Decided on July 03,2006



K.J.Paratwar, - (1.) THIS is an application for recovery from defendant Nos. 1/2 of Rs. 2,01,38,567.06 with interest @ 18% p.a. from the date of filing the Original Application till full realisation. From out of aforesaid amount, the sums lying with defendant Nos. 3 to 7 on account of defendant Nos. 1/2, 4 and Nos. 8 to 10 are sought to be recovered.
(2.) On 26.12.2000, the applicant's predecessor (ICICI Bank Ltd.), on request by defendant Nos. 1/2, (defendant No. 2 being proprietor of defendant No. 1) had discounted 14 Hundis aggregating Rs. 1,35,71,440/- drawn on and accepted by Hindustan Lever Ltd. (HLL). The applicant disbursed Rs. 1,31,62,140.25 by sending the money by cheque to defendant No. 3 for crediting in the account of defendant No. 1. On the next date (27.12.2000) when the applicant contacted HLL, it was shocked to learn that defendant Nos. 1/2 had not made any supplies to HLL nor any Hundis were drawn chless accepted by HLL. Thus, the documents submitted by defendant Nos. 1/2 were forged and fabricated upon which the Bank filed FIR which is registered in Kherwadi Police Station as Case No. 452 of 2000. During the investigation, it was revealed that defendant Nos. 1/2 had issued 9 pay orders of varied amounts to different parties from amongst the monies paid issued by the applicant by discounting the bills. Some monies arc still lying in the account of defendant Nos. 1/2. Sr. Inspector of Police, Kherwadi Police Station issued order dated 28.12.2000 under Section 102 of Cr.P.C. to defendant Nos. 3 to 7 to stop payment. The applicant also filed an Application No. 15/N/2001 before the Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai under Section 457 of Cr.P.C. seeking return of the monies. The Bank's case is that it is entitled to the monies traced in the investigation since the money was released on misrepresentation, and fraud played by defendant Nos. 1/2. In view of the above, the Bank called upon defendant Nos. 1/2 to make payment but failed. Therefore this O.A. for recovery of amount, as above.
(3.) THE defendant No. 3 in written statement (Exh. 119) has contended that the defendant Nos. 1/2 has Banking relations with it since 19.3.1997 and had as such credited the cheque dated 26.12.2000 for Rs. 1,31,62,140.25 issued by the applicant in its favour, THE said cheque was cleared on the same date. On the next date (27.12.2000), following 9 pay orders were issued by it (defendant No. 3) at the request of defendant No. 1. JUDGEMENT_772_TLDR0_20060.htm On that date, the defendant No. 1 also withdrew sum in excess of Rs. 14 lakh by 3 self drawn cheques. Now a sum in excess of Rs. 28 lakh is lying in the account. THEreafter, the Bank has frozen the account as per the order of Sr. Inspector of Police. THE prayer for interest @ 18% p.a. is strongly opposed on the ground that the money lies in the account and is not utilised and has not as such earned any interest.;

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