Poonam Srivastav, J. - (1.) -The appeal is listed for admission. Learned counsels for the respective parties have agreed that the appeal may be decided finally since the record of the lower court is available.
(2.) HEARD Sri S. N. Verma, senior advocate assisted by Sri Sarad Malviya, counsel for the State Bank of India and Sri A. K. Singh, learned counsel for the plaintiff/respondents. This is defendant's second appeal against the judgment and decree dated 5.2.1999 passed by the District Judge, Deoria, in Civil Appeal No. 42 of 1998 arising out of Original Suit No. 49 of 1980, which was decreed in part by the trial court vide judgment and decree dated 6.1.1998. According to the plaint case, M/s. Jamuna Prasad Jaiswal and sons is a partnership firm. Certain goods such as metallic scraps were sold to M/s. Saraiya Sugar Mills Pvt. Ltd., which was also arrayed as defendant/ respondent. A sum of Rs. 1,00,000 (Rupees one lakh) towards the sale consideration of the aforesaid goods was issued by M/s. Saraiya Sugar Mills Pvt. Ltd. by means of the Bank draft dated 5.7.1977, being draft No. T.L./A.A.-080566 issued by the State Bank of India, Sardar Nagar, Gorakhpur. Firm M/s. Jamuna Prasad Jaiswal and sons presented the draft to its banker Allahabad Bank, Deoria, for collection. The draft was presented by the plaintiffs before the appellant Bank, which stopped the payment of the aforesaid amount of the Bank draft on the ground that signature of issuing officer was different and consequently the draft was returned to the collecting Bank, i.e., Allahabad Bank. This draft was presented once again for payment to the appellant Bank after verification of signature of the issuing officer but no payment was paid on the ground that firm Jamuna Prasad Munni Lal Jaiswal, which was a proprietorship firm, and Jamuna Prasad Jaiswal was proprietor, he had given an undertaking on behalf of the firm before this Court in F.A.F.O. No. 217 of 1977, Jamuna Prasad Jaiswal v. State Bank of India, arising out of another Suit No. 25 of 1977 contested with the State Bank of India. This undertaking was given on account of the reason that assets of the Firm Jamuna Prasad Munni Lal Jaiswal were attached before judgment in a previous Suit No. 25 of 1977. The order of attachment before the judgment was challenged in F.A.F.O. and since the property sold to M/s. Saraiya Sugar Mills Pvt. Ltd. was one of the assets belonging to the other firm, which was under attachment, therefore, the appellant Bank refused to make the payment. After return of the Bank draft for the second time on 16.7.1977, the present Original Suit No. 49 of 1980 for recovery of the draft amount to a tune of Rs. 1,00,000 and also interest on the aforesaid amount at the rate of 15% was instituted by the plaintiff/respondent. The written statement was filed and the stand taken by the appellant Bank was that firm Jamuna Prasad Munni Lal Jaiswal approached the Bank for grant of certain credit facility and the firm availed cash credit facility but failed to repay the Bank outstanding dues despite repeated request and reminder. A recovery suit was instituted by the State Bank of India, being Original Suit No. 25 of 1977, which was decreed vide judgment and decree dated 21.2.1998. The Bank moved an application for attachment of the property and assets of the firm before judgment, consequently assets of the firm was attached. An advocate commissioner was appointed for effecting service of the attachment order and for preparation of the inventory but the firm created hindrance and did not permit the advocate commissioner to complete his job. Due to obstruction created by the firm, a criminal proceedings was initiated under Section 340, Cr. P.C. The plaintiff's firm was established only to circumvent the order of attachment and thereafter goods were sold to Saraiya Sugar Mills Pvt. Ltd. regarding which draft of Rs. 1,00,000 was presented before the Bank and it is for the reason the Bank refused the payment.
(3.) AFTER exchange of pleadings in the Original Suit No. 49 of 1980, the trial court decreed the suit of the plaintiff/respondent in part vide judgment and decree dated 6.1.1998. The decree was to the effect that the amount payable towards bank draft, i.e., Rs. 1,00,000 shall be paid by the Bank to the plaintiff within a period of one month. The appellant filed an appeal against the judgment and decree in Civil Appeal No. 42 of 1998 before the District Judge and the plaintiff/ respondent also filed a Civil Appeal No. 56 of 1998 in respect of interest, which the trial court refused to decree. Both the appeals were consolidated and decided by a common judgment and decree dated 5.2.1999 by the District Judge, Deoria. Appeal filed by the plaintiff/ respondent was allowed for an amount of Rs. 1,43,500 along with 12% per year interest for the period during pendency of the suit and also future interest. The defendant/appellant was directed to deposit the entire amount within a period of one month, thereafter the plaintiff will be entitled for compound interest. Appeal filed by the appellant was dismissed.;