high court form no. 2 - dibrugarh district judiciary

of 24Money Suit 05 of 2015

High Court Form No. 2

Heading of Judgment in original suit

IN THE COURT OF THE CIVIL JUDGE AT DIBRUGARH

District - Dibrugarh

Present : Smti. Rashmita Das, (AJS)

Civil Judge, Dibrugarh

Money Suit No. 05 of 2015

Wednesday, the 11th day of March, 2020

Sri Chandan Mazumdar

Son of Late Khetra Mazumdar

Resident of Tarun Samity Lane, Shantipara

P.S & District- Dibrugarh, Assam.

...……PLAINTIFF

-Vs-

1. Sri Binay Kumar SinhaFather’s name not known to the plaintifChief Manager, Allahabad BankH.S.Road (Main) Branch, DibrugarhP.S. and District- Dibrugarh, Assam.


2. Allahabad Bank, a body corporate,Carrying business of banking throughout India

through its diferent branches, including the

Branch of H.S.Road (commonly called Dibrugarh

Main Branch), having its Head Office at 2, Netaji

Subhash Road, Kolkata-700 001

……..DEFENDANTS

This suit coming on for final hearing on this the 11th

day of February, 2020 in presence of :

Advocate for the plaintif : Mr. D. Roy

For the defendants : Mr. P. P. Sen Sharma

And having stood for consideration on this 11th day of March,

2020, this Court delivered the following judgment.

J U D G M E N T

1. The case of the plaintif in brief is that, he is a business

man doing business of letting out electric power supply

through Generator set to diferent organizations for

running their offices for load shedding during working

hours.

2. That the defendant No. 2 is a body corporate having its

Head Office at 2, Netaji Subhash Road, Kolkata 700

001, running banking business throughout India

through its diferent branches including the branch at


H.S. Road (Main) Branch Dibrugarh, Assam. The

defendant No. 1 is the Chief Manager of Allahabad

Bank of the defendant No.2, a person responsible for

the afairs of the above said branch of the defendant

No. 2.

3. That the plaintif is providing the above service of

letting out Generator to diferent Banks and other

organizations for more than last two decades to the

utmost satisfaction of the customers.

4. For last than one decade the plaintif is providing

Generator set on rent to the branch at H.S. Road

(main) Branch, Dibrugarh of the defendant No. 2

Allahabad Bank under three yearly contracts. The

original agreements were retained by the Bank for

their record and Photostat copies of the agreements

were furnished to the plaintif all the while, even after

entering into new contract or on renewal of the same.

5. That the plaintif uses to keep the Generator in a

diferent premises and connect the branch premises of

the defendant No. 2 through his service lines by a

Change over installed inside the branch premises

under absolute control and domain of the defendant

No. 1.

6. That defendant No. 1 himself executed the agreement

on 15.03.2013 for letting out the Generator set w.e.f

01.03.2013 to 28.02.2016 in favour of the plaintif for

the aforesaid purpose at a monthly rent of Rs. 15,000/-

only.


7. The plaintif also contended that previously during

continuance of the agreement for letting out the

Generator set which was executed on 01.02.2011 for

the period from 01.02.2011 to 31.01.14 at the request

of the plaintif due to hike in the price of diesel the rent

was increased accordingly even before expiry of the

running agreement as usual as Bank did from time to

time. So the plaintif made written request on

10.04.2014 and 10.06.2014 to increase monthly rent,

due to overall hike in price of diesel and other charges

which was accepted by the defendant No. 1 and he

assured to increase the rent but took no step in that

regard. The plaintif hence vide his letter dated dated

31.07.2014 informed the fact to the defendant No. 1

that unless rent is increased the Generator power

supply by him to the branch of the defendant No. 2

would not be continued after 31.08.2014 due to heavy

losses already sufered by him.

8. The monthly rent of Generator was adjusted by way of

crediting in two loan accounts of the plaintif being

50072125526 and 50028222613 in the same branch

under the control of the defendant No. 1. The plaintif

has a Savings Account too in the same Branch. In the

month of September, 2014 the plaintif found that the

loan instalments were deducted from his savings

Account No. 20695046397 dishonestly without prior

intimation illegally and wrongfully by the defendant

No. 1 as lying in the Branch under his control without


the knowledge and consent of the plaintif causing

wrongful losses to him.

9. On enquiry made by the plaintif he came to know that

on receipt of letter dated 31.07.2014 the defendant

No. 1 as lying in the branch under the control without

knowledge and consent the branch premises of

H.S.Road (Main) Branch, Allahabad Bank, Dibrugarh

under custody of the defendant No. 1 and entered into

a separate agreement with other person for letting out

the Generator Power supply w.e.f. 01.08.201 at a

monthly rent of 24,000/- causing wrongful losses to the

plaintif.

10. The plaintif served Advocate’s Notice to the defendant

No.1 and in reply thereof the defendant No. 1 through

his Advocate stated that the allegation made by the

plaintif has brought with malafide intention and

motive by the plaintif.

11. The plaintif after receiving the lawyer’s notice filed a

complaint case which was transferred to the Court of

J.M 1st class, Dibrugarh for trial who sent the complaint

to the Dibrugarh P.S to register a case and to submit

report and the complaint of the plaintif was registered

as Dibrugarh P.S. Case No. 853/14 (G.R. 2737/14 u/s

379/406/34 I.P.C.)

12. Thereafter the plaintif received a letter from the

Branch of the defendant No. 1 showing therein that the

loan accounts became overdue from September, 2014


due to the wrongful acts of the defendant No. 1.

Hence, the plaintif is entitled to claim an amount of

Rs. 3,00,000/- being the financial loss he is to sustain

due to violation of the terms of agreement dated

15.03.2013 before its expiry by the defendant No. 1

and a compensation of 2,00,000/- on account of

mental shock and agony he sufered and being

humiliated in the public at large and also entitled to

other reliefs to law under the circumstances.

13. The plaintif therefore files this suit praying for passing

decree against the defendants with the following

reliefs-

a) Recovery of Rs. 3,00,000/- being the financial

losses on account of rent due to one sided

premium termination of agreement illegally,

b) Recovery of 2,00,000/- being the compensation

on account of mental shock and agony he

sufered and being humiliated in the public at

large due to one sided premium termination of

agreement illegally.

c) Interest pendent lite at the rate of 18% on the

claimed amount from the date of filing the suit till

recovery.

d) All costs of the suit.

e) Any other or further reliefs to which the plaintif is

found entitled to in law and equity.


14. The defendants filed their written statement stating

therein that -

The suit filed by the plaintif is not maintainable. The

plaintif has no, title or cause of action to institute the

instant suit. The suit is void ab-initio, inoperative in law

and liable to be dismissed. Suit is bad for non-joinder

and misjoinder of parties. The suit is bad in view of the

doctrines of waiver, acquiescence, estoppel and res-

judicata and bad due to the multifarious cause of

action. From the very beginning the plaintif had

provided a very unsatisfactory service and the service

of the generator set was defective with variation of

voltage/serge, which caused damage to the computer

service of the bank, viz. Crash of server, damage of

UPS, crash of four Nos. of computer system and the

bank had to sufer irreparable loss of reputation

providing service to their valued customer besides

monetary losses. As agreed upon, the plaintif was

entitled to receive the generator rent @ Rs. 15,000/-

per month and accordingly it was paid to his two nos.

of loan accounts bearing Nos. 50072125526 and

50028222613 at the rate of Rs. 7,000/- and Rs. 8,000/-

respectively per month for service of generator set for

supplying electricity during load shedding till July,

2014. As per instruction of the plaintif, the rent was

deposited in his two Nos. of loan account and the last

rent was paid on 04.08.2014 for the month of July,

2014. Though as per clause (9) of the agreement


dated 15.03.2013 (Plaintif document No.11) the

plaintif was bound to execute the agreement for the

entire agreed period without any default but soon after

execution of the said agreement, he had placed his

demand to increase the monthly rent to an exorbitant

rate from Rs. 15,000/- to Rs. 24,000/- and claimed

accordingly vide his letter dated 10.04.2014 (Plaintif's

document No.12) which is beyond the agreed terms

and conditions. The plaintif submitted the documents,

being No. 1 to 7 are very much irrelevant in the

present suit. The leases of generator set elsewhere in

diferent organizations are subject matter of the

respective firm/ organization only and not related in

any way with the present case. Even then, if these take

under consideration for debate, then these documents

itself prove that the demand of plaintif to increase the

monthly rent just after execution of the agreement was

illegal, arbitrary and not accordance to the law and

also proves, the rent provided by the defendant bank

was much higher then to others, considering the loads

etc. The plaintif served a notice on 31.07.2014

(plaintif document No. 14), to defendant bank,

wherein it was categorically mentioned that he would

discontinue the supply the generator power with

immediate efect if the rent was not increased as per

his demand. The whole episodes on the part of the

plaintif were illegal and violate the agreed terms &

conditions of the agreement dated 15.03.2013. Finding


no other way, the defendant bank had to arrange

substitute means to smooth running of their banking

business which caused heavy financial loss to the bank

and for that the plaintif is solely liable for such loss

and also for the harassment & mental agony caused to

the bank officials of the defendants. As per loan

documents executed by the plaintif in favour of the

defendant No.2, the bank is at liberty to deduct any

overdue amount, adjust securities etc. with the dues of

loan amount, if the installments are not paid regularly

in time, as agreed upon. The plaintif willfully with

some ulterior motive discontinued the service of

generator from 01.08.2014 by serving a notice on

31.07.2014 (plaintif's document No.14), even without

giving a single day time, which was illegal, void and

ab-initio in the eye of law and violation the very terms

and conditions of the said agreement. As the

defendant No.2, have to continue their business here

at Dibrugarh, so they had no other alternative but to

hire service of generator set for supplying electricity

during load shading from any other sources due to

certain discontinue of electricity power by the plaintif

illegally.

Accordingly, the defendants prayed that the suit

is liable to be dismissed with compensatory cost.


15. On the pleadings of the parties and hearing the

learned counsel for the parties, the following issues

have been framed:

1. Whether the suit is maintainable in law and

facts ?

2. Whether there is cause of action for the

suit?

3. Whether the defendants terminated the

existing agreement with the plaintiff in

letting out the Generators ?

4. Whether the plaintiff suffered any damages

for such termination ?

5. Whether the plaintiff is entitled to relief

claimed for ?

6. To what relief/s the parties are entitled to ?

16. In support of the case, the plaintif has adduced the

evidence of one P.W and exhibited certain documents

such as :-

P.W.1 : Sri Chandan Mazumdar

Plaintiff’s documents :

Exts. 1 to 5 : Appreciation Certificates of the

defendant’s bank as well as other

organizations


Ext.6 : Copy of agreement with the defendant Bank

commencing from 01.03.2013 to 28.02.2016.

Ext.7 : Copy of previous agreement with the

defendant Bank commencing from 01.02.2011

to 28.02.2014.

Ext.8 and 9 : Request letters of the plaintif to increase

the monthly rent.

Ext.10 : Letter of the plaintif informing the defendant

No. 1 that unless the rent is increased,

Generator power supply would be stopped

after 31.08.2014 due to heavy losses already

sufered by the plaintif.

Ext.11 : Statement of Account of Loan A/C No.

50028222613.


5002125526.

Ext.13 : Loan clearance certificate.

Ext.14 : Saving Bank Pass Book No. 20695046397.

Ext.15 : Advocate’s notice

Ext.16, 17 and 18 : Postal receipts.

Ext.19, 20 and 21 : A/D cards.

Ext.22 : Defendant’s reply.

Ext.23 : Copy of complaint given by the plaintif

against the defendants.

Ext.24 : Copy of letter of defendant No. 2 through

defendant No. 1.


17. DISCUSSION, DECISIONS & REASON THEREOF: I

have heard learned counsel appearing for both the

parties. Also perused the records. Upon hearing the

learned counsel for the parties and on perusal of the

record, I am of the considered view to hold as follows

issue wise :

18. Issue No. 1 : Whether the suit is maintainable in

law and facts ?

Regarding non maintainability of the suit the

defendants have stated in their Written Statement that

the suit is not maintainable in law and facts. It is the

burden of the defendants to prove on what ground the

suit is not maintainable.

19. So, mere mentioning in the W/S that the suit is not

maintainable will not be sufficient to hold that this

issue goes in the negative. As such, this issue is

decided in favour of the plaintif.

20. Issue No. 2 : Whether there is any cause of

action for the suit ?

“Cause of action” means…

In Blacks’ Law Dictionary Phrase- cause ofaction is defined as- expression of cause of action isgenuinely understood to mean a situation or state offacts that entitles a party to maintain an action in acourt or Tribunal; a group of operative facts giving riseto one or more bases of suing; factual situation thatentitles one person to obtain a remedy in the court


from another person.Hon’ble Apex court in Bloom Bekar Limited

–vs.- Subhash Himmatlal Desai and others 19946 SCC 322 stating that “by cause of action it ismeant every fact, which, If traversed it would benecessary for the plaintiff to prove in order tosupport his right to a judgment of the court”

In other words, bundle of facts which it isnecessary for the plaintif to prove in order to succeedin the suit.

In Rajasthan High Court AdvocateAssociation –vs.- Union of India and others,2001(2) SCC 294, it has been held by the Hon’bleApex Court that-

“expression of cause of action has acquireda judicially settled meaning. In a restrictedsense cause of action means the circumstancesforming the infraction of the right or immediateoccasion for the reaction and in the wider sense,it means necessary condition for themaintenance of the suit including not onlyinfraction of right but also inflation coupled withright itself.

Compenditiously, as noted above,theexpression means a brief fact which it would benecessary for the plaintiff to prove, if traversed,in order to support his right to the judgment ofthe court. Every fact which is necessary to beproved, as distinguishes from every piece ofevidence, which is necessary to prove its fact,comprises in the cause of action”

21. Cause of action amongst others, briefly indicates a fact

or bundle of facts constituting a right to a person to

ventilate his grievances before an appropriate Court of

law seeking redress thereof. It also implies a disputed


fact which requires an interference and adjudication by

a court of law.

22. After going through the entire pleadings of the plaintif,

it appears that the Plaintif has contended in the plaint

that the plaintif is providing the above service of

letting out Generator to diferent Banks and other

organizations for more than last two decades to the

utmost satisfaction of the customers and the plaintif is

also providing Generator set on rent to its branch at

H.S. Road (Main) Branch, Dibrugarh of the defendant

No. 2 Allahabad Bank under three yearly contract. The

original agreements were retained by the Bank for

their record and Photostat copies of the agreements

were furnished to the plaintif all the while, even after

entering into new contract or on renewal of the same.

The plaintif uses to keep the Generator in a diferent

premises and connect the branch premises of the

defendant No. 2 through his service lines by a Change

over installed inside the branch premises under

absolute control and domain of the defendant No. 1.

That defendant No.1 himself executed the agreement

on 15.03.13 for letting out the Generator set w.e.f 01-

03-13 to 28.02.2016 in favour of the plaintif for the

aforesaid purpose at a monthly rent of Rs. 15,000/-

only. The plaintif also contended that previously

during continuance of the agreement for letting out

the Generator set which was executed on 01.02.2011


for the period from 01.02.2011 to 31.01.14 at the

request of the plaintif due to high price of diesel the

rent was increased accordingly even before expiry of

the running agreement as usual as Bank did from time

to time. So the plaintif made written request on

10.04.2014 and 10.06.2014 to increase monthly rent,

due to overall hike in price of diesel and other charges

which was accepted by the defendant No.1 and he

assured to increase the rent but took no step in that

regard. As such, the plaintif vide his letter dated

31.07.2014 informed of the fact to the defendant No. 1

that unless rent is increased the Generator power

supply by him to the branch of the defendant No. 2

would not be continued after 31.08.2014 due to heavy

losses already sufered by him, but the monthly rent of

Generator was adjusted by way of crediting in two loan

accounts of the plaintif being 50072125526 and

50028222613 in the same branch under the control of

the defendant No. 1. That the plaintif has a Savings

Account too in the same Branch. In the month of

September, 2014 the plaintif found that the loan

instalments were deducted from his savings Account

No. 20695046397 dishonestly without prior intimation

illegally and wrongfully by the defendant No. 1 as lying

in the Branch under his control without the knowledge

and consent of the plaintif causing wrongful losses to

him.


23. On enquiry made by the plaintif he came to know that

on receipt of letter dated 31.07.2014 the defendant

causing wrongful losses to the plaintif.24. In the instant suit the Plaintif is claiming and

demanding that the defendants did not paid rent in the

increased rate as demanded by the Plaintif and in-

stead of payment the defendants engaged another

supplier for generator service without paying the

Plaintif. On the other hand the defendants have

claimed that the plaintif has violated the terms and

conditions of the agreement and hence he is not

entitled to get any further rent or compensation as

claimed by the plaintif in this instant suit. So there is

something to be adjudicated by the Court between the

parties. Hence, there is a definite cause of action for

the suit. Accordingly, this issue is decided in

affirmative and in favour of the plaintif.

25. Issue No. 3: Whether the defendants terminated

the existing agreement with the plaintiff in

letting out the generator ?

Ext.6 i.e the copy of agreement dated 1st February,

2011 and another agreement dated 15.03.2013 were

made between the parties. In the agreement dated 1st

February, 2011 the rent of the Generator was fixed @

Rs. 9,500/- per month for 3 years ending on 31st

January, 2014 and there is no dispute regarding this

agreement.


26. In the agreement made between the parties on

15.03.2013 the enhanced rate of the Generator was

fixed at Rs. 15,000/- per month for 3 years ending on

28th February, 2016.

27. The plaintif vide his letter dated 31.07.2014 (Ext.10),

informed the Chief Manager, Allahabad Bank, Main

Branch, Dibrugarh i.e. defendant No. 1 as under :

“ With reference to letter dated 14.04.2014and 10.06.2014, I am very much obliged to saythat without increasing the rent amount, I shallnot be in a position to supply you generatorpower supply as according to previous rate.Therefore, until and unless rent is increase tominimum 24000/- p.m. without which I cannotfavour you the same.

Henceforth, I shall be favouring thegenerator power supply upto 31.08.2014 Heavylosses I hope you shall not take it to the heart.Thus, I request you from bottom of my heartthat our relation remain as before in future too “

28. The above letter indicates that although the

agreement dated 15.03.2013 was in existence till 28th

February, 2016, but the plaintif demanded enhanced

rent of the Generator power supply much before than

its expiry of terms of the agreement i.e. before 28th

February, 2016. This act of the plaintif seems to have

violating the terms of the agreement. Defendants

cannot be held responsible for this violation.


Accordingly, the demand claimed by the plaintif to

enhance the monthly rent of the Generator power

supply to the bank of the defendant No. 1 from Rs.

15,000/- to Rs. 24,000/- per month cannot be termed

as a genuine demand on the part of the Plaintif.

Without termination of the agreement aforementioned

neither party can change or modify the terms and

conditions of the agreement.

29. The P.W.1 during his cross-examination stated that in

the agreement in question between the parties there

was no such condition for enhancement of the rent.

There was a condition to pay Rs. 15,000/- per month

by the defendant to the plaintif and till 31.07.2014 he

received the rent regularly from the defendant. It is

also admitted by P.W.1 that vide Ext. 8 and Ext.9 he

sent a letter requesting the defendants to enhance the

rent from Rs. 15,000/- to Rs. 24,000/-. P.W.1 further

deposed in the cross examination that in Ext. 9 he

stated that otherwise alternative withdraw generator

power supply will remain upto 30.06.2014. In Ext. 10

also he wrote that “henceforth, I shall be favoring the

generator power supply upto 31.08.2014.” So it is the

plaintif who has violated the terms and condition of

the agreement and stated that he will not provide any

service to the defendant after 31.08.2014 if the

enhance rent is not paid to him. P.W. 1 also admitted

that he has received rent from the defendant in his


loan account till he provided the power supply to the

defendants. When he stopped the service of the power

supply through generator the defendants stopped

payment. So, in my considered view it is the plaintif

who has violated the terms and condition of the

agreement. Hence, defendants cannot be held liable

for termination of the existing agreement with the

plaintif. As such, this issue is decided in favour of the

defendants and against the plaintif's claim.

30. ISSUE NO. 4 : Whether the plaintiff suffered any

damages for such termination ?

From the written statement submitted by the

defendants, it appears that as per the agreement, the

plaintif was entitled to receive a sum of Rs. 15,000/-

per month as the rent of the Generator and the said

amount was accordingly paid to the plaintif by the

defendant No. 1. P.W.1 Sri Chandan Mazumdar has also

admitted this fact in his deposition. Agreement for

running Generator was made on 1st February/2011 and

the same was valid for 3 years. The rent of the

Generator @ Rs. 15,000/- per month and the same was

paid till July, 2014 to the plaintif by defendant No.1.

31. It is submitted by the defendants in their W/S that as

per the agreement dated 15.03.2013 the plaintif was

bound to execute the agreement for the entire agreed


period without any default but soon after execution of

the agreement, he had placed the demand to increase

the monthly rent to an exorbitant rate from Rs.

15,000/- to Rs. 24,000/- per month and claimed

accordingly vide his letter dated 10.04.2014 which was

beyond the agreed terms and conditions. The

defendants submitted that the demand of the plaintif

to increase the monthly rent just after execution of the

agreement was illegal, arbitrary and not in accordance

with law.

32. The defendant Bank vide its letter No.

DIB/PNPA/14/485 dated 12.12.2014 (Ext.24) informed

the plaintif to regularize his term loan account nos.

50028222613 and 50072125526 with them as it was

observed by the bank the plaintif was not depositing

the EMI's since September, 2014 and directed to

deposit the instalment of Rs. 6,300/- in TL-

50028222613 and Rs. 9,300/- in TL-50072125526

every month till liquidation of the loan.

33. There is no document submitted by the plaintif to

show that the plaintif thereafter deposited the

instalments to regularize the above two accounts.

34. The defendant Bank also vide its letter 11.07.2015

(plaintif’s document No. 13) had intimated the plaintif

that the loan account in the name of Sri Chandan

Mazumdar PN- 50028222613 and PN-50072125526


has been closed on 10.07.2015 and there are no dues

pending against these accounts with their Bank.

35. The plaintif also could not produce any document to

disprove the above fact. As a result, this issue goes

against the plaintif and in favour of the defendants.

Accordingly, Issue No. 4 is decided in negative.

36. ISSUE Nos. 5 and 6 : Whether the plaintiff is

entitled to the relief as claimed for ? and

To what relief/s the parties are entitled to ?

For the sake of convenience, the above two issues are

taken together for discussion.

37. As the Issue No. 3 and 4 which are the main issues,

goes against the plaintif, further discussion regarding

these issues is not necessary. In the result, both the

issues are decided not in favour of the plaintif. The

plaintif is not entitled to any relief as claimed for.

38. From the above discussion, I am of the considered view

to hold that the suit is liable to be dismissed due to

non-compliance of agreed terms and conditions as

contained in the agreement dated 15.03.2013.


O R D E R

A). Plaintif’s suit is dismissed on contest without

cost. The plaintif is not entitled to any relief as prayed

for.

39. This disposed of the suit on contest.

40. Prepare a decree accordingly.

Given under my hand and seal of this Court on this the

11th day of March, 2020 at Dibrugarh, Assam.

Dictated & corrected by me,

Civil Judge, Dibrugarh Civil Judge, Dibrugarh


A P P E N D I X

P.W.1 : Sri Chandan Mazumdar

Plaintiff’s documents :

Exts. 1 to 5 : Appreciation Certificates of the

defendant’s bank as well as other

organizations

Ext.6 : Copy of agreement with the defendant Bank

commencing from 01.03.2013 to 28.02.2016.

Ext.7 : Copy of previous agreement with the

defendant Bank commencing from 01.02.2011

to 28.02.2014.

Ext.8 and 9 : Request letters of the plaintif to increase

the monthly rent.

Ext.10 : Letter of the plaintif informing the defendant

No. 1 that unless the rent is increased,

Generator power supply would be stopped

after 31.08.2014 due to heavy losses already

sufered by the plaintif.


50028222613.


5002125526.

Ext.13 : Loan clearance certificate.

Ext.14 : Saving Bank Pass Book No. 20695046397.

Ext.15 : Advocate’s notice

Ext.16, 17 and 18 : Postal receipts.

Ext.19, 20 and 21 : A/D cards.


Ext.22 : Defendant’s reply.

Ext.23 : Copy of complaint given by the plaintif

against the defendants.

Ext.24 : Copy of letter of defendant No. 2 through

defendant No. 1.

Civil Judge, Dibrugarh

high court form no. 2 - dibrugarh district judiciary

Documents