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2004 Supreme(Jhk) 609
High Court Of Jharkhand
Judgename : VISHNUDEO NARAYAN
MAKHAN LAI HARNARAIN - Appellant
Versus
KARAMCHAND THAPER AND BROS., PVT.LTD., - Respondents
A. O. D. 329 Of 1989
Decided On : 06/22/2004
ANUP MEHTA, ROHIT ROY, V.K.PRASAD
Forum under Section 23 of the said Act is an additional forum and it does not oust the jurisdiction of the Civil Court under the general law and the suit before the Civil court is maintainable and besides that liability of the erstwhile owner of a coal mine does not cease due to vesting of coal mines.
Headnote:
MONEY SUIT - Claim for realisation of Rs. 2,69,570.63 paise along with pendente lite and future interest @ 12% per annum against the defendants - respondents on the basis of the Hundies detailed in Schedule A of the plaint - Hundies were not retired by the defendant No. 1 on presentation and in spite of repeated demands the defendant Nos. 1 and 2 have not paid the amount due under the said hundies - Defendant No. 2 as per the terms of the continuing guarantee given by him as per the document dated 4-1-1965 is also personally liable to pay the dues under the said Hundies - Plaintiff preferred their claim before the Commissioner of Payments which is the only forum for preferment of claims against erstwhile owners as laid down under the Coking Coal mines (Nationalisation) Act, 1972 (hereinafter referred to as the said act) - Civil Court has no jurisdiction to adjudicate the present suit - Suit of the plaintiff is barred by the principle of res-judicata - Suit of the plaintiff is also not maintainable under the provisions of The Coking coal Mines (Emergency Provisions) Ordinance 1971 and The Coking Coal Mines (Nationalisation) Act, 1972 - Appeal allowed against defendant Nos. 1 and 2 and the impugned judgment is set aside - Plaintiff is entitled to realise a sum of Rs. 1,37,347. 48 p. from defendant Nos. 1 and 2 jointly or severally along with interest at the contractual rate of 9% per annum from the date of filing of the suit till its realization - Plaintiff is not entitled to realise the said amount from the defendant No. 3 - Parties shall bear their own costs.
Fact of the Case:
Plaintiff-appellant had filed the said money suit for realisation of rs. 2,69,570. 63 paise along with pendente lite and future interest @ 12% per annum against the defendants -respondent on the basis of the Hundies detailed in Schedule A of the plaint.
Finding of the Court:
The plaintiff is entitled to realise a sum of Rs. 1,37,347. 48 p. from defendant Nos. 1 and 2 jointly or severally along with interest at the contractual rate of 9% per annum from the date of filing of the suit till its realization. However, the plaintiff is not entitled to realise the said amount from the defendant No. 3.
Issues: 1. Has the plaintiff any cause of action of the present suit? 2. Is the suit maintainable? 3. Is the suit barred by law of limitation? 4. Is the suit bad for misjoinder of parties? 5. Is the suit barred under the provisions of coal Mines (Nationalisation) Act,1971? 6. Is the suit barred under the provision of Bihar Money Lenders Act? 7. Is the plaintiff entitled to a decree asclaimed for? 8. To what relief or reliefs, if any, the plaintiff is entitled to?
Ratio Decidendi: 1. Forum under Section 23 of the said Act is an additional forum and it does not oust the jurisdiction of the Civil Court under the general law and the suit before the Civil court is maintainable and besides that liability of the erstwhile owner of a coal mine does not cease due to vesting of coal mines. 2. Right to recover the debt by the creditor has been created under the general law and not under the said Act. 3. The rule is that if a right is created under a statute, a person must seek relief before the forum created under that statute. 4. There is no such provision in the said Act. 5. Furthermore the Commissioner of Payments has no jurisdiction to direct or order the defendant no. l or its guarantor defendant No. 2 to make payment to the plaintiff No. 1 in respect of the claim which could not be satisfied as per its order. 6. The liability of the surety is coextensive with that of principal debtor unless it is provided by the contract to the contrary, and a creditor may proceed against the surety even if he may have relief against the principal debtor in some other proceedings and in any event the right conferred upon the plaintiff No. 1 as creditor in terms of the deed of guarantee cannot but be stated to be an independent right which stands recognized by the statutes and thus cannot in any manner be whittled down without a just cause. 7. The right of the plaintiff to recover money from defendant No. 2 who stood guarantor arises out of the terms of the deed of guarantee which is not in any way superseded or brought to a naught merely because the plaintiff may not be able to recover money from the principal borrower that is the managing agent of the coal mine. 8. It may here be added that evert as a result of the said Act, the liability of the principal borrower does not come to an end. 9. It is only the mode of recovery which is referred to in section 23 of the said Act.
Final Decision: Appeal allowed against defendant Nos. 1 and 2 and the impugned judgment is set aside - Plaintiff is entitled to realise a sum of Rs. 1,37,347. 48 p. from defendant Nos. 1 and 2 jointly or severally along with interest at the contractual rate of 9% per annum from the date of filing of the suit till its realization - Plaintiff is not entitled to realise the said amount from the defendant No. 3 - Parties shall bear their own costs.
VISHNUDEO NARAYAN, J.
( 1 ) THIS appeal at the instance of the plaintiffs appellant has been preferred against the impugned judgment and decree dated 21-6-1989 and 5-7-1989 respectively passed in money Suit No. 175 of 1974/52 of 1988 by sri Udaykant Thakur, 4th Subordinate judge, Dhanbad whereby and whereunder the suit of the plaintiffs-appellant was dismissed.
( 2 ) THE plaintiffs-appellant had filed the said money suit for realisation of rs. 2,69,570. 63 paise along with pendente lite and future interest @ 12% per annum against the defendants -respondent on the basis of the Hundies detailed in Schedule A of the plaint.
( 3 ) THE case of the plaintiffs-appellant (hereinafter referred to as the plaintiffs), in brief is that the plaintiffs are a partnership firm registered under the Indian Partnership act and also registered under the provisions of Section 4 of the Bihar Moneylenders act, 1938 and they carry on business as bankers, general merchants, and commission agents. It is alleged thatdefendant-respondent no. l was the managing agent of several companies detailed in paragraph 3 of the plaint and for the facilities of financing the business of all their companies, the defendant No. l had entered into financial arrangement with the plaintiffs on terms of business upon the basis of a letter of personal guarantee dated T2-9-1959 executed by Karam Chand Thaper, Son of Lala Mansa ram Thaper, the then managing director of defendant No. l. The said Karamachand thaper died on 29-3-1962 and after his death his son i. e. defendant No. 2 as managing director of defendant No. 1 with the sanction of the Board of Directors passed by a resolution of the Board of Directors in the meeting of the Board held on 28-12-1964 executed a deed of continuing guarantee on 4-1-1965 on terms and conditions mentioned therein and as per the terms of the said guarantee dated 4-1-1965 the plaintiffs were to advance to defendant No. 1 such sum of money as defendant No. 1 may from time to time require subject to the maximum total outstanding limit of Rs. 6,50,000/- only against Hundies after deducting discount @ ). 35 percent of the Hundi amount and the hundi shall be honoured by defendant No. 1 on their Calcutta office and if the same is honoured within 48 hours of presentation no interest will be payable in respect thereof and if the Hundi is honoured by defendant no. 1 within a week of presentation, interest shall be payable in respect of the Hundies not honoured within 48 hours @ 9% per annum from thedate of presentation to the date of the Hundi being honoured. It is alleged that in terms of the business between the plaintiffs and defendant Nos. 1 and 2 coming on from last several years, the plain2004 jhar. / 10 XII G 30 tiffs used to make weekly payment to collieries managed by defendant No. 1 to meet their weekly and monthly payments to worker against Hundi issued by the Central office, Bhowra payable by their head office at Calcutta and in course of the said business transaction the plaintiffs had made the cash payments to different collieries under the management of defendant No. 1 to the extent of Rs. 2,12,500/- against Hundies detailed in Schedule A of the plaint. The further case of the plaintiffs is that the Hundies detailed in Schedule A at the foot of the plaint were not retired by the defendant No. 1 on presentation and in spite of repeated demands the defendant Nos. 1 and 2 have not paid the amount due under the said hundies and defendant No. 2 as per the terms of the continuing guarantee given by him as per the document dated 4-1-1965 is also personally liable to pay the dues under the said Hundies. It is further alleged that the defendants have not retired the hundies concerned on the pretext that consequent upon the coming into force of the coking Coal Mines (Emergency provisions)ordinance, 1971 on 16-10-1971 their accounts with the bankers pertaining to coking coal mines stood frozen rendering them helpless in the matter of re
