The main legal point established in the judgment is that the principle of unjust enrichment, as per the Indian Contract Act, must be lawfully applicable to hold a party liable for restitution.

JUDGMENT :

NIKHIL S. KARIEL, J.

1. Heard learned Advocate Mr. Kuldeep Acharya for learned Advocate Mr. Mrugen Purohit on behalf of the appellants and learned Advocate Mr.Nagesh Sood on behalf of respondent no. 1. None present for respondent no. 2.

2. By way of this appeal the appellants have assailed judgment and decree passed by the learned City Civil Court, Ahmedabad dated 28.02.2002 in Civil Suit No. 4859 of 1990 instituted by the respondent no. 1 herein.

3. For the sake of convenience the parties would be referred to as per their status in the civil suit.

4. It appears that the original plaintiff- bank had instituted the suit inter-alia contending that the original defendant no. 1 was holding a savings Bank account in the plaintiff-bank and whereas in lieu of such savings bank account a cheque book had been issued and whereas the defendant no. 1 had issued a cheque bearing no. 406338 dated 05.11.1987 for Rs. 14000/- drawn on the plaintiff bank in favour of the defendant no. 2. It appears that the said cheque had been dishonoured on account of funds being insufficient and whereas such dishonour had occurred for the first time on 19.04.1988. It appears that thereafter the cheque was again presented by defendant no. 2 and was sent to clearing house on 22.04.1988 and whereas the said cheque again returned by the plaintiff-bank and whereas since the cheque had not been received by the bank of defendant no. 2 i.e Punjab National Bank, the later bank had made payment of Rs. 14,000/- to the defendant i.e the cheque amount. It appears that the said amount was credited in suspense account and after obtaining permission from the Controlling Authority an overdraft facility was created in the account of the defendant no. 1 and the entry in the suspense account was reversed and whereas the plaintiff- bank had thereafter called upon the defendant no. 1 to liquidate the said amount but he had refused to pay any amount and whereas upon a legal notice being caused to the issued by plaintiff-bank, the defendant no. 1 had rejected the request of making the payment of the amount in favour of the plaintiff-bank and whereas a notice sent to defendant no. 2 for making appropriate payment had remained unanswered and therefore, the plaintiff-bank had instituted the suit for recovery of the amount in question.

4.1 It appears that by way of the impugned judgment and decree, the learned Civil Court had declared that the plaintiff was entitled to recover an amount to the tune of Rs. 19302.25 from defendants no. 1/1 to 1/3 jointly and severally with running interest on the sum of Rs. 13,800/- @ 16.5% per annum from 26.04.1988 till actual realization. It is also required to be noted that as far as defendant no. 2 was concerned, the suit had been dismissed.

5. Learned Advocate for the appellant has assailed the impugned decision by submitting that as such the defendant no. 1 had never instructed the plaintiff- bank to open an overdraft facility on behalf of the defendant no. 1. Learned Advocate would submit that the plaintiff- bank had of its own had created an overdraft facility and passed on payment to the bank of respondent no. 2 and whereas for such unilateral decisions of the plaintiff-bank, the defendant no. 1 could not be held liable in any manner whatsoever. Learned Advocate would further submit that as it is, the cheque issued to defendant no. 2 was given as a security, more particularly in lieu of some transaction between the son of defendant no. 1 and the defendant no. 2 and whereas there was no understanding that the cheque would be presented or the cheque would be honoured. Learned Advocate would submit that on account of presentation of the cheque, and whereas though the cheque had been dishonoured even for a second time, yet the plaintiff- bank had made payment to the bank of the defendant no. 2 who had actually made the payment to defendant no. 2, inspite of the plaintiff- bank not being under any obligation to do the same and whereas according t