicit is 3 years when not specified explicitly. In the case of a complaint against damages, thenot specified explicitly. In the case of a complaint against damages, the period of limitation begins when the real contract is violated. Article 55 orperiod of limitation begins when the real contract is violated. Article 55 or
Article 113 of the Limitation Act,1962 are appropriate to the circumstancesArticle 113 of the Limitation Act,1962 are appropriate to the circumstances of the case. Article 70 of the Limitation Act., 1962 is applicable to recoverof the case. Article 70 of the Limitation Act., 1962 is applicable to recover movable within 3 years from the date of refusal after property deposited ormovable within 3 years from the date of refusal after property deposited or demand and the above decision is in the case of Pawnee and Pawnor, anddemand and the above decision is in the case of Pawnee and Pawnor, and the appellant did not respond to the notice issued by the respondentthe appellant did not respond to the notice issued by the respondent asking him to return the pledged jewelry. In the instant case, the plaintifasking him to return the pledged jewelry. In the instant case, the plaintif did not issue any legal notice either of the defendants, even though hedid not issue any legal notice either of the defendants, even though he was aware of the damage to the stock. If the plaintif paid the debt to thewas aware of the damage to the stock. If the plaintif paid the debt to the 11stst defendant Bank, and also paid the rent to the 2 defendant Bank, and also paid the rent to the 2ndnd defendant and the defendant and the scheduled stock was not returned by the 2ndscheduled stock was not returned by the 2nd defendant, then, the above defendant, then, the above said decision is applicable. In the instant case, the Plaintif neither clearsaid decision is applicable. In the instant case, the Plaintif neither clear the debt to the 1stthe debt to the 1st defendant bank nor paid the rent to the 2 defendant bank nor paid the rent to the 2ndnd defendant defendant and without any base contending that article 70 of the Limitation Act,and without any base contending that article 70 of the Limitation Act, 1962 is applicable is of no avail. 1962 is applicable is of no avail.
19..19In the instant case, from the evidence of P.W.1, it can be culled outIn the instant case, from the evidence of P.W.1, it can be culled out that the plaintif is aware about the damage to the schedule stock even inthat the plaintif is aware about the damage to the schedule stock even in the year 2008 itself. But, he has not taken any steps to claim damages inthe year 2008 itself. But, he has not taken any steps to claim damages in the suit at the first instance. Even in the writ petition filed by the plaintifthe suit at the first instance. Even in the writ petition filed by the plaintif 16
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before the Hon’ble High Court of Andhra Pradesh at Hyderabad, thebefore the Hon’ble High Court of Andhra Pradesh at Hyderabad, the
ground pleaded by the Plaintif is that due to negligence on the part of theground pleaded by the Plaintif is that due to negligence on the part of the 22ndnd defendant, the stock was damaged. So the Plaintif is aware about the defendant, the stock was damaged. So the Plaintif is aware about the damage to the stock in the year 2008 itself and at the time of filing of Writdamage to the stock in the year 2008 itself and at the time of filing of Writ
Petition before the Hon’ble High Court of Andhra Pradesh and at the timePetition before the Hon’ble High Court of Andhra Pradesh and at the time of presentation of the plaint, but he has not resorted to claim damages inof presentation of the plaint, but he has not resorted to claim damages in this suit and by way of amendment, he claimed the damages. As rightlythis suit and by way of amendment, he claimed the damages. As rightly relied by the learned counsel for the 1strelied by the learned counsel for the 1st defendant in defendant in T.N.Alloy Foundry T.N.Alloy Foundry
Co.Limited Vs T.N.Electricity Board and others [decided on 12-02- Co.Limited Vs T.N.Electricity Board and others [decided on 12-02- 2004] in Appeal (Civil) No.7615 of 2002 of Hon’ble Supreme Court 2004] in Appeal (Civil) No.7615 of 2002 of Hon’ble Supreme Court of India, if a fresh suit on the amended claim would be barred byof India, if a fresh suit on the amended claim would be barred by limitation on the date of application, the Court should decline to allow thelimitation on the date of application, the Court should decline to allow the amendments., and also relied on the decision, in Sampath Kumar Vsamendments., and also relied on the decision, in Sampath Kumar Vs
Ayyakannu and another [decided on 13-09-2002] in Appeal (Civil ) Ayyakannu and another [decided on 13-09-2002] in Appeal (Civil ) 5839 of 2002 of Hon’ble Supreme Court of India., and submitted that5839 of 2002 of Hon’ble Supreme Court of India., and submitted that an amendment once incorporated relates back to the date of suit.an amendment once incorporated relates back to the date of suit.
However, the doctrine of relation back in the context of amendment ofHowever, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases, thepleadings is not one of universal application and in appropriate cases, the
Court is competent while permitting an amendment to direct that theCourt is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suitamendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been broughtand to the extent permitted by it shall be deemed to have been brought
before the Court on the date on which, the application seeking thebefore the Court on the date on which, the application seeking the
amendment was filed.amendment was filed.
(ii). In the instant case, the plaintif though he is aware about the(ii). In the instant case, the plaintif though he is aware about the damage to the stock, he has not taken any steps to protect his stock, hedamage to the stock, he has not taken any steps to protect his stock, he even did not issue any notice in written either to the 1steven did not issue any notice in written either to the 1st defendant Bank or defendant Bank or to the 2ndto the 2nd defendant cold storage. Though he stated in his evidence that defendant cold storage. Though he stated in his evidence that orally he informed to the defendants, there is no cogent evidence to thatorally he informed to the defendants, there is no cogent evidence to that efect and therefore, the oral assertion of the plaintif cannot be relied.efect and therefore, the oral assertion of the plaintif cannot be relied.
Moreover, the Plaintif has not taken any steps and he kept quiet for allMoreover, the Plaintif has not taken any steps and he kept quiet for all 17
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these years i.e., till the issuance of notice by the 1stthese years i.e., till the issuance of notice by the 1st defendant Bank to defendant Bank to auction the scheduled stock. Hence, it can be said that by the date ofauction the scheduled stock. Hence, it can be said that by the date of amendment, it is barred by limitation.amendment, it is barred by limitation.
220 0..At this juncture, it is necessary to look into the tripartite agreementAt this juncture, it is necessary to look into the tripartite agreement under Ex.B.8 entered between the plaintif and the defendants. It wasunder Ex.B.8 entered between the plaintif and the defendants. It was agreed between the parties as follows:-agreed between the parties as follows:-
1. The Firm states that the Borrower has stored the produce in the1. The Firm states that the Borrower has stored the produce in the Godown and that the Warehouse Receipt No.676 dated 29-05-2006 trulyGodown and that the Warehouse Receipt No.676 dated 29-05-2006 truly represent/s the produce of the Borrower stored in the Godown.represent/s the produce of the Borrower stored in the Godown.
2. The Firm understands that the Bank is extending the produce loan2. The Firm understands that the Bank is extending the produce loan of Rs.2,33,000/- to the Borrower on the strength of the Cold storageof Rs.2,33,000/- to the Borrower on the strength of the Cold storage receipt/s issued by them and agrees that they will not part with or deliverreceipt/s issued by them and agrees that they will not part with or deliver the produce except after receipt of the written authorization of the Bank.the produce except after receipt of the written authorization of the Bank. The Firm further agrees not to deal with the produce in any mannerThe Firm further agrees not to deal with the produce in any manner without reference to the Bank.without reference to the Bank.
3.The Firm agrees with the Bank that in the event of default of3.The Firm agrees with the Bank that in the event of default of repayment by the Borrower, the Bank shall be entitled to demand uponrepayment by the Borrower, the Bank shall be entitled to demand upon the Firm to deliver custody of the produce covered under there aforesaidthe Firm to deliver custody of the produce covered under there aforesaid Cold storage Receipt/s with full rights to sell them as pledgee forCold storage Receipt/s with full rights to sell them as pledgee for realization of the loan granted by the bank to the Borrower and the Firmrealization of the loan granted by the bank to the Borrower and the Firm undertakes to comply with the demand so made by the Bank forthwithundertakes to comply with the demand so made by the Bank forthwith without claiming any rights over the produce of the Borrower forwithout claiming any rights over the produce of the Borrower for realization of its own dues. realization of its own dues.
4.The Firm agrees to indemnify the Bank as against any loss,4.The Firm agrees to indemnify the Bank as against any loss, damage of injury caused to the produce stored by the Borrower in thedamage of injury caused to the produce stored by the Borrower in the godown. In the event of any such loss, damage or injury being caused togodown. In the event of any such loss, damage or injury being caused to the produce of the Borrower, the Firm shall forthwith pay the value of thethe produce of the Borrower, the Firm shall forthwith pay the value of the produce to the Bank.produce to the Bank.
5.The Borrower agrees that the Bank need not necessarily exercise5.The Borrower agrees that the Bank need not necessarily exercise its right for realization from the produce alone and that the Borrower isits right for realization from the produce alone and that the Borrower is responsible to repay the loan on a demand being made by the Bank. responsible to repay the loan on a demand being made by the Bank.
6.The Bank agrees that in the event of payment of all the dues to6.The Bank agrees that in the event of payment of all the dues to the bank by the Borrower, the Cold Storage Receipt/s aforesaid will bethe bank by the Borrower, the Cold Storage Receipt/s aforesaid will be discharged and returned to the Borrower and the Firm informed of thedischarged and returned to the Borrower and the Firm informed of the withdrawal of Bank’s rights over the produce. withdrawal of Bank’s rights over the produce.
7.The Firm and the Borrower agree that this Agreement is in addition7.The Firm and the Borrower agree that this Agreement is in addition to the other documents executed or to be executed in favour of the Bank. to the other documents executed or to be executed in favour of the Bank.
In the 4thIn the 4th clause, the firm i.e., the 2 clause, the firm i.e., the 2ndnd defendant cold storage agrees defendant cold storage agrees to indemnify the 1stto indemnify the 1st defendant Bank as against any loss, damage or injury defendant Bank as against any loss, damage or injury caused to the produce stored by the plaintif in the godown. In the event ofcaused to the produce stored by the plaintif in the godown. In the event of any such loss, damage of injury being caused to the produce of theany such loss, damage of injury being caused to the produce of the plaintif, the cold storage shall forthwith pay the value of the produce toplaintif, the cold storage shall forthwith pay the value of the produce to the Bank. There is no agreement that either the 1the Bank. There is no agreement that either the 1 st st defendant Bank defendant Bank 18
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or the 2 nd or the 2 nd defendant cold storage has to pay the damages to the defendant cold storage has to pay the damages to the plaintiff. plaintiff.
(ii). Admittedly, the plaintif did not repay the loan to the 1st(ii). Admittedly, the plaintif did not repay the loan to the 1st defendant Bank and he has not paid any rent to the 2nddefendant Bank and he has not paid any rent to the 2nd defendant cold defendant cold storage in respect of the stock stored by him under Ex.B.11. Since thestorage in respect of the stock stored by him under Ex.B.11. Since the
Plaintif did not repay the loan, the 1stPlaintif did not repay the loan, the 1st defendant bank issued auction defendant bank issued auction notice and sold the stock produced by the 2ndnotice and sold the stock produced by the 2nd defendant i.e., 118 [50 kgs defendant i.e., 118 [50 kgs each] and cog variety on 19 bags [each 50 kgs] which were damaged foreach] and cog variety on 19 bags [each 50 kgs] which were damaged for about 60%. The Plaintif is contending that the 1stabout 60%. The Plaintif is contending that the 1st defendant bank has to defendant bank has to make some periodical checkups and the 2ndmake some periodical checkups and the 2nd defendant has to maintain defendant has to maintain sufficient temperature then no damage would be caused to the schedulesufficient temperature then no damage would be caused to the schedule goods. He also submitted that the pulses are not perishable commoditiesgoods. He also submitted that the pulses are not perishable commodities and it have long life and 5% can be taken into consideration for damage asand it have long life and 5% can be taken into consideration for damage as per the cold storage order, 1980. Bengal gram is not a perishableper the cold storage order, 1980. Bengal gram is not a perishable commodity like vegetables, fruits, eggs etc. The schedule goods werecommodity like vegetables, fruits, eggs etc. The schedule goods were stored in the 2ndstored in the 2nd defendant cold storage on 16-05-2006. The purpose of defendant cold storage on 16-05-2006. The purpose of storing the schedule goods in 2ndstoring the schedule goods in 2nd defendant cold storage was to sell the defendant cold storage was to sell the schedule goods, when there was a reasonable or hike prices in the marketschedule goods, when there was a reasonable or hike prices in the market and in the meanwhile, to facilitate the farmers to go for next crop, theand in the meanwhile, to facilitate the farmers to go for next crop, the nationalized banks are sanctioning loans to the farmers by keeping thenationalized banks are sanctioning loans to the farmers by keeping the storage bonds as security. Therefore, it is the bounden duty of the plaintifstorage bonds as security. Therefore, it is the bounden duty of the plaintif to sell the stock within a reasonable time and to discharge the debt due toto sell the stock within a reasonable time and to discharge the debt due to the 1stthe 1st defendant bank and to pay the rent for storing stock in the 2 defendant bank and to pay the rent for storing stock in the 2ndnd defendant cold storage. But, the plaintif has not taken any steps to selldefendant cold storage. But, the plaintif has not taken any steps to sell the schedule goods and he kept the stock in the 2ndthe schedule goods and he kept the stock in the 2nd defendant cold defendant cold storage without taking any steps. Though the Bengal gram is notstorage without taking any steps. Though the Bengal gram is not perishable commodity, it does not last intact for years together. The 1stperishable commodity, it does not last intact for years together. The 1st defendant Bank sold the schedule stock which was produced by the 2nddefendant Bank sold the schedule stock which was produced by the 2nd defendant in public auction on 01-01-2014. The schedule goods were solddefendant in public auction on 01-01-2014. The schedule goods were sold after lapse of more than 7 ½ years by the 1stafter lapse of more than 7 ½ years by the 1st defendant bank in order to defendant bank in order to 19
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recover the debt due to the bank. After lapse of such long period, there isrecover the debt due to the bank. After lapse of such long period, there is every possibility of natural depreciation in the quality and quantity of theevery possibility of natural depreciation in the quality and quantity of the stock, like fade of colour and shrinkage etc. Moreover, as per the tripartitestock, like fade of colour and shrinkage etc. Moreover, as per the tripartite agreement under Ex.B.8, the 2ndagreement under Ex.B.8, the 2nd defendant is liable for any loss or damage defendant is liable for any loss or damage to the schedule goods to the 1stto the schedule goods to the 1st defendant bank. Therefore, the decision defendant bank. Therefore, the decision relied on, by the counsel for the Plaintif i.e., V.V.R Cold Storage Privaterelied on, by the counsel for the Plaintif i.e., V.V.R Cold Storage Private
Limited Vs State Bank of India of our Hon’ble High Court [decided Limited Vs State Bank of India of our Hon’ble High Court [decided on 29-06-2010], is quite favourable to the 1on 29-06-2010], is quite favourable to the 1stst defendant Bank rather than defendant Bank rather than the plaintif, since it is observed that the Bank has to proceed against thethe plaintif, since it is observed that the Bank has to proceed against the cold storage and it is not the finding in the said decision that the plaintifcold storage and it is not the finding in the said decision that the plaintif can recover damages from the defendants 1 and 2. The another decisioncan recover damages from the defendants 1 and 2. The another decision relied by the learned counsel for the Plaintif between The Jammurelied by the learned counsel for the Plaintif between The Jammu
Tech.Co-op. Marketing Vs National Agricultural Co-Op.. [decided Tech.Co-op. Marketing Vs National Agricultural Co-Op.. [decided on 19-07-2005] reported in AIR 2006 J K 45, wherein it is held that, iton 19-07-2005] reported in AIR 2006 J K 45, wherein it is held that, it is the duty of the Cold storage to ensure that the potatoes stored in theis the duty of the Cold storage to ensure that the potatoes stored in the cold storage are properly protected and it is found that the potatoes hadcold storage are properly protected and it is found that the potatoes had sprouted in the cold storage and that itself proves that the damage hassprouted in the cold storage and that itself proves that the damage has occasioned due to the negligence of the 1stoccasioned due to the negligence of the 1st defendant by reason of non- defendant by reason of non- maintenance of the proper or required temperature. Learned counsel formaintenance of the proper or required temperature. Learned counsel for the Plaintif also relied on the decision between Dhanalakshmi Bankthe Plaintif also relied on the decision between Dhanalakshmi Bank
Limited Vs. K.K.Jose alias Jose Mohan reported in 1991 AIR (Ker)- Limited Vs. K.K.Jose alias Jose Mohan reported in 1991 AIR (Ker)- 0-388, and submitted that the pawnee is bound to return the goods in the0-388, and submitted that the pawnee is bound to return the goods in the same condition in which, they were on the date of pledge, it has to besame condition in which, they were on the date of pledge, it has to be seen whether any damage has been caused to the goods pledged by theseen whether any damage has been caused to the goods pledged by the defendant and whether the plaintif is in a position to redeliver the goodsdefendant and whether the plaintif is in a position to redeliver the goods in the same condition in which, they were at the time when they werein the same condition in which, they were at the time when they were entrusted to them at the time of pledge. As already discussed supra, theentrusted to them at the time of pledge. As already discussed supra, the proper party to sue for the loss or damage is only the 1stproper party to sue for the loss or damage is only the 1st defendant bank, defendant bank, but not the plaintif who is a defaulting party. Therefore, the abovebut not the plaintif who is a defaulting party. Therefore, the above decisions are no way helpful to the case of the plaintif. Moreover, thedecisions are no way helpful to the case of the plaintif. Moreover, the 20
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facts that are discussed in the above decisions and the facts in the instantfacts that are discussed in the above decisions and the facts in the instant case are diferent, as I already discussed above.case are diferent, as I already discussed above.
(iii). The 1st(iii). The 1st defendant bank filed the suit for recovery of its claim defendant bank filed the suit for recovery of its claim against both the plaintif and 2ndagainst both the plaintif and 2nd defendant cold storage herein in O.S.No.8 defendant cold storage herein in O.S.No.8 of 2014 on the file of this court. The plaintif by keeping all the lapses andof 2014 on the file of this court. The plaintif by keeping all the lapses and lacunae on his part, he is not entitled to claim damages from thelacunae on his part, he is not entitled to claim damages from the defendants. Further more, he is admitting about the execution of the loandefendants. Further more, he is admitting about the execution of the loan documents in favour of the 1stdocuments in favour of the 1st defendant bank and he is denying the defendant bank and he is denying the revival letter executed under Ex.B.12 in favour of the 1strevival letter executed under Ex.B.12 in favour of the 1st defendant bank. defendant bank.
In his evidence, he categorically stated that he is not in the habit ofIn his evidence, he categorically stated that he is not in the habit of keeping signatures on blank papers and he further stated that he is awarekeeping signatures on blank papers and he further stated that he is aware that the colour of the produce will change after one year and he has notthat the colour of the produce will change after one year and he has not gone through the bond which was issued by the 2ndgone through the bond which was issued by the 2nd defendant wherein, it defendant wherein, it is mentioned that they gave guarantee in respect of colour, quality andis mentioned that they gave guarantee in respect of colour, quality and quantity of the stock within one year. Whether the alleged revival lettersquantity of the stock within one year. Whether the alleged revival letters said to have been executed by the Plaintif in favour of the 1stsaid to have been executed by the Plaintif in favour of the 1st Defendant Defendant
Bank are true and valid will be decided in a suit for recovery of the balanceBank are true and valid will be decided in a suit for recovery of the balance amount filed by the 1stamount filed by the 1st defendant bank against the Plaintif and the 2 defendant bank against the Plaintif and the 2ndnd defendant cold storage herein vide O.S.No.08 of 2014 on the file of thisdefendant cold storage herein vide O.S.No.08 of 2014 on the file of this court.court.
(iv). However, in the present case, neither the plaintif approached(iv). However, in the present case, neither the plaintif approached the Court within the period of limitation, though he got knowledge thatthe Court within the period of limitation, though he got knowledge that there was damage to the stock even in the year 2008 itself, nor he takethere was damage to the stock even in the year 2008 itself, nor he take any steps to discharge the loan to the 1stany steps to discharge the loan to the 1st defendant bank or to sell the defendant bank or to sell the stock within the reasonable time.stock within the reasonable time.
21. The Learned counsel for the plaintif argued that the cold storage has21. The Learned counsel for the plaintif argued that the cold storage has to issue receipt in Form F of Clause 18 of Cold storage order 1980, but theto issue receipt in Form F of Clause 18 of Cold storage order 1980, but the 22ndnd defendant has not issued the receipt in the above terms and it is defendant has not issued the receipt in the above terms and it is against to Section 23 of the Indian Contract Act, 1872. For betteragainst to Section 23 of the Indian Contract Act, 1872. For better 21
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appreciation of the facts, I extracted Section 23 of Contract Act, 1872, asappreciation of the facts, I extracted Section 23 of Contract Act, 1872, as hereunder:hereunder:
Section 23. Section 23. What considerations and objects are lawful and What considerations and objects are lawful and what not:-:- what not
The consideration or object of an agreement is lawful, unless- it is The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful. Every agreement of which the object or consideration is unlawful is void.unlawful is void.
Learned counsel for the Plaintif relied on the decision, MahendrakumarLearned counsel for the Plaintif relied on the decision, Mahendrakumar
Chandulal Vs Central Bank of India [decided on 30-03-1983 Chandulal Vs Central Bank of India [decided on 30-03-1983 reported in 1984 (1) GLR 237 of Hon’ble High Court of Gurarat reported in 1984 (1) GLR 237 of Hon’ble High Court of Gurarat
High Court, and submitted that the contract limiting liability will beHigh Court, and submitted that the contract limiting liability will be opposed to public policy and void under Section 23 of the Contract Act., asopposed to public policy and void under Section 23 of the Contract Act., as it will be against the interests of the mercantile community and notit will be against the interests of the mercantile community and not necessary in the interests of the ship owners. necessary in the interests of the ship owners.
(ii). It is obvious to note here that, as per Section 23 of the Indian (ii). It is obvious to note here that, as per Section 23 of the Indian
Contract Act, the consideration or object of an agreement is lawful unlessContract Act, the consideration or object of an agreement is lawful unless it is forbidden by law or it would defeat the provisions of any law or isit is forbidden by law or it would defeat the provisions of any law or is fraudulent or opposed to public policy or the Court regards it as immoral.fraudulent or opposed to public policy or the Court regards it as immoral.
In the instant case, either consideration or object of tripartite agreementIn the instant case, either consideration or object of tripartite agreement are not unlawful and knowing the terms and conditions in tripartiteare not unlawful and knowing the terms and conditions in tripartite agreement, the plaintif entered the tripartite agreement. Further, afteragreement, the plaintif entered the tripartite agreement. Further, after knowing the contents in Ex.B.11-storage bond, the Plaintif stored theknowing the contents in Ex.B.11-storage bond, the Plaintif stored the schedule goods in the 2ndschedule goods in the 2nd defendant cold storage and Ex.B.11 is not defendant cold storage and Ex.B.11 is not violative or it is not defeating the provisions of any law, therefore, thisviolative or it is not defeating the provisions of any law, therefore, this
Court find no force in the contention of the plaintif and the aforesaidCourt find no force in the contention of the plaintif and the aforesaid decision is not applicable to the facts of the case on hand. decision is not applicable to the facts of the case on hand.
22. In order to substantiate that the 222. In order to substantiate that the 2ndnd defendant cold storage is defendant cold storage is maintaining sufficient temperature and managing the cold storage as permaintaining sufficient temperature and managing the cold storage as per 22
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the norms, it has examined D.Ws 3 to 6 on its behalf. Though they werethe norms, it has examined D.Ws 3 to 6 on its behalf. Though they were examined in cross-examination at length, nothing tangible is elicited byexamined in cross-examination at length, nothing tangible is elicited by the Plaintif to substantiate his contention that the plaintif sustained lossthe Plaintif to substantiate his contention that the plaintif sustained loss due to the negligence of the 2nddue to the negligence of the 2nd defendant cold storage. Further, the then defendant cold storage. Further, the then
Field Officer, who is examined as D.W.2 categorically stated that heField Officer, who is examined as D.W.2 categorically stated that he conducted periodical checkups in respect of the stored goods in the 2ndconducted periodical checkups in respect of the stored goods in the 2nd defendant cold storage.defendant cold storage.
(ii). Learned counsel for the Plaintif relied on the decision between(ii). Learned counsel for the Plaintif relied on the decision between
M/s.Kams Leatherware Limited Vs Punjab National Bank [decided M/s.Kams Leatherware Limited Vs Punjab National Bank [decided on 08-02-2012] of Hon’ble High Court of Punjab-Haryana High on 08-02-2012] of Hon’ble High Court of Punjab-Haryana High
Court., and submitted that the 2Court., and submitted that the 2ndnd defendant has to take care of goods defendant has to take care of goods stored in it. stored in it.
(iii). It is necessary to look here that the 2nd(iii). It is necessary to look here that the 2nd defendant cold storage defendant cold storage did not produce the entire stock for auction as per the terms in thedid not produce the entire stock for auction as per the terms in the tripartite agreement. The 2ndtripartite agreement. The 2nd defendant is liable for non-production of the defendant is liable for non-production of the
J.J.11 variety of 36 bags [50 kgs each] for auction to the 1stJ.J.11 variety of 36 bags [50 kgs each] for auction to the 1st defendant defendant bank. The 1stbank. The 1st defendant bank can recover in the suit filed by it in O.S.No.08 defendant bank can recover in the suit filed by it in O.S.No.08 of 2014 subject to result of that suit.of 2014 subject to result of that suit.
23..23The plaintif is claiming damages under Section 73 of the IndianThe plaintif is claiming damages under Section 73 of the Indian
Contract Act.,1872 and that both the defendants are liable to pay anContract Act.,1872 and that both the defendants are liable to pay an amount of Rs.5,37,000/- to him. According to the Plaintif, if the 2ndamount of Rs.5,37,000/- to him. According to the Plaintif, if the 2nd defendant produced undamaged Bengal gram intact, it should havedefendant produced undamaged Bengal gram intact, it should have fetched about Rs.7,000/- per quintal as on the date of auction dated 17-fetched about Rs.7,000/- per quintal as on the date of auction dated 17- 08-2013. So the plaintif is contending that he got loss of about 59 x08-2013. So the plaintif is contending that he got loss of about 59 x 6000= 3,54,000/-; 9.5 quintals x 6000 = 57000 and 18 quintals x 7000 =6000= 3,54,000/-; 9.5 quintals x 6000 = 57000 and 18 quintals x 7000 = 1,26,000/- in total about Rs.5,37,000/-. As per the explanation to Section1,26,000/- in total about Rs.5,37,000/-. As per the explanation to Section 73 of the Indian Contract Act, 1872 in estimating the loss or damage arise73 of the Indian Contract Act, 1872 in estimating the loss or damage arise from the breach of contract, the means of remedying the inconveniencefrom the breach of contract, the means of remedying the inconvenience 23
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caused by the non-performance of the contract must be taken in tocaused by the non-performance of the contract must be taken in to account.account.
(ii). Learned counsel for the 1st(ii). Learned counsel for the 1st defendant bank argued that due to defendant bank argued that due to the obstruction of the plaintif, the bank could not sell the schedule goodsthe obstruction of the plaintif, the bank could not sell the schedule goods in auction and the plaintif did not file any document from the market yardin auction and the plaintif did not file any document from the market yard or any authenticated document showing the price on the particular date.or any authenticated document showing the price on the particular date.
In support of its contentions, the learned counsel for the 1In support of its contentions, the learned counsel for the 1stst defendant- defendant-
Bank relied on the following decision in M/s.Muralidhar Chiranjilal VsBank relied on the following decision in M/s.Muralidhar Chiranjilal Vs
M/S.Harischandra Dwarakadas and another [decided on 29-03- M/S.Harischandra Dwarakadas and another [decided on 29-03- 1962] reported in 1962 AIR 366 of Hon’ble Supreme Court of 1962] reported in 1962 AIR 366 of Hon’ble Supreme Court of
India; and in India; and in Pannalal Jugatmal Vs State of Madhya Pradesh Pannalal Jugatmal Vs State of Madhya Pradesh [decided on 29-01-1953] reported in AIR 1963 MP 242.As rightly[decided on 29-01-1953] reported in AIR 1963 MP 242.As rightly submitted by the learned counsel for the 1stsubmitted by the learned counsel for the 1st defendant Bank, the plaintif defendant Bank, the plaintif did not file any piece of document before the Court basing on which thedid not file any piece of document before the Court basing on which the document he calculated the prices of the schedule goods on the particulardocument he calculated the prices of the schedule goods on the particular date and moreover, as discussed supra, keeping all the latches and lapsesdate and moreover, as discussed supra, keeping all the latches and lapses on the part of the plaintif, he is claiming damages which is not at allon the part of the plaintif, he is claiming damages which is not at all acceptable. Viewed from any angle, the plaintif is not entitled to recoveracceptable. Viewed from any angle, the plaintif is not entitled to recover either damages or future interest, since the relief of damages claimed byeither damages or future interest, since the relief of damages claimed by him is barred by limitation. Accordingly, these Issues are answered againsthim is barred by limitation. Accordingly, these Issues are answered against the Plaintif. the Plaintif.
24. ISSUES 1 to 3 24. ISSUES 1 to 3 : :
The plaintif initially at the time of filing of the suit sought the reliefThe plaintif initially at the time of filing of the suit sought the relief to declare that the 1stto declare that the 1st defendant bank claim against the marketing loan defendant bank claim against the marketing loan account is time barred and it has no right to sell the schedule goods foraccount is time barred and it has no right to sell the schedule goods for recovery of the loan amount, consequently to grant Permanent Injunctionrecovery of the loan amount, consequently to grant Permanent Injunction restraining the 1strestraining the 1st defendant Bank to sell the goods. The 1 defendant Bank to sell the goods. The 1stst defendant defendant bank filed a suit for recovery of the balance amount against the plaintifbank filed a suit for recovery of the balance amount against the plaintif and the 2ndand the 2nd defendant herein vide O.S.No.08 of 2014 on the file of this defendant herein vide O.S.No.08 of 2014 on the file of this 24
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court. The 1stcourt. The 1st defendant bank sold the scheduled goods in an auction. defendant bank sold the scheduled goods in an auction.
Therefore, the above relief of declaration and consequential permanentTherefore, the above relief of declaration and consequential permanent injunction, which are nothing-but negative reliefs and they becameinjunction, which are nothing-but negative reliefs and they became infructuous. The 3rdinfructuous. The 3rd relief i.e., to give direction to the 1 relief i.e., to give direction to the 1stst defendant bank to defendant bank to hand over the pledged storage bond issued by the 1sthand over the pledged storage bond issued by the 1st defendant Bank to defendant Bank to the Plaintif is futile, since the 1stthe Plaintif is futile, since the 1st defendant bank filed a suit against the defendant bank filed a suit against the plaintif and 2ndplaintif and 2nd defendant basing on the said storage bond and tripartite defendant basing on the said storage bond and tripartite agreement. As I already discussed in the earlier issues, whether the debtagreement. As I already discussed in the earlier issues, whether the debt is time barred or not, shall be decided in the suit filed for recovery of theis time barred or not, shall be decided in the suit filed for recovery of the loan amount by the 1stloan amount by the 1st defendant vide O.S.No.08 of 2014 on the file of this defendant vide O.S.No.08 of 2014 on the file of this court. Therefore, the reliefs claimed by the Plaintif for declaration,court. Therefore, the reliefs claimed by the Plaintif for declaration, consequential permanent injunction and direction became infructuous andconsequential permanent injunction and direction became infructuous and therefore, the plaintif is not entitled to the said reliefs. Accordingly, thesetherefore, the plaintif is not entitled to the said reliefs. Accordingly, these issues are answered. issues are answered.
ISSUE No.4 and ADDITIONAL ISSUE No.4: ISSUE No.4 and ADDITIONAL ISSUE No.4:
25..25Because of my preceding findings in the earlier issues, without anyBecause of my preceding findings in the earlier issues, without any hesitation it can be said that the suit is liable to be dismissed with costs.hesitation it can be said that the suit is liable to be dismissed with costs.
In the result, the suit is dismissed with costs. In the result, the suit is dismissed with costs.
Dictated to Stenographer, transcribed by him, corrected and pronounced Dictated to Stenographer, transcribed by him, corrected and pronounced
by me in the open court on this the 24thby me in the open court on this the 24th day of March, 2023. day of March, 2023.
Sd/-M.Kumudini Sd/-M.Kumudini
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
PACHUR. PACHUR.
APPENDIX OF EVIDENCE APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR WITNESSES EXAMINED FOR
PLAINTIFFs PLAINTIFFs ::
PW1: Thamma Ammi Reddy– PlaintifPW1:– Plaintif
DEFENDANTs: DEFENDANTs:
DW1: Bolleddu Chinna Rao. DW2: Pappu Krishna Prasad.(Examined through commissioner) DW3: Gokaraju Srinivasa Raju DW4: Arla Anjaneyulu DW5: Bommireddy Lakshmi Narayana DW6: Manduva Seetharmanjaneyulu.
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DOCUMENTS MARKED FOR DOCUMENTS MARKED FOR
PLAINTIFFS : PLAINTIFFS :
Ex.A1: Photostat copy of the storage bond dt:29.05.2006.
Ex.A2: Notice issued to the plaintif dt:31.3.12.
Ex.A3: Office copy of reply notice dt: 12.4.12.
Ex.A4: Receipt of courier dt: 12.04.2012.
Ex.A5: Notice issued to the plaintif dt: 4.7.12.
Ex.A6: Certified copy of opinion of forensic expert.
Ex.A7: Certified copy of plaint in OS. 07/2014.
DEFENDANTs : : DEFENDANTs
Ex.B1: Certified copy of W/S of D2 in O.S.08/2014 dt: 2.6.14,
Ex.B2: Certified copy of deposition of Dw1 in O.S.08/2014,
Ex.B3: Certified copy of deposition of Dw.3 in O.S.08/2014,
Ex.B4: Certified copy of Notice of bank lien on specified goods dt: 29.05.2006,
Ex.B5: Certified copy of pledge notice dated 29.05.2006
Ex.B6: Certified copy of Application of loan against the security of ware house receipt dated 30.5.06,
Ex.B7: Certified copy of Sanction letter dated 30.05.2006,
Ex.B8: Certified copy of Tripartite agreement dt: 30.05.2006,
Ex.B9: Certified copy of D.P notice for Rs.1,64,000/- dt 30.05.2006,
Ex.B10: Certified copy of D.P note delivery letter dt:30.5.2006,
Ex.B11: Certified copy of Storage bond No.677 issued by D2 to the plaintif dated 16.05.2006,
Ex.B12: Certified copy of Revival letter executed by the plaintif dated 26.05.2009,
Ex.B13: Certified copy of office copy of auction notice got issued by D1 to the plaintif and D2 dated 31.03.2012,
Ex.B14: Certified copy of Reply notice got issued by the plaintif dated 12.04.2012, Ex.B15: Certified copy of Revival letter executed by the plaintif dated 27.04.2012, Ex.B16: Certified copy of order in Writ petition No.20781/2012 issued by the Hon’ble high court of A.P., Hyderabad dated 11.07.2012, 26
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Ex.B17: Certified copy of paper publication and bid papers dt 04.06.2013,
Ex.B18: Certified copy of paper publication and bid papers
dated 17.08.2013,
Ex.B19: Certified copy of account copy dated 01.01.2014.
Sd/-M.Kumudini Sd/-M.Kumudini
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
PACHUR. PACHUR.
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// TRUE COPY // // TRUE COPY //
SENIOR CIVIL JUDGE, SENIOR CIVIL JUDGE,
PARCHUR. PARCHUR.
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IN THE COURT OF SENIOR CIVIL JUDGE, PARCHUR.
Present: Smt M.KUMUDINI,
Senior Civil Judge, Parchur.
Friday, this the Twenty Fourth [24th] day of March, 2023
Original Suit No.41 of 2012
Between:
Thamma Ammi Reddy S/o.Narayana Reddy, aged about 42 years Hindu, cultivation, r/o.Jagarlamudi Village Parchur mandal, Parchur D.M.C. … Plaintif -And- 1.State Bank of India, Parchur, represented by its Branch Manager, having its Branch Office at Parchur 2.Sri Mahalaxmi Cold Storage Represented by its Manager / Managing Director Having its office at Throvagunta, N.H.5 Throvagunta Village, Ongole Mandal and D.M.C. … Defendants
The plaintif filed the above suit against the defendants for The plaintif filed the above suit against the defendants for declaration that the first defendant claim against the plaintif in respect ofdeclaration that the first defendant claim against the plaintif in respect of the produce marketing loan account No.11321069014 is time barred andthe produce marketing loan account No.11321069014 is time barred and that the first defendant has no right to sell the scheduled goods for thethat the first defendant has no right to sell the scheduled goods for the recovery of the said loan amount; consequently for granting permanentrecovery of the said loan amount; consequently for granting permanent injunction to restrain the first defendant to sell the scheduled goods forinjunction to restrain the first defendant to sell the scheduled goods for the recovery of amount under the said loan account No.11321069014; forthe recovery of amount under the said loan account No.11321069014; for directing the first defendant to hand over the pledged storage bond, dateddirecting the first defendant to hand over the pledged storage bond, dated 29-05-2006 issued by the second defendant in favour of the plaintif to the29-05-2006 issued by the second defendant in favour of the plaintif to the plaintif; for an amount of Rs.5,37,000/- (Rupees five lakhs thirty sevenplaintif; for an amount of Rs.5,37,000/- (Rupees five lakhs thirty seven thousand only) towards damages; for future interest from 17.08.2013 tillthousand only) towards damages; for future interest from 17.08.2013 till the date of realization and for costs of the suit. the date of realization and for costs of the suit.
Date of presentation: 16.07.2012 Date of filing:16.07.2012Date of presentation: 16.07.2012 Date of filing:16.07.2012
Cause of Action: Cause of Action: For the suit arose, on 16-05-2006 when the plaintif stored theFor the suit arose, on 16-05-2006 when the plaintif stored the scheduled goods in the cold storage and on 29-05-2006 when the secondscheduled goods in the cold storage and on 29-05-2006 when the second defendant issued storage bond and on 30-05-2006 when the plaintifdefendant issued storage bond and on 30-05-2006 when the plaintif pledged the storage bond issued by the second defendant with the firstpledged the storage bond issued by the second defendant with the first defendant Bank obtained loan of Rs.2,33,000/- and later when thedefendant Bank obtained loan of Rs.2,33,000/- and later when the scheduled goods were damaged totally and when the first defendantscheduled goods were damaged totally and when the first defendant allowed the second defendant to do business with the stored stocks andallowed the second defendant to do business with the stored stocks and on 31-03-2012 when the legal notice issued by the 1ston 31-03-2012 when the legal notice issued by the 1st defendant and later defendant and later on 04-07-2012 when again the first defendant issued notice claiming anon 04-07-2012 when again the first defendant issued notice claiming an amount of Rs.5,66,131/- and to auction the scheduled goods and atamount of Rs.5,66,131/- and to auction the scheduled goods and at Parchur where the first defendant bank is situate and loan transactionParchur where the first defendant bank is situate and loan transaction took place which is within the jurisdiction of this Court.took place which is within the jurisdiction of this Court.
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Court fee and Valuation:- Court fee and Valuation:- The suit is valued as hereunder:The suit is valued as hereunder:
(a). As the suit is for declaration and for consequential injunction,(a). As the suit is for declaration and for consequential injunction, the suit is valued at Rs.5,66,131/-, which is the value for the purpose ofthe suit is valued at Rs.5,66,131/-, which is the value for the purpose of value for the purpose of jurisdiction, on which a court fee of Rs.8,126/- isvalue for the purpose of jurisdiction, on which a court fee of Rs.8,126/- is paid under Section 24(d) of the APCF and SV Act is paid. paid under Section 24(d) of the APCF and SV Act is paid. As the suit is amended for recovery of damages for an amount ofAs the suit is amended for recovery of damages for an amount of Rs.5,37,000/-, a court fee of Rs.7826/- is paid under Section 20 of APCFRs.5,37,000/-, a court fee of Rs.7826/- is paid under Section 20 of APCF and SV Act.and SV Act.
This suit came before me for final hearing on 21-02-2023 in theThis suit came before me for final hearing on 21-02-2023 in the presence of Sri Chaganti Subba Rao, Advocate for plaintif, Sri R.presence of Sri Chaganti Subba Rao, Advocate for plaintif, Sri R. Satyanarayana, Advocate for the first defendant and of Sri Y.Satyanarayana, Advocate for the first defendant and of Sri Y. Venkateswara Rao, Advocate for the second defendant and upon perusingVenkateswara Rao, Advocate for the second defendant and upon perusing the plaint, written statements, Rejoinder to the plaint, amended plaint,the plaint, written statements, Rejoinder to the plaint, amended plaint,
additional written statements and other connected material papers onadditional written statements and other connected material papers on
record and having stood over for consideration till this day, this court,record and having stood over for consideration till this day, this court, doth Order IN DISMISSING THE SUIT:doth Order IN DISMISSING THE SUIT:
i. i. That the suit be and the same is hereby dismissed;That the suit be and the same is hereby dismissed; ii. ii. That Plaintif do pay a sum of Rs.18,785-00 and Rs.20,202-00 That Plaintif do pay a sum of Rs.18,785-00 and Rs.20,202-00 to the Defendants 1 and 2 respectively and the plaintif do to the Defendants 1 and 2 respectively and the plaintif do bear his own costs of Rs.--NIL-- [No CM & F.C filed on behalf of bear his own costs of Rs.--NIL-- [No CM & F.C filed on behalf of the Plaintif].the Plaintif].
(plaint schedule appended hereto)(plaint schedule appended hereto)
Given under my hand and the seal of this Court, this the 24thGiven under my hand and the seal of this Court, this the 24th day of March, 2023. day of March, 2023.
Sd/-M.Kumudini Sd/-M.Kumudini
Senior Civil Judge, Senior Civil Judge,
Parchur. Parchur.
MEMORANDUM OF COSTSMEMORANDUM OF COSTS
Sl.DescriptionFor plaintifFor D.1 For D.2 No.
1.Stamp on vakalath[No CM & FC 2-00 2-00
2.Stamp on plaintfiled]-- - -
3.Process– - - [as claimed 18,683-00
4.Advocate Fee15,000-00 [as claimed
5.Type charges100-00100-00
6.Writing charges -- 100-00 Total:18,785-00 20,202-00
Sd/-M.Kumudini Sd/-M.Kumudini
S.C.J., Parchur. S.C.J., Parchur.
Note: The exhibited documents and non exhibited documents which are markedNote: The exhibited documents and non exhibited documents which are marked have to be taken back by the parties concerned within the stipulated time with anhave to be taken back by the parties concerned within the stipulated time with an undertaking to produce the same as and when required by the court.undertaking to produce the same as and when required by the court.
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The learned counsel for the plaintif argued that the second defendant has to inform about the natural damage of the goods to the plaintif and the first defendant bank by way of notice, but he did not resort to issue any notice and the first defendant bank has no right to sell the goods. It is also argued that the first defendant bank did not inspect the schedule goods periodically and if cold storage maintains sufficient temperature no damage would be caused to the schedule goods. He also argued that the schedule goods are not perishable commodities and it has long life and due to negligence of the second defendant loss is caused to the plaintif and the second defendant is liable to pay the damages to the plaintif and sought to decree the suit.
12. The learned counsel for the first defendant argued that by the date of12. The learned counsel for the first defendant argued that by the date of filing of the suit, the plaintif got knowledge that there was a damage tofiling of the suit, the plaintif got knowledge that there was a damage to the schedule goods but he kept quite without seeking the said relief andthe schedule goods but he kept quite without seeking the said relief and till the notice was issued by the first defendant bank plaintif has not takentill the notice was issued by the first defendant bank plaintif has not taken any steps. He also submitted that the plaintif did not approach the courtany steps. He also submitted that the plaintif did not approach the court with clean hands and the first defendant bank could not sell the schedulewith clean hands and the first defendant bank could not sell the schedule goods in auction due to the obstruction of the plaintif. He also raised thatgoods in auction due to the obstruction of the plaintif. He also raised that plaintif did not file any document to prove market price is Rs.7,000/- onplaintif did not file any document to prove market price is Rs.7,000/- on the particular date. He also contended that the limitation has to bethe particular date. He also contended that the limitation has to be calculated from the date of knowledge and the plaintif did not approachcalculated from the date of knowledge and the plaintif did not approach 32
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the court within the period of limitation and sought for dismissal of thethe court within the period of limitation and sought for dismissal of the suit. suit.
Learned counsel for the Plaintif relied on the following decisions i.e.,Learned counsel for the Plaintif relied on the following decisions i.e.,
The learned counsel for the plaintif argued that the second defendant hasThe learned counsel for the plaintif argued that the second defendant has to inform about the natural damage of the goods to the plaintif and toto inform about the natural damage of the goods to the plaintif and to take care of the goods bailed. In support of his plea he relied on a decisiontake care of the goods bailed. In support of his plea he relied on a decision i.e., [1]. i.e., [1]. M/s.Kams Leatherware Limited Vs Punjab National Bank M/s.Kams Leatherware Limited Vs Punjab National Bank [decided on 08-02-2012] of Hon’ble High Court of Punjab-Haryana [decided on 08-02-2012] of Hon’ble High Court of Punjab-Haryana
High Court. . High Court
The learned counsel for the first defendant argued that by the date ofThe learned counsel for the first defendant argued that by the date of filing of the suit, the plaintif got knowledge that there was a damage tofiling of the suit, the plaintif got knowledge that there was a damage to the schedule goods but he kept quite without seeking the said relief andthe schedule goods but he kept quite without seeking the said relief and 33
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till the notice was issued by the first defendant bank plaintif has not takentill the notice was issued by the first defendant bank plaintif has not taken any steps. any steps.
The counsel for the plaintif argued that the 1stThe counsel for the plaintif argued that the 1st defendant is not entitled to defendant is not entitled to sue on the debt, because the 1stsue on the debt, because the 1st defendant is not in a position to return the defendant is not in a position to return the goods pledged by the plaintif. In support of his plea, he relied on agoods pledged by the plaintif. In support of his plea, he relied on a decision [2]. Dhanalakshmi Bank Limited Vs. K.K.Jose alias Josedecision [2]. Dhanalakshmi Bank Limited Vs. K.K.Jose alias Jose
Mohan reported in 1991 AIR (Ker) -0-388. The facts that areMohan reported in 1991 AIR (Ker) -0-388. The facts that are discussed in the above decision and the facts that are in the instant casediscussed in the above decision and the facts that are in the instant case are diferent, as such, the above said citation is no way helpful to the caseare diferent, as such, the above said citation is no way helpful to the case of the Plaintif. of the Plaintif.
3. in V.V.R Cold Storage Private Limited Vs State Bank of India of3. in V.V.R Cold Storage Private Limited Vs State Bank of India of our Hon’ble High Court [decided on 29-06-2010]; our Hon’ble High Court [decided on 29-06-2010];
4. in Mahendrakumar Chandulal Vs Central Bank of India [decided4. in Mahendrakumar Chandulal Vs Central Bank of India [decided on 30-03-1983 reported in 1984 (1) GLR 237 of Hon’ble High Court on 30-03-1983 reported in 1984 (1) GLR 237 of Hon’ble High Court of Gurarat High Court; of Gurarat High Court;
5. in The Jammu Tech.Co-op. Marketing Vs National Agricultural5. in The Jammu Tech.Co-op. Marketing Vs National Agricultural
Co-Op.. [decided on 19-07-2005] reported in AIR 2006 J K 45; Co-Op.. [decided on 19-07-2005] reported in AIR 2006 J K 45;
6. in Seth Ramdayal Jat Vs Laxmi Prasad [decided on 15-04-2009]6. in Seth Ramdayal Jat Vs Laxmi Prasad [decided on 15-04-2009] of Hon’ble Supreme Court of India in Civil Appeal No.2543 of 2009. of Hon’ble Supreme Court of India in Civil Appeal No.2543 of 2009.
The learned counsel for the 1stThe learned counsel for the 1st defendant-Bank relied on the following defendant-Bank relied on the following decisions__decisions__
1.1.T.N.Alloy Foundry Co.Limited Vs T.N.Electricity Board and T.N.Alloy Foundry Co.Limited Vs T.N.Electricity Board and others [decided on 12-02-2004] in Appeal (Civil) No.7615 of 2002 others [decided on 12-02-2004] in Appeal (Civil) No.7615 of 2002 of Hon’ble Supreme Court of India; of Hon’ble Supreme Court of India;
2. State of Gujarat Vs.M/s.Kothari and Associates [decided on2. State of Gujarat Vs.M/s.Kothari and Associates [decided on 16-10-2015] in Civil Appeal No.1770 of 2005 of Hon’ble Supreme 16-10-2015] in Civil Appeal No.1770 of 2005 of Hon’ble Supreme
Court of India; Court of India; 34
OS.No.41/2012, Dt.24.03.2023
S.C.J., Court, Parchur.
3.3.M/s.Muralidhar Chiranjilal Vs M/S.Harischandra Dwarakadas M/s.Muralidhar Chiranjilal Vs M/S.Harischandra Dwarakadas and another [decided on 29-03-1962] reported in 1962 AIR 366 of and another [decided on 29-03-1962] reported in 1962 AIR 366 of
Hon’ble Supreme Court of India; Hon’ble Supreme Court of India;
4. 4. Pannalal Jugatmal Vs State of Madhya Pradesh [decided on Pannalal Jugatmal Vs State of Madhya Pradesh [decided on 29-01-1953] reported in AIR 1963 MP 242; 29-01-1953] reported in AIR 1963 MP 242;
5.5.Sampath Kumar Vs Ayyakannu and another [decided on 13- Sampath Kumar Vs Ayyakannu and another [decided on 13- 09-2002] in Appeal (Civil ) 5839 of 2002 of Hon’ble Supreme Court 09-2002] in Appeal (Civil ) 5839 of 2002 of Hon’ble Supreme Court of India; of India;
6. Md.Ammanuallah Ghouri Vs Government of Andhra Pradesh6. Md.Ammanuallah Ghouri Vs Government of Andhra Pradesh rep.by its Secretary, Municipal Administration and Urban rep.by its Secretary, Municipal Administration and Urban
Development Department and others reported in Development Department and others reported in 2013(2) ALT 70 2013(2) ALT 70 (D.B); (D.B);
2. 2.