# Central Bank of India & others v. Dinesh Kumar Agarwal and others

- **Citation:** (2009) 1 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-24
- **Case number:** Second Appeal No. 126 of 2009
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/central-bank-of-india-others-v-dinesh-kumar-agarwal-and-others-41337
- **Pages:** 2

## Text

170 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Second Appeal No. 126 of 2009

Central Bank of India & others ...Appellants
Versus
Dinesh Kumar Agarwal and others

 ...Respondents

Counsel for the Appellants:
Sri Himanshu Tewari

Counsel for the Respondents:
Sri M.K. Gupta
Sri Nitin Kumar Agarwal

Code of Civil Procedure-Section 100Maintainability of Second Appeal-suit for
permanent injunction restraining the
respondent to in cash the bank draft
subsequently Bank Draft converted into
FDR-after
dismissal
of
suit-Second
Appeal by Bank without filing First
Appeal
or
cross
Appeal-held
not
maintainable.

Held: Para 7

Having considered the submission of the
learned counsel for the parties, this
Court is of the opinion that the objection
raised by the caveators has some force.
Nothing prevented the appellant bank
from filing its own appeal or taking
cross-objection against that part of the
decree of the trial court by which it
directed the bank to prepare F.D.R. in
the name of the Court. The dismissal of
the appeal of the plaintiff has not
resulted
in
any
modification
or
interference in the decree of the trial
court. The appellate court has only
affirmed the decree of the trial court. In
my opinion, on account of the failure of
the bank to file a first appeal against the
decree of the trial court or to take a
cross-objection, the bank has allowed
that part of the decree of the trial court
to achieve a finality which cannot be
allowed to be raised or questioned in a
second appeal. Consequently, this Court
is of the opinion that the second appeal
filed by the defendant-appellant bank is
not maintainable and is dismissed.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Himanshu Tiwari, the
learned counsel for the appellant and Sri
M.K.Gupta, the learned counsel assisted
by Sri Nitin Kumar Agarwal, for the
caveators-respondent Nos.2 and 3.

2. The plaintiff-respondent No.1
filed a suit for permanent prohibitory
injunction restraining the defendants from
encashing the bank-drafts and from
paying
the
amount
as
detailed
in
Schedule-A to the plaint. It was alleged
that the plaintiff had purchased six
demand
drafts
from
the
defendant/appellant bank, which was
payable to the present respondent Nos.2
and 3/defendants, but the said drafts
amounting to Rs.25,000/- each, were lost
and therefore, the suit for prohibitory
injunction.

3. An application for temporary
injunction was also filed. The trial court,
initially granted an injunction, restraining
the bank from getting the bank drafts
encashed.
Subsequently,
on
a
stay
vacating application filed by respondent
Nos.2 and 3, the injunction order was
vacated and the injunction application of
the plaintiff was rejected with a direction
that the bank drafts will be converted by
the bank in a F.D.R. in the name of the
Court. This interim order continue till the
pendency of the suit. Eventually, the suit
of the plaintiff was dismissed and the trial
1 All] Central Bank of India and others V. Dinesh Kumar Agarwal and others

171
court while dismissing the suit directed
the bank to release the F.D.R. along with
the accruing interest in favour of
respondent Nos.2 and 3.

4. Aggrieved, by the dismissal of the
suit, the plaintiff filed a First Appeal
before the High Court which was
subsequently transferred to the lower
appellate
court.
The
appeal
was
eventually dismissed by judgment dated
15.11.2008 and the decree of the trial
court was affirmed.

5. The defendant bank has now filed
the present second appeal contending that
the direction of the trial court to pay the
interest on the disputed draft amount was
perverse and was liable to be set aside.
The defendants submitted that the Court
without ascertaining itself and without
satisfying itself that the disputed draft was
not presented for encashment by the
defendants for its conversion into F.D.R.,
no F.D.R. came into existence and
therefore, consequently the direction for
payment of interest could not arise.

6. A preliminary objection has been
raised by the caveators with regard to the
maintainability
of
the
appeal.
The
caveators submitted that the defendantsappellant bank had neither filed a First
Appeal against the decree of the trial
court nor had filed any cross-objection
with regard to that part of the finding of
the trial court directing the bank to get the
F.D.Rs. prepared in the name of the Court
which decision had become final and
therefore, no second appeal could be filed
under Section 100 of the C.P.C.

7. Having considered the submission
of the learned counsel for the parties, this
Court is of the opinion that the objection
raised by the caveators has some force.
Nothing prevented the appellant bank
from filing its own appeal or taking crossobjection against that part of the decree of
the trial court by which it directed the
bank to prepare F.D.R. in the name of the
Court. The dismissal of the appeal of the
plaintiff
has
not
resulted
in
any
modification or interference in the decree
of the trial court. The appellate court has
only affirmed the decree of the trial court.
In my opinion, on account of the failure
of the bank to file a first appeal against
the decree of the trial court or to take a
cross-objection, the bank has allowed that
part of the decree of the trial court to
achieve a finality which cannot be
allowed to be raised or questioned in a
second appeal. Consequently, this Court
is of the opinion that the second appeal
filed by the defendant-appellant bank is
not maintainable and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Second Appeal No. 1421 of 2007

Ramapati Tiwari

...Appellant
Versus
The District Registrar, Allahabad and
others

 ...Plaintiff-Respondents

Counsel for the Appellant:
Sri V.K.S. Chaudhary
Sri Deo Prakash Singh
Sri Vishnu Gupta

Counsel for the Respondents:
Sri M.D. Singh "Shekhar"
Sri P.K. Kesari
Sri Radhey Shyam