Bank of India (BOI) the applicant in the Original Application (O.A.) No. 2128 of 2000 on the files of the Debts Recovery Tribunal-II, Mumbai (D.R.T.) is the appellant in both these appeals. In the aforesaid O.A. No. 2128 of 2000 was filed by the BOI against the 1^st respondent firm namely M/s Vidhi Creations represented by respondents Nos. 2 and 3 as the defendants seeking recovery of $40,976/-(equivalent to ₹29,60,316.16). The aforesaid defendants had filed a suit as No. 6689 of 1999 before the Hon’ble High Court of

¶18

¶19

Bombay against the BOI for recovery of money. The suit mentioned above was transferred to be tried along with O.A. No. 2128 of 2000 to be considered a counter-claim and re-filed as Original Application (O.A) No 124 of 2002.

¶20

Vide the impugned judgment and order dated 30.11.2004, O.A. No. 2128 of 2000 was dismissed while O.A. No. 124 of 2002 was allowed. Appeal No. 136 of 2005 is filed against the order of dismissal of the O.A.2128 of 2000 while Appeal No. 158 of 2005 is filed challenging the order allowing the O.A. 124 of 2002 treated as a counter-claim.

¶21

Succinctly put, the facts of the case are thus:

¶22

Respondent No. 1 M/s Vidhi Creations had approached the appellant bank with a copy of a letter dated 22.02.1994 (Ext. 28) from one M/s Pitt & Co. containing a direction to their bankers Standard Chartered Bank to remit $ 40,996/- to Bankers’ Trust Company New York (holders of Nostro Account) for credit of Respondent’s account with Appellant’s Mahalakhsmi Branch. They requested credit as monies were urgently required by the first respondent. The appellant credited into the account of the first respondent maintained with the appellant a sum of ₹12,81,654/- (equivalent to $40,976/- as per exchange rate of US Dollar at ₹31.28 as of 23.02.1994 after deducting commission/ charges). The appellant claims to have done so in good faith after obtaining confirmation from the Bankers’ Trust Company but without any authenticated swift message. Thereafter, on 17.03.1994 against receipt of swift message FM100 dated 23.02.1994 (Ext.30) by the

¶23

¶24

Bankers’ Trust Company on behalf of Pitt & Co., the appellant made payment again to the first Respondent by way of credit into the account a sum of ₹12,81,079/- being rupee equivalent to $40,956/after deducting commission and charges. According to the appellant, a double payment was made mistakenly.

¶25

The appellant states that the mistake of double payment was discovered only during the reconciliation of accounts in August 1997. On such discovery being made, the appellant sent a letter on 30.08.1997 (Ext.33) demanding $40,976/-, which was credited into the first respondent's account by mistake.

¶26

The respondents sent a reply to the aforesaid letter on 03.09.1997 (Ext.34) admitting the fact regarding two credits into their account of ₹12,81,654/- on 25.02.1994 and ₹12,81,079/- on 17.03.1994 but contended that the second credit was towards invoice No. VC/EXP/39/93-94 for $22,320/and invoice No. VC/EXP/40/93-94 for $18,636/- (referred to as invoices Nos. 39 & 40) totalling up to $40,956. However, it was also stated in the reply that 5% of the amount due from their export remittances be held back till the issue was resolved. The respondent, however, caused a lawyer notice to be issued on 30.04.1998 (Ext.41) stating that there was no double payment as alleged by the appellant and reiterated that credit was given by the bank towards invoices Nos. 39 & 40 for a total sum of $40,956/-.

¶27

In the written statement filed by the respondents, it was contended that the two payments credited into their account on

¶28

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25.02.1994 pertain to invoices Nos. 25, 26, and 31 and the payment on 17.03.1994 pertains to invoices Nos. 39 & 40.

¶30

In the affidavit of evidence (Ext.51) filed on behalf of the first respondent, it is stated that invoice No. 39 was for $22,320/- & invoice No. 40 was for $33,300/-.

¶31

The Ld. Presiding Officer had in the impugned judgment and order dismissed the claim of the appellant in O.A. No. 2128 of 2000 and allowed the counter-claim. Appeal No. 136 of 2005 is filed by the appellant against the dismissal of the O.A. while Appeal No. 158 of 2005 is against the same judgment and order allowing the counterclaim based on the amount which was retained by the appellant in the future export remittances as agreed by the respondents. The Ld. Presiding Officer has also held that the claim of the appellant was barred by limitation. The averment of the appellant that the mistake of double payment was discovered later on reconciliation and hence, the limitation begins to run only from the date of such discovery of mistake was not acceptable to the D.R.T. The appellant is aggrieved and hence, in appeal.

¶32

Heard the Ld. Counsel appearing for the appellant and the respondents. Records perused.

¶33

The main contentions that arise for consideration in this appeal are first, that there is a mistake by the appellant bank concerning double payment being made into the account of the first respondent. Secondly, the first respondent had admitted the fact regarding a mistake in accounting and whether it is binding upon the respondent,

¶34

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and finally, whether the claim of the appellant is barred by limitation.

¶36

It is the appellant’s case that the first respondent had approached the appellant with a letter dated 22.02.1994 (Ext.28) from M/s Pitt & Co. (which had imported goods from the first respondent and were liable to pay the price of those goods.) containing a direction to their bankers namely the Standard Chartered Bank to remit $40996/- to the Bankers’ Trust Company, New York for the credit of respondent’s account with the Mahalakshmi Branch with a request to credit the money urgently. Without even waiting for the swift message evidencing inward remittance from the Bankers’ Trust, the appellant credited ₹12,81,654/- on 25.02.1994 in good faith and requested the first respondent to get a confirmation from the Bankers’ Trust. On 17.03.1994, the appellant received a swift message dated 23.02.1994 from the Bankers Trust Company on behalf of the aforementioned M/s Pitt & Co. for payment to the first respondent into their account maintained with the appellant. Under the belief that this was a different payment, the appellant readily credited ₹12,81,079/- into the account of the first respondent being the rupee equivalent to the $40956/- after the deduction of commission charges. This according to the Appellant resulted in double payment as there was only one swift message FM100 received by the Mahalakshmi Branch on 17.03.1994. Had there been two transactions, two swift messages ought to have been received, and therefore, the appellant seeks a refund of the excess amount credited into the account of the first respondent.

¶37

The respondents, however, maintained a case that they received

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¶39

amounts towards two transactions with Pitt & Co. They would contend that the second credit was towards two invoices namely, invoice No. VC/EXP/39/93-94 for $22320/- and invoice No. VC/EXP/40/93-94 for $18636/- which when added, totals up to $40956/-. This was the stand of the respondents in their reply dated 03.09.1997 (Ext.34) and in the reply of their advocate dated 30.04.1998 (Ext.41).

¶40

In the written statement of the first respondent, it is contended that the earlier payment of $40976/- was towards invoices Nos. 25, 26 & 31 while the second payment of $40956/- was towards invoices Nos. 39 & 40. An affidavit in evidence filed on behalf of the first respondent as Ext.51 states that invoice No. 39 was for $22320/- & invoice No. 40 was for $33300/-. This statement in the affidavit adds up the amount as per the two invoices to $55620/- and does not tally with the figures mentioned in the written statement.

¶41

Invoice No. 39 produced by the respondents as Ext.59 is actually for $26706.27 and reduced to $22320/- in Ext.61 which is the replacement of Ext.59. Yet another invoice No. 40 produced by the respondents is for $25086/- which was not exhibited. Adding up these two, the total would be $47406/-.

¶42

This indicates a discrepancy in the amounts mentioned in the two invoices Nos. 39 & 40. Even in the documents exhibited as Ext.35 which is invoice No. 39 and Ext.36 which is invoice No. 40, the amounts shown are $27900/- and $33300/- respectively which adds up to $61200/- which would also be very much more than $40956/which is the double payment made.

¶43

¶44

There is also another discrepancy concerning the amounts mentioned in invoice Nos. 39 & 40 mentioned in the two bank certificates of the export and realisation (Ext.60 & 62) produced by the respondents indicate the amount as $22320/- & $25086respectively which adds up to $47406/- which is also at variance with the figures mentioned in the written statement.

¶45

There is no dispute that twice the amounts were credited to the account of the first respondent for alleged export to Pitt & Co. When the appellant alleges that it is the same transactions credited twice into the account of the first respondent, it is incumbent upon the respondents to prove that there were two different and independent transactions for which the amounts were received from Pitt & Co. Admittedly, there is only one swift message received for the transaction from Standard Chartered Bank through Bankers’ Trust Company holding nostro account. The Ld. Presiding Officer has concluded by accepting documents which were completely at variance and should have been discarded. Reference is made to a telex message (Ext.95) by the Ld. Presiding Officer to indicate that there was an acceptance of two payments received by the appellant. The receipt of $40956/- on 17.03.1994 is mentioned in the said telex per the swift message that was received on the said date from the Bankers’ Trust Company (Ext.30). The other credit of $49438/- was received on 14.04.1994 and mentioned in the telex has nothing to do with the earlier transaction.

¶46

There is material to show that the appellant was not aware of the mistake of the double payment made to respondent No. 1 till August

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1997 during the ongoing audit reconciliation. The existence of Ext.33 letter dated 30.08.1997 is not in dispute and the first respondent bank even responded the same on 03.09.1997 by Ext.34 letter. It is also pertinent to note that neither in the Ext.34 letter nor in the Advocate’s notice dated 30.04.1998 (Ext.41) did the respondents raise the contentions that the appellant was aware of the mistake of double payment before August 1997.

¶49

It cannot, therefore, be said that the appellant did not prove its case. On the other hand, it is the respondents have not adduced any evidence that there was a lack of due diligence on the part of the appellant. Since the appellant realised the fact regarding double payment only in August 1997, the O.A. filed by the appellant on 28.06.2000 would be well within the period of limitation as required under Sec. 17(1) (c) read with Sec. 113 of the Limitation Act.

¶50

In Ext.34 letter, it is admitted by the respondents that the records would be perused and it was requested that the appellant could hold back 5% export remittances in the EEFC account until the matter was resolved.

¶51

The Hon’ble High Court of Bombay has in Tumal Bishamal Sindhi vs. Amar Mohandas Sindhi BLR Vol. LXXIV 614 relying upon the judgment of the Hon’ble Allahabad High Court in Meghraj vs. Mathuradas 1913 ILR 35 ALL. 437 held that a narrow interpretation should not be put on what constitutes an acknowledgement under Sec. 18 of the Limitation Act. The appellant had filed I.A. No. 244 of 2022 to produce a letter dated 26.08.1997 addressed by the overseas branch of the appellant to its Mahalakshmi Branch. The appellant would rely

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on that letter to prove the question of limitation. The said letter would, therefore, come in aid of the appellant. This Tribunal is, therefore, of the view that the O.A. filed by the appellant is not barred by limitation.

¶54

The question that would now arise for consideration is whether the plea of coercion raised by the respondent would lie. The burden of proof regarding the existence of duress or coercion would squarely lie on the respondents who have made their allegations. Consequent to the issuance of the letter Ext.34 no police complaint has been filed against the appellant about the respondents being coerced to execute a letter. It is also pertinent to note that the advocate’s notice dated Ext.41 does not state anything about it. The appellant has in the letters marked as Ext.37 and also in the letters dated 19.03.1998 and 20.04.1998 repeatedly demanded payment of $40976/- from the respondents. Under such circumstances had there been any coercion as alleged, Ext. 34 notice ought to have mentioned it. The decisions of the Hon’ble Bombay High Court in Palbro International vs. Federal Bank Ltd. 2005 SCC OnLine Bom. 407 and Bajranglal Anilkumar Jaju & Ano. vs. The Vyasya Bank Ltd. 2015 SCC OnLine Bom. 4154 comes in support of the appellant. It cannot, therefore, be said that the appellant bank was in a dominating position. Hence, the plea of coercion may not be sustained.

¶55

The appellant also produced the statement of account of the respondents showing the credits of ₹12,81,654 on 25.02.1994 and ₹12,81,079 on 17.03.1994 in favour of the respondents. Under the circumstances, it will have to be held that the D.R.T. had committed in error in non-suiting the appellant while allowing the counter-claim.

¶56

¶57

In the result, the appeals are both allowed and the impugned judgment of the D.R.T. is quashed and set aside and O.A. No. 2128 of 2000 is allowed while O.A. No. 124 of 2002 stands dismissed.

¶58

Sd/Chairperson

¶59

mks-01.

¶60

Bank of India v. M/s. Vidhi Creations & Ors.

What the court decided

Bank of India v. M/s. Vidhi Creations & Ors.

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