1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 889 OF 2009 IN SUIT NO. 1031 OF 1998 Maharashtra Apex Corporation Ltd .. Plaintiffs Vs Central Bank of India & Ors .. Defendants Mr. S.P. Bharti for the Plaintiffs None for the Defendants CORAM : DR. D.Y. CHANDRACHUD, J DATE : 17th APRIL, 2009. P.C.: 1. The Plaintiff is a non-banking financial company. According to the Plaintiff, an Inter Corporate Deposit of Rs. 25 Lacs was granted to Chemox Chemical Industries Limited which is in liquidation. The liquidator has been impleaded as the 2nd Defendant upon leave being granted under Section 446 of the Companies Act, 1956. The case of the Plaintiff is that the 2nd Defendant issued a cheque dated 06th January, 1998 in favour of the Plaintiff for an amount of Rs. 25 lacs drawn on the British Rma NMS88909200409.sxw 2 Bank of Middle East in order to discharge the liability but the cheque was dishonored. According to the Plaintiff, when the 2nd Defendant requested a further facility, the Plaintiff made it clear that this request would be considered only after the existing liability was discharged. The 2nd Defendant is alleged to have purchased a banker's cheque dated 19th January 1998 bearing No. 357977 in the name of the Plaintiffs from the 1st Defendant. The cheque is alleged to have been delivered by an officer of the 2nd Defendant by the name of Prakash Jain to the Plaintiff. The officer of the 2nd Defendant is alleged to have desired the grant of a further facility to which the Plaintiff expressed its inability unless the Head Office granted its approval. 2. It is alleged in the plaint that when the concerned officer who was dealing with Prakash Jain was called by the Regional Manager and the officer went to meet him, the Representative of the 2nd Defendant took away the banker's cheque and presented it on 23rd January, 1998 for cancellation. On these facts, the suit came to be instituted for seeking a declaration that the Plaintiff is Rma NMS88909200409.sxw 3 the owner and holder of the aforesaid banker's cheque No. 357977 dated 19.01.1998; for a mandatory order to the 2nd Defendant to return the cheque or, in the alternative, to the 1st Defendant to pay an amount of Rs. 25 Lacs due thereon. 3. A Notice of Motion was taken out for interim reliefs. At the ad-interim stage on 07.03.1998, an order was passed by Mr. Justice R.M. Lodha ( as the learned Judge then was). The order of the Court referred to the aforesaid facts and noted that counsel appearing on behalf of the 2nd Defendant / Company had admitted the grant of an Inter Corporate Deposit by the Plaintiff of Rs. 25 Lakhs for 90 days and that the liability was to be discharged on 5th January, 1998. The Court also recorded the admission of the Company that the cheque dated 06th January, 1998 for Rs.25 Lacs which was issued by the Company which dishonored. However, the contention of the 2nd Defendant was that the banker's cheque for Rs. 25 Lacs was purchased by the 2nd Defendant not for discharging the existing liability but for the grant of a further facility. Hence, it was urged that since the Rma NMS88909200409.sxw 4 further facility was not granted by the Plaintiff, the banker's cheque was lodged with the 1st Defendant for cancellation. 4. On these facts, an ad-interim order was granted in terms of prayer clause (a) of the Notice of Motion restraining the 1st Defendant (Central Bank) from canceling banker's cheque No. 357977 dated 19th January, 1998. When the Notice of Motion came up for final hearing on 25th November, 2008, Counsel for the Plaintiff stated before the Court that the Company had been wound up and the Plaintiff was desirous to amend the plaint so as to bring the Official Liquidator on record with the permission of the Company Court under Section 446 of the Companies Act 1956. The Motion was allowed to be withdrawn with liberty to file a fresh Motion after the plaint was amended. In the meantime, the ad-interim order dated 07th March, 1998 was continued for a period of 8 weeks. On 11th December, 2008, the ad-interim order was extended for a further period of three months. Accordingly, the plaint has been amended and the Official Liquidator has been brought on the record. On 13th Rma NMS88909200409.sxw 5 March, 1998, the Notice of Motion was made returnable and the ad-interim order dated 07th March, 1998 was continued until further orders. 5. The Motion has been taken up for final hearing. A notice has been furnished to the Official Liquidator who has not remained present. The facts relating to the case have been elaborately discussed in the ad interim order passed by this Court on 07th March, 1998 in the earlier Motion. A prima facie case has been made out for the grant of ad interim relief pending the hearing and final disposal of the suit. It has been admitted by the Company, when the earlier Notice of Motion came up for hearing, that the Plaintiff had furnished an Inter Corporate Deposit of Rs. 25 Lacs which was to be repaid on 05th January, and that the bankers cheque which was issued towards repayment was dishonored. The defense that the bankers cheque was not towards the repayment of the earlier liability but for executing a fresh transaction is one which would have to be proved at the trial, on evidence. At this stage, the case of the Rma NMS88909200409.sxw 6 Plaintiff cannot be brushed aside particularly in view of the admitted position that an Inter Corporate Deposit was extended by the Plaintiff which remained to be paid. 7. The relief that has been sought for directing the 1st Defendant to pay the amount of Rs. 25 Lacs to the Plaintiff cannot be granted. That would amount to the grant of final relief in the suit. The Motion is made absolute in terms of prayer clause (a) which reads as follows: “That pending the hearing and final disposal of the suit, this Hon'ble Court be pleased to pass an order and injunction restraining the 1st Defendant, their servants, and agents from cancelling the said Banker's cheque No. 357977 dated 19th January, 1998 being Exhibit C to the plaint” The 1st Defendant is however directed to invest the amount of the banker's cheque bearing No. 357977 dated 19th January, 1998 in a Fixed Deposit of the 1st Defendant itself. The amount including the agreed interest shall abide by the result of the suit. The amount shall be invested in the name of the Prothonotary Rma NMS88909200409.sxw 7 and Senior Master of this Court and shall be marked towards the account of Suit No. 1031 of 1998. The Notice of Motion is accordingly disposed of. 8. The time limit that has been granted to the Plaintiff by the order of the Learned Single Judge dated 21st March, 2009 to file the original documents and an affidavit in lieu of examination-in- chief is extended till by 15th June, 2009. The Registry shall post the suit for directions on 22nd June, 2009. (DR. D.Y. CHANDRACHUD, J) Rma NMS88909200409.sxw 8 Rma NMS88909200409.sxw