Novapharm Life Sciences Pvt. Ltd. & Ors. v. Sanjesh Darbari

1. This is a regular second appeal filed under Section 100 read with Order 41 & 42 and 151 CPC against the judgment dated 16.8.2012 passed by the learned Additional District Judge dismissing the appeal being R.C.A. No.4/2011 titled M/s. Novapharm Life Sciences Pvt. Ltd. & Others vs. Sanjesh Darbari.

2. Briefly stated the facts of the case are that the plaintiff/respondent herein filed a suit bearing No.14/2008 against M/s. Novapharm Life Sciences Pvt. Ltd. and its two Directors for recovery of `2,46,746/- along with interest @ 18 per cent per annum and costs. 2013:DHC:2663

3. The case which was set up by the plaintiff/respondent was that he had stood surety for overdraft limit to a bank account of the defendant/appellant company. It was stated that while standing surety, the bankers of the defendant/appellant company, namely, Bank of Punjab, Rajouri Garden Branch, New Delhi, had asked the plaintiff/respondent to create Fixed Deposits to the tune of `17 lacs in currency of U.S. Dollars and keep the said Fixed Deposits Receipts with the Bank as security for the grant of overdraft limit was granted to the defendants/appellants. The overdraft limit of the defendant/appellant company was operated by defendant/appellant Nos.[2] and 3. It is stated that the defendants/appellants had subsequent thereto closed the overdraft limit and before this, the plaintiff/respondent had sought his discharge from the surety of the defendants/appellants as he was in need of money. It is stated that when the plaintiff/respondent had approached the defendants/appellants from his being discharged from the surety, the defendants/appellants initially kept on postponing and ultimately closed the overdraft limit. The plaintiff/respondent at the time of settling the account with the Bank, came to know that an amount of `2,46,746/- had been deducted from his fixed deposit on account of the overdraft limit availed of by the defendants/appellants, which was not settled by them and accordingly, the suit for recovery of the aforesaid amount along with interest @ 18 per cent per annum was filed.

4. The defendants/appellants filed their written statement and contested the claim. The main question which was raised by the defendants/appellants in the written statement was that there was no privity of contract. After completion of the pleadings, the plaintiff/respondent filed an application under Order XII Rule 6 CPC for passing the judgment on the basis of admission. The arguments were heard on the application and the learned trial court came to the conclusion that there was an admission purported to have been made by the defendants/appellants that the amount of `2,46,746/- was deducted from the fixed deposit of the plaintiff/respondent on account of overdraft limit having not being settled by them with the Bank of Punjab in question. So far as the plea of privity of contract is concerned, the learned trial court observed that there was no absence of privity of contract for the simple reason that it is not disputed by the plaintiff/respondent that he had appeared and furnished surety by way of fixed deposit for availing of overdraft facility by the defendant/appellant No.1 company and its two Directors, who were operating the account. Therefore, this plea of absence of privity of contract was discarded by the court and a decree for the aforesaid amount along with interest was passed by the trial court against the defendants/appellants and in favour of the plaintiff/respondent on 24.1.2011.

5. The appellants feeling aggrieved by the judgment and decree passed for a sum of `2,46,746/- along with interest @ 18 per cent per annum, preferred the first appeal being R.C.A. No.4/2011 which was also dismissed by the appellate court vide order dated 16.8.2012.

6. Still not feeling satisfied, the present regular second appeal has been filed.

7. I have heard the learned counsel for the appellants and have also gone through the record. The main contention of the learned counsel for the appellants is that there is no privity of contract between the appellants and the respondent and accordingly, no judgment on the basis of admission could have been passed by the learned Judge without permitting the appellants herein to adduce evidence with regard to proof of absence of privity of contract. Accordingly, it is stated that the decree in law is not sustainable. I have considered this submission made by the learned counsel for the appellants. So far as the question of absence of privity of contract between the appellants and the respondent is concerned, this plea has already been rejected by the learned trial court and affirmed by the appellate court holding that the matter could not be dismissed for want of privity of contract. On the contrary, the very fact that the appellants have admitted that the overdraft facility was availed by them in respect of which the respondent stood surety/guarantee by furnishing fixed deposit, clearly shows that there was a privity of contract though no formal document in this regard had been drawn. This being the question of fact and their being a concurrent finding in this regard, I do not think that this can be assailed by the appellants by way of present appeal. Other than this, no other question has been shown to be arising from the present appeal much less the ‘substantial’ question of law.

8. For these reasons, I feel that the regular second appeal does not involve any substantial question of law and accordingly, the appeal is dismissed. V.K. SHALI, J. MAY 21, 2013 ‘AA’