TaxTMI 
TaxTMI 
2001 (10) TMI 1000
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.... suit against the appellant basing dues on three transactions which had taken place between them. On 23-8-1991 the appellant purchased Government of India securities 2008-A of face value of Rs. 10 crores at the rate of Rs. 101.50 and on 26-8-1991 it purchased similar securities of the face value of Rs. 7 crores at the rate of Rs. 101.50 and a similar transaction was entered into on 14-9-1991 where security of face value of Rs. 43 crores was purchased at the rate of Rs. 101.50. In this manner, securities of the face value of Rs. 60 crores were purchased from the appellant by the respondent. 3. The payment for the aforesaid was made and in lieu thereof the appellant-Bank delivered to the respondent three costs memos and 3 SGL transfer forms. When these transfer forms were presented to the RBI they were returned because the account of the appellant with the RBI did not show that the said SGL forms could be honoured. These SGLs were presented twice again but without success. Ultimately, it is an admitted case, that the respondent did receive SGLs of the face value of Rs. 1.61 crores. The suit which was filed was for Rs. 58.39 crores plus interest thereon. Written statement was filed....
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....a 5( d) of the written statement of defendant No. 1 ? 11.Whether in such transactions, plaintiffs were carrying Hiten P. Dalal's open position as their own position as stated in para 4 ol the written statement ? 12.Whether in the suit transactions the defendants fund was used as intermediary for transfer of monies advanced by the plaintiffs to Mr. Hiten P. Dalai ? 13.Whether the plaintiffs prove that they received half-yearly interest due on 23-11-1991 on securities covered under suit S.G.L.'s on or about 25-11-1991 as alleged in Para 11 of the plaint ? 14.Whether the plaintiffs prove that they had presented the S.G.L. dated 23-8-1995 for f.v. Rs. 7 crores on the dates as alleged in Para 10 of the plaint ? 15.Whether the plaintiffs prove that they had presented the 3 S.G.L. transfer forms were presented by the plaintiffs to R.B.I, on at least one occasion between 20-12-1991 and 14-5-1992 as alleged in the plaint ? 16.Whether the liability of the defendants to the plaintiffs under the transactions engaged in between the parties on 23-8-1991,28-8-1991 and 4-9-1991 stood square off as alleged in Para 5(1) of the written statement of defendant No. 1 ? 17.Whether th....
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....o ultimately prove to the Court a case which has not been pleaded. None of the authorities support the proposition that the Court must admit or will admit evidence merely to enable a party to ultimately prove to the Court a case which has not been pleaded. None of the authorities support the proposition that the Court must permit evidence, on the ground that a possible case of the transactions being against public policy may be made out, when such a case is contrary to the pleadings and the admitted position between the parties. The mere fact that averments have been made about the 15% arrangement can be of no assistance. These averments were made to support a case of squaring of and /or repayment. Averments made for that purpose can't be used to build up a possible case of the suit transactions being against public policy. There is, as yet no evidence before the Court that the contracts are opposed to public policy. Thus what the defendants want is that the Court should permit leading of evidence which might enable them to take a plea which is not pleaded. This would be contrary to all established principles. No court can permit a party to go on a fishing expedition, particularly ....
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....ence in support of such a plea." 5. On the question of squaring up of the transaction, a plea which was squarely taken in the written statement, the counsel for the appellants made a statement that it did not wish to lead any further evidence. 6. By judgment dated 13-3-1995, issues 1,2,8,9, 10, 11, 12, 14, 15, 16, 17 and 18 were answered in negative; issues 3, 4 and 5 were not pressed; the Court also held that issues 6 and 7 did not arise; issue 13 was held not to be proved and issues 19, 20 and 21 were answered in favour of the plaintiff. 7. We have heard the counsel for the parties at length. The main contention sought to be raised before us by Mr. Mihir Thakore, the learned senior counsel appearing for the appellant-Bank is that the Special Court ought to have allowed the appellants to lead evidence for proving its case that the transaction in question was opposed to public policy. He submitted that in any case, in this appeal, application has been filed for permission to amend the written statement and to lead additional evidence, this application should be allowed. 8. In our opinion, the decision of the Special Court calls for no interference. The plea which had be....