- (1.) This is a first appeal by the defendant Bank of Baroda against the judgment and decree of the Additional District Judge No. 2, Jaipur City, dated 11-9-69 in a suit for recovery of Rs. 10,491,63P. instituted by the plaintiff-respondent Krishna Ballabh. The others respondents Nos. 2 to 5 are the heirs of the deceased N.V. Vakhariya.
(2.) The undisputed facts of the case are these: N.V. Vakhariya, the husband of respondent-defendants no 2 and father of respondent-defendants Nos. 3 to 5 carried on business in the name and style of Messrs. Jam Chemical and Pharmaceutical Works in the City of Jaipur upto 28-6-61 on which date N.V. Vakhariya expared. During the relevant period he was the sole proprietor of 'he said business. On 39 7-60 he opened a Cash Credit Account with the Bark of Baroda Ltd., here in after referred to as the Bank, in the name of Messrs. Jam Chemical at Pharmaceutical Works and executed an agreement Ex.A/14 in favour of the Bank. By this agreement N.V. Vakhariya was to be given cash credit facilities by the Bank against the Security of goods to be pledged with the- Bank On 11-3-61 the value of the goods pledged with the Bank was Rs. 40,812/ and the amount drawn from the Bank by N.V. Vakhariya against the goods pledged was Ks 24,028/66P. Almost the same position continued in the Cash Credit. Account on 14-3-61, on which date N.V. Vakhariya and Krishna Ballabh plaintiff applied to the Bank for opening a Loan Account in the name of Messrs. Jem Chemical & Pharamiceutical Works on the security of F.D.R No 142576 dated 13-3-61 for Rs. 9,315/- standing in the name of Krishna Ballabh. The case of the Bank is that on the same day, that is, 14.3.61, a sum of Rs. 8,400/- was advanced to N.V. Vakhariya in the Loan Account. This fact is, however, denied by the plaintiff Krishna Ballabh. A prohibitory order dated 2-5-61 was received by the Bank on 3-5-61. This order was issued by the Court of Civil Judge, Jaipur City, in the execution case Jugalkishore and Ors. v. N.V. Vakhariya prohibiting the Bank until further orders from making payment to N.V. Vakhariya of the balance of the Current Account and what" ever amount remains after appropriation of the Bank loans to the Cash Credit Account from the proceeds of the goods kept in the Bank custody in security of the loans. N.V. Vakhariya thereafter deposited Rs. 14,500/- and Rs. 9,600/-on 19 5 61 and 24-5-61 respectively in the Cash Credit Account and thereby paid off the entire amount due to the Bank in the said account. On 24-5-61 he also got released all the goods pledged with the Bank. On 2-6-61 N.V. Vakhariya deposited Rs. 5,012/- which were credited in the Cash Credit Account. On 3-6-61 Rs. 5,000/- were transferred from the Cash Credit Account to the Sundry Deposit Account in pursuance of the prohibitory order dated 2-5 61. The Cash Credit Account was squared up and closed on 3-6-61. Or 13-3 62 the Bank issued a warrant in the form of a receipt for Rs. 773.10P showing adjustment of Rs. 8891.22 (Rs 8400/- plus interest thereon) to the Loan Account of N.V. Vakhariya out of the amouunt of the F.D.R. and showing a surplus of Rs. 773 10 to be received by the plaintiff. The plaintiff signed the said warrant and received the amount Rs. 773.10 on 13 3 62. After a period of more than a year on 29.8.63 plaintiff Krishnaballabh addressed a letter calling upon the Bank to pay him Rs. 5300/- approximately held by the Bank towards the prohibitory order dated 2-5-61. Again on 30-8-63, plaintiff Krishna Ballabh wrote another letter to the Bank bringing to its notice that it Wrongly represented to the court that a sum of Rs. 2325574P. only was outstanding against Messrs Jem Chemical & Pharmaceutical Works on 2 5 61 when in fact the dues of the Bank against the said firm amounted to Rs. 31,635.74P. (i. e. Rs. 23,255.74P. in the Cash Credit Account and Rs. 8,380/-. in the Loan Account of Messrs. Jem Chemical & Pharmaceutical Works) Krishna Ballabh further warned the Bank that "if any amount is vastest by the Bank on account of such mis-information by the Bank to the court or to any body, it will be the sole responsibility and at the risk of the Bank." The Bank, however, on 3-9-63, withdrew sum of Rs. 5,000/ from the Sundry Deposit Account and paid it to the court towards us prohibitory order dated 2-5-61. The plaintiff Krishna Ballabh thin instituted the present suit out of which this appeal has arisen on 13-3-65 for the recovery of Rs. 8891.22P deducted from the Fixed Deposit Receipt for Rs. 9,315/- and Rs. 1,600/41 by way of interest at the rate of 6% per annum-total Rs. 10,491,63P, on the grounds which are mentioned in para No. 9 of the plaint and are reproduced below: A. Because in pursuance of the term of the letter of 14-3-61 of the plaintiff for granting loan over-draft facility to said Shri N.V. Vakhariya, Proprietor of Messrs Jem Chemical and Pharmaceutical Works, Jaipur, defendant No. 1 the Bar k of Baroda Ltd., Jaipur, did not grant any loan actually to said Shri N.V. Vakhariya and there fore the Bank of Baroda Ltd. Jaipur, defendant no 1 could not deduct any amount whatsoever from the proceeds of the said Fixed Deposit Receipt No 142676 for Rs. 9315/-. B. Because on 2nd June, 1261 the defendant no 1 the Bank of Baroda Ltd. Jaipur owed a sum of Rs. 31,645.74P plus interest etc that may have accrued thereon up till that date but the Bank of Baroda Ltd., Jaipur, defendant No 1 released the total goods on the security of which the said defendant No 1 the Bank of Baroda Ltd. had advanced the sum of Rs. 31,645.74np on accepting a lesser payment of Rs. 28,512/- only without any reference to "the plaintiff and thereby by its act and omission the security of the Fixed Deposit Receipt No 142576 for Rs. 9315/-Was discharged under law. Moreso, because the plaintiff was entitled to the bene6t of every security which the creditor vi2. defendant no 1 the Bank of Baroda Ltd. Jaipur had against the principal debtor Mr. N.V. Vakbarta at the time contract of surety was entered into with the said Bank of Baroda Ltd. Jaipur, defendant No 1. C. Because in case the plaintiff's contentions mentioned in sub-paras A and B above may not be held to be tenable in law, the plaintiff's said Fixed Deposit Receipt No 142676 for Rs. 9315/. Can only be held liable for payment to the extent of the difference of the loan received from said Shri N.V. Vakhariya. The plaintiff, in the alternative, prayed for a decree of Rs. 5,l5650P.'agairist the Bank on the ground that although this amount was lying in deposit with the Bank the same was not paid to him nor it was credited in the Loan Account outstanding against M/s. Jem Chemical & Pharmoceutical Works The plaintiff further prayed in the alternative that in case the decree is not passed against the Bank the suit be decreed against defendants Nos. 2 to 5 In the plaint the plaintiff besides impleading the Bank and the heirs of deceased N.V. Vakhariya, also arrayed as defendants the decree-holders in the execution case in which the prohibitory order dated 2 5-61 was passed. The suit was contested by all the defendants who traversed the allegations made in the plaint. The important findings allived at by the learned Additional District Judge and which are relevant for the disposal of this appeal may now be stated as under: 1. No loan whatsoever was advanced to N.V. Vakhariya against the plaintiff's Fixed Deposit Receipt for Rs. 9315/-. The transfer of Rs. 8891.22P out of the plaintiff's F.D.R. for Rs. 9315/- was therefore unwarranted. 2 The Cash Credit Account and the Loan Account were two separate accounts in the name of Messrs Jem Chemical and Pharmaceutical Works but that did not mean that it was not open to the Bank to recover its dues outstanding against its debtor under some particular account from his other account if the Bank in its wisdom thought proper to do so.
(3.) When the prohibitory order dated 2-5-61 was received by the Bank on 3 5.61 the amount due to the Bank in the Cash Credit Account and the Loan Account was Rs. 31,530/-, and the goods pledged with the Bank were of the value of Rs. 39,000/- against which the drawing power of N.V. Vakhariya was about Rs. 29,000/-. The Bank therefore should have intimated to the court in answer to the prohibitory order dated 2-5-61 that no amount was due to N.V. Vakhariya from the Bank. The Bank was not legally justified in sending Rs. 5000/- to the court in pursuance of the prohibitory order dated 2-5-61.;