RSA No.4160 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4160 of 2008(O&M) Date of Decision:29.01.2009 Punjab National Bank ....appellant Versus Kanshi Ram .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.H.R.Bansal,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent has been decreed and the defendant-appellant has been directed to make the payment of Rs.20,000/- along with interest @ 6% per annum from 06.12.1997 till realization. The case set up by the plaintiff, in the plaint,is that he is a account holder of saving Account No. SB-5889 with the defendant-Bank. On 01.12.1997, he submitted a Bank draft for Rs. 20,000/- drawn at Bank Commerce (M) Berped (13491-P) Petaling Jaya, Sutangan Bank of Masuda, New Delhi, to the defendant-Bank for the transfer of the said amount of Rs.20,000/- in his account. The plaintiff was assured that the amount will be transferred in his account after some time. The plaintiff has further pleaded that he had been visiting the branch of the bank since 01.12.97 but they are putting off the matter on one pretext or the other. The plaintiff also served legal notice dated 20.10.2000 but the defendant did not care for the notice. The plaintiff has also pleaded that even after RSA No.4160 of 2008 2 the service of notice, he again visited the defendant-Bank a number of times but nothing was told by the bank about the Draft and finally they have refused to tell about the Draft of the plaintiff. The suit was contested by the appellant-bank by taking preliminary objections that the suit is not maintainable against the defendant; the suit is not maintainable in the present form; the plaintiff has no cause of action; the suit is bad for non-joinder of necessary parties. It has been admitted that the plaintiff deposited the draft for collection on the prescribed form and the Bank dispatched the same for collection vide letter No. 356 dated 08.12.1997 and the amount has not been received by the Bank from the Bank of Madura Ltd., New Delhi. It has also been averred that as per the terms and conditions, the Bank is not liable to make the payment. It has been denied that any assurance was given by the Branch Manager. It has also been averred that the Bank sent the draft for collection as per procedure and as and when the amount is received from the Bank of Madura, New Delhi, it was to be credited to the account of the plaintiff. The legal notice dated 20.10.2000 sent by the plaintiff to the Bank has also been admitted. After going through the pleadings and evidence led by the parties the trial Court decreed the suit of the plaintiff-respondent. Feeling aggrieved thereby, the defendants filed an appeal which was dismissed by the Additional District Judge(Ad hoc), Patiala vide impugned judgment and decree dated 01.08.2008. Still not satisfied, the defendant-bank has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have erred at law while deciding the suit in favour of the plaintiff-respondent as suit for mandatory injunction for recovery of the amount claimed by the plaintiff is not maintainable and in fact the plaintiff- RSA No.4160 of 2008 3 bank could maintain and file a suit for recovery only against the appellant- bank. There is a specific bar under Section 41 (h) of the Specific Relief Act and thus following substantial question of law arises in this appeal: 1. Whether the plaintiff is entitled to mandatory injunction and the suit is not maintainable? Therefore, the judgment and decrees of the Courts below are liable to be set aside and suit of the plaintiff-respondent is liable to be dismissed. I have heard learned counsel for the appellant. However, I find no force in the contentions raised by him. From the evidence on record, the loss of draft of Rs.20,000/- is admitted by the appellant. It is also admitted that the said draft was entered by the appellant-bank as per receipt Ex.P-1. Once the loss is admitted the argument that the bank was not responsible about the loss of draft for collection is not tenable. Therefore, the suit for mandatory injunction is maintainable and plea of efficacious remedy by way of suit of recovery is not tenable in view of the Supreme Court judgment cited as Sunil Kumar and others versus Ram Parkash and others AIR 1988 Supreme Court 576. Reliance has also been placed on State of Haryana vs.Dr.Prem Singh Mann CXIV(1996-3) PLR 799. This judgment cited by the learned counsel for the appellant is distinguishable in the facts and circumstances of the case. Moreover, from the record it is found that the plaintiff has affixed a court fee of Rs.2393/- on the plaint i.e.ad valorem court fee. Therefore, the plaintiff- appellant cannot be non-suited on this ground. No substantial question of law arises in this appeal. Finding no merit in this appeal the same is dismissed. (RAKESH KUMAR GARG) JUDGE RSA No.4160 of 2008 4 29.01.2009 neenu