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TMI Blog2013 (11) TMI 1747X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.05.2003 claiming damages of ₹ 3,09,000/- with cost and pendente lite and future interest @ 18% per annum against bank and its officers for withdrawing credit facility on 23.03.2002. Notice was issued to the bank and its officers by the District Court, Delhi. 4. The bank and its officers then filed an application under Order 7 Rule 11 Code of Civil Procedure in Suit No. 288/03/04 of 2003 before the District Court, Delhi for rejection of the plaint in the suit for damages on the ground that the same is barred by the provisions of Order 2 Rule 2 Code of Civil Procedure. The District Court elaborately heard the matter and after perusing the plaints, averments in both the suits as well as the reliefs sought for, came to the conclusion that the cause of action in both the suits was same and the relief sought for in Suit No. 288/03/04 of 2003 could have been claimed by the Plaintiff in the Suit No. 1145 of 2003 filed before the Delhi High Court. The application under Order 7 Rule 11 was, therefore, allowed, holding that the latter suit was barred under Order 2 Rule 2, Code of Civil Procedure and plaint was accordingly rejected. 5. The Respondent, aggrieved by the said order, fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.05.2001 and 14.06.2001 for the amounts of two Letters of Credit, one of which the bank could not recover and second was recovered later from the foreign bank. Further, it was also pointed out that the facts on the basis of which two suits have been filed and respective reliefs sought for, are absolutely distinct and separate and cause of action subsequently arose because of the wrongful acts of the bank depriving the Respondent of various banking facilities. Further, it was also pointed out that the damages claimed in the subsequent suit have no link or nexus to the cause of action with the previous one. Consequently, it was pointed out that the High Court has rightly allowed the appeal which calls for no interference by this Court under Article 136 of the Constitution of India. 8. We may, before examining the rival contentions, extract the relevant provisions of Order 2 Rule 2, Code of Civil Procedure for easy reference which reads as under: 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the Plaintiff be entitled to make in respect of the cause of action; but a Plaintiff may relinquish any portion of his claim in order to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on which the claim in the latter suit is based there would be no scope for the application of the bar. 10. In Sandeep Polymers (P) Ltd.'s case (supra), the above-mentioned principles were reiterated and this Court held as under: Under Order 2 Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the Plaintiffs are duty-bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the Plaintiff to include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action. If the Plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards. 11. The above-mentioned decisions categorically lay down the law that if a Plaintiff is entitled to seek reliefs against the Defendant in respect of the same cause of action, the Plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the Plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts were not regularized, the bank decided not to grant further facility. The Respondent then on receipt of the payment from the foreign buyer and having failed to take any steps to realize the payment from the buyer or issuing bank, filed a complaint on 30.09.2001 with the Banking Ombudsman against the bank on account of reversing the entry on non-receipt of payment of LCs. The complaint filed by the Respondent was, however, later withdrawn. The bank's stand is that closure of account was done on 20.03.2002 due to the fault of the Respondent on non-regularization of their accounts i.e. after non-receipt of payment of LC, the amount became irregular and remained so continuously. Let us now examine the averments contained in paragraph 37 of the subsequent suit No. 288/03/04 of 2003 in the above perspective. Paragraph 37 is extracted hereinbelow for easy reference: 37. That the cause of action to file the present suit accrued in favour of the Plaintiff and against the Defendants on all those occasions when the Defendants wrote various letters to the Plaintiff threatening initiate or actually initiating action against the Plaintiff in relation to various credit facilities whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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