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S Singh   13 August 2015

Is indiancontractact applicable when subjectmatter subjudice

Sir,

Plz. take this like an academic query.

1. Ram takes loan of Rs. 1,00,000/- in cash from Shyam.
2. Ram deposits the cash into his bank.
3. Shyam asks for his amount back from Ram.
4. Ram denies to give back.
5. Shyam lodges an FIR and also files a suit against Ram that the loan was taken by fraud and forgery.
6. Cases are pending in both the Criminal and Civil Courts.
7. Bank came to know that the amount kept in the name of Ram actually belongs to Shyam.
8. Bank handovers the amount to Shyam and issues a letter to Ram informing amount debited and closure of account.

So is the Indian Contract Act, 1872, sections 39, 73, 151 and 153 applicable in a suit against the breaching party i.e. "the Bank"?
Can a Suit for compensation of damages arising out of anticipatory repudiation (breach) [under sec.39 of Indian Contract Act] be filed by making only the bank as party and be successful?
Can compensation be received today by Ram even if the Criminal and Civil Cases are pending?



 11 Replies

G.L.N. Prasad (Retired employee.)     13 August 2015

Bank is not a party in any of the prior dealings.

'" Bank handovers the amount to Shyam and issues a letter to Ram informing amount debited and closure of account."

You are just assuming things, and a Bank is a judicious authority to decide and pay the amount (Ram's amount to Shyam)  to other than actual depositor, and stating that the amount was debited and account closed is an impossible proposition (unless it is a co-operative Bank, that takes law into it's hand for ulterior purposes.

You need not file case against the Bank (if their actions are true it amounts to defeciency and malafide intentions ) spending your money, give a legal notice and approach to Banking Ombudsman or Consumer forum.

 

SIVARAMAPRASAD KAPPAGANTU (Retired Manager)     15 August 2015

Banks never handle the matters the way you have explained. Even if  "A" comes to bank and states that "B" had taken the amount by fraud and it is deposited in his account with them, it is not Bank's domain to sit in judgement, verify facts and act upon the complaint from "A". As long as the credit into "B"'s account is by following the provisions of N I Act as prescribed for a collecting banker, Bank is in clear.

 

Please come out with full facts of the bank closing the account by paying the amount to somebody other than the account holder.

G.L.N. Prasad (Retired employee.)     16 August 2015

Please kindly avoid misinterpretation by just assumptions and always inform relevant facts.

Biswanath Roy (Advocate)     18 August 2015

Bank cannot abruptly and upon their own whim transfer deposits in A's account to B's account.  Don't think Bank officers are idiots.

G.L.N. Prasad (Retired employee.)     18 August 2015

Rightly said /commented.  Now after the fixing of accountability clause, hardly 10% of officials take minimum risk, particularly in deposit accounts.  They can only maintain status quo, and what they can maximum do is refer the matter to legal dept/next higher authority seeking information.  If every Bank takes law into their hand like this, there is no need for Courts.  Even for exercising their right of general lien against Guarantor, Banks take lot of precautions.  The post lacks clarity and appears to be mere assuming some thing that can never be possible under any laws.  THere is a possibility of such adjustment if Banker's exercise their fundamental right of General lien and use set off, even for this notice is legally required.

S Singh   19 August 2015

Actually this happened with me:

I had opened a demat account with a depository in 2006.
I purchased some shares from its seller and the seller delivered them into my demat account vide an off-market transfer in 2009.
The seller lodged an FIR against me and claimed the shares in 2009.
The police sent a letter to the depository in 2009 to keep freeze upon the shares till that time till order of Court comes.
The Court convicted me in 2012 and in its Judgment order sentenced me to suffer 3 yrs. imprisonment with fine of Rs. 4000 and also ordered me to return the muddemal property (shares) to the complainant after the period of appeal is over.
I immediately within 30 days of the order filed an appeal which is till date pending.
The police approx. one month after the Judgment order date sent letter to my depository making reference of its previous letter of 2009 and stated that “The Magistrate had ordered the accused to handover the shares back to the complainant after the period of appeal is over."
But the depository by mistake thought that the order was for them instead me and in a wrongful assumption also calculated 60 days as the appeal period from the Judgment order date and without taking my signature and authorization transferred the shares to the demat account of the complainant and closed my demat account.

I have also found that no other action of transfer of Muddemal Property (shares) has been taken by any Court.

The depository admits their fault but deny to reinstate the shares and issued repudiation letters.
The shares which the complainant received by the mistake of the depository has been alienated by the complainant and are not traceable.


What can be the remedy? Plz. Help

G.L.N. Prasad (Retired employee.)     19 August 2015

This is what happens if member states some thing first in his post, and then comes out with facts with some other thing.

No words, for those who do not mention facts and acts smart to get advice with some other motives, as it is just wastage of time for those who respond, taking the post most seriously.

Biswanath Roy (Advocate)     19 August 2015

Now you shall have to  squirm in disappointment.

S Singh   20 August 2015

I had stated earlier as this is an academic query just to simplify things and to make it easier to understand the case as advisors  (including my personal lawyers as well) have been giving different opinions on my issue. 

I am not able to decide what to do?

Some say, that I do not have any cause of action, whereas some agree that there is a cause of action.

Some say that I have to wait for the outcome of the case whereas some advice to issue notice to the depository and file a case upon the depository as the cause of action is separate.

Some say that I have to file a new case with SEBI while some say in consumer court.

Some say that the limitation period is over of the consumer court while some say that cause of action is running and so is the limitation period to.

Some say to file a writ in the High Court, Bombay while some advice me on filing a separate suit in a Civil Court for compensation for damages.

There is no final consensus regarding my issue and hence I don't know what steps to be taken for redressal of my grievance.

If your Learned can advice anything shall be of great relief to me.

G.L.N. Prasad (Retired employee.)     20 August 2015

You have already made several attempts and alternatives are placed before you, and it is you that has to decide, and no one can offer better advises than what were already under yoiur consideration.  

T. Kalaiselvan, Advocate (Advocate)     24 August 2015

Since you have already filed appropriate cases and also approached the different forums seeking remedy and relief, why dont you wait for the outcome.  Will your situation be altered now after taking opinions at this stage when you have already flung into legal action on the subject?


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