Delhi District Court
Canara Bank vs Sh. Jagdish on 11 April, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 184/2010
Canara Bank
Hans Raj College Branch,
Delhi - 110007. .... Plaintiff.
Versus
Sh. Jagdish
1821, Malka Ganj Road,
Subzi Mandi, Delhi - 110007. .... Defendant.
SUIT FOR RECOVERY OF Rs. 67,842/.
Date of Institution : 09.12.2010
Date of reserving Judgment : 01.04.2016
Date of pronouncement : 11.04.2016
JUDGMENT
1. Vide this Judgment, I shall dispose off the suit of the plaintiff seeking a decree for a sum of Rs. 67,842/ along with pendente lite and future interest @ 17.5% per annum to be compounded monthly Suit No. 184/10 Canara Bank Vs. Jagdish Page 1 of 14 along with penal interest @ 2% per annum against the defendant.
2. Brief facts as stated in the plaint are as follows : The plaintiff is a Body Corporate constituted by the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 having its Head Office at 112, J.C. Road, Bangalore and having its branches throughout India including one at Hans Raj College, Delhi - 110007. Sh. JK Chaudhary, Senior Manager is the duly constituted attorney of the plaintiff and authorized to sign, verify and institute the present suit.
3. It is stated that the Saving Bank Account No. 2848101012023 had been maintained by the defendant with the plaintiff bank and during course of transactions, the defendant issued a cheque bearing no. 161124 for a sum of Rs. 57,000/ in favour of Shri Vishnu Kain which was presented through clearing in his account on 29.10.2009. On that day, the balance was not sufficient in the account of defendant but at the request of the defendant, the cheque was honoured.
4. It is further submitted that a temporary overdraft was created in the said account of the defendant as the defendant had withdrawn excess amount than the cash available. This overdrawn amount was subjected to interest at prevailing rate of lending and in case of non payment, surcharge along with penal interest @ 2 % per annum was to be levied on the outstanding amounts.
5. It is further stated that the plaintiff personally and in writing asked the defendant on various occasions to clear the liability. The Suit No. 184/10 Canara Bank Vs. Jagdish Page 2 of 14 defendant assured the plaintiff to clear the liability but failed to keep his assurance. The plaintiff issued a legal notice dated 02.03.2010 calling upon the defendant to clear his liability. Upon receipt, the defendant assured the plaintiff to clear the entire liability, but nothing was done to clear the same. Hence, the account of the defendant was classified as NPA on 01.02.2010. Therefore, the plaintiff has filed the present suit seeking following reliefs:
Pass a decree for a sum of Rs. 67,842/ along with pendente lite and future interest @ 17.5% per annum to be compounded monthly along with penal interest @ 2% per annum against the defendant.
6. The defendant has filed the written statement submitting that the present suit is an abuse of process of law and the plaintiff has no cause of action to file the present suit. It is further submitted that the plaintiff has not approached the Court with clean hands and has suppressed material facts from the Court. It is further submitted that the Saving Bank Account was closed by the defendant with the plaintiff bank long back in the mid of year 2008 and the question of encashment of any cheque does not arise. It is also submitted that there was no overdraft facility with the saving bank account of the defendant. The defendant has never availed such facility. Therefore, the present suit is not maintainable. It is further submitted that there was a cutting in the cheque and such cheque should not be encashed as per RBI guidelines.
7. No replication to the written statement was filed despite opportunity granted and the right of the plaintiff to file replication Suit No. 184/10 Canara Bank Vs. Jagdish Page 3 of 14 was closed vide order dated 5.3.2012.
8. On completion of pleadings, following issues were framed by the then Ld. Predecessor of this Court on 05.03.2012 for consideration :
1. Whether the suit of the plaintiff is not maintainable as alleged ? OPD.
2. Whether the plaintiff is entitled to recover a sum of Rs. 67,842/ as prayed for ? OPP.
3. Whether the plaintiff is entitled to recover any interest on the said amount, if so, at what rate and for what period ? OPP.
4. Relief.
9. The parties were then called upon to lead their respective evidence. The plaintiff examined Sh JK Chaudhary, Sr. Manager of plaintiff bank, as PW1 who tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments of the plaint. He relied upon the following documents: i. Copy of General Power of Attorney as Ex. PW1/1 (OSR).
ii. Account opening form of the defendant as Ex.
PW1/2.
iii. Original of legal notice dated 02.03.2010 along with postal receipt as Ex. PW1/3 and Ex. PW1/4 respectively.
Suit No. 184/10 Canara Bank Vs. Jagdish Page 4 of 14iv. Certified copy of statement of account as Ex. PW1/5.
v. Photocopy of cheque bearing no. 161124 issued by the defendant for a sum of Rs. 57,000/ in favour of Sh. Vishnu Kain as Mark A. vi. Copy of reply dated 09.03.2010 to the legal notice as Mark B.
10. The plaintiff did not examine any other witness and PE was closed vide order dated 23.09.2015. The defendant examined himself as DW1. DW1 has tendered his evidence by way of affidavit Ex. D1, wherein he has reiterated the substance of the written statement. DE was closed vide order dated 4.2.2016.
11. Parties were then called upon to advance their final arguments in the matter.
12. I have heard the Ld. Counsels for the parties and have perused the case file. My issuewise findings are as follows :
13. ISSUE NO. 1 : Whether the suit of the plaintiff is not maintainable as alleged ? OPD.
14. The onus to prove this issue was placed upon the defendant. The defendant has contended that there was no overdraft facility on the saving banks account of the defendant and therefore the suit is not maintainable.
15. Ld. Counsel for the defendant has argued that along with the plaint, he was not supplied with the copy of GPA and therefore, the objection was taken that the suit of the plaintiff is not maintainable.
Suit No. 184/10 Canara Bank Vs. Jagdish Page 5 of 1416. On the other hand, Ld. Counsel for the plaintiff has argued that the defendant has failed to bring any material to show that the suit of the plaintiff is not maintainable. It is submitted that the suit has been filed by authorized person competent to sign Vakalatnama and other documents and the suit has been filed within period of limitation.
17. I have considered the contentions of Ld. Counsel and perused the record.
18. The plaintiff has filed the present suit alleging that the defendant had a Saving Bank Account with the plaintiff company and during course of transaction, the cheque bearing no. 161124 issued by the defendant for a sum of Rs. 57,000/ in favour of Sh. Vishnu Kain was presented through clearing on 29.10.2009. The balance in the account of the defendant was not sufficient but on the request of the defendant, the said cheque was cleared after temporary overdraft was created in the account of the defendant. The overdraft amount was to be paid within the limited duration but the defendant failed to make the payment and hence the suit for recovery has been filed. The present suit has been filed on 09.12.2010. The suit has been filed within period of limitation. The power of attorney of Sh. JK Chaudhary has also been filed along with the plaint. Vide Power of Attorney dated 02.02.1993, Ex. PW1/1, Sh. JK Chaudhary has been authorized to file the present suit and take necessary actions for the institution and proceedings of the suit. I agree with the contention of the Ld. Counsel for the plaintiff that there is nothing to show that the suit of the plaintiff is not maintainable. Accordingly, this issue is Suit No. 184/10 Canara Bank Vs. Jagdish Page 6 of 14 decided in favour of the plaintiff and against the defendant.
19. ISSUE NO. 2 : Whether the plaintiff is entitled to recover a sum of Rs. 67,842/ as prayed for ? OPP.
20. The onus of proof of this issue has been placed upon the plaintiff.
21. Ld. Counsel for the plaintiff has argued that the defendant has failed to bring any material to show that he had closed the account in Mid 2008. The defendant in the written statement has alleged that the fraud has been played upon him. However, no complaint has been filed till date which shows that the defence taken by the defendant is false and only to avoid the payment. It is also submitted that it is for the first time during crossexamination that the defendant has stated that the account was closed in the month of June 2008. However, no such plea was taken by the defendant either in the written statement or in the affidavit. It is argued that the defendant has requested the plaintiff to create temporary overdraft and he is liable to pay the amount.
22. On the contrary, Ld. Counsel for the defendant has argued that the plaintiff has to prove its case on its own legs. The plaintiff cannot take any benefit of the weakness of the defence put by the defendant. It is submitted that the account opening form produced by PW1 shows that there was no overdraft facility sanctioned to the defendant and the bank has failed to explain as to why overdraft of Rs. 57,000/ was provided to the defendant without any instructions. It is submitted that there was material alteration in the cheque and the Suit No. 184/10 Canara Bank Vs. Jagdish Page 7 of 14 officials of the plaintiff had encashed the cheque violating the RBI guidelines and therefore the plaintiff is not entitled to recover any amount from the defendant.
23. The burden lies on the plaintiff to prove that the bank is entitled to recover the amount from the defendant. The plaintiff has examined PW1 Sh. J.K. Chaudhary to prove that the defendant is liable to pay the amount claimed. Sh. J.K. Chaudhary has deposed in his evidence by way of affidavit that he has worked at Canara Bank, Hansraj College branch from June 2009 to June 2012 and he has dealt with the account involved in the present case. He has also stated in his affidavit that during the course of transactions, at the request of defendant, the cheque No. 161124 was honoured though the balance was not sufficient to bear the same.
24. Sh. JK Chaudhary during his crossexamination had stated that the cheque in question was not cleared consciously by the officials of the plaintiff. The statement of account of the defendant has been placed on record along with the account opening form.
25. The statement of account of the defendant Ex. PW1/D1 (colly) is starting from 09.06.2007 to 02.02.2010. PW1, Sh. J.K. Chaudhary is Senior Manager in the plaintiff bank. He has stated that if the customer has a goodwill with the plaintiff bank, sometimes the request of the customer for overdraft limit has been considered if the customer is regularly maintaining his account. PW1 has further stated that normally, the Overdraft Facility is not available with the Saving Bank Account. However, in some circumstances, the request for Suit No. 184/10 Canara Bank Vs. Jagdish Page 8 of 14 overdraft to the tune of Rs. 500010,000/ might be considered for such accounts. He has also stated that normally, if a customer is having a goodwill with the plaintiff bank and is regular in maintaining his account, his verbal request for encashing a cheque can be considered.
26. In the present case, the statement of account Ex. PW1/D1 (colly) would show that the account was opened by defendant on 09.06.2007 and the cash of Rs. 1000/ was deposited. The maximum amount in his account was Rs. 10,398/ on 28.2.2008. Apart from this, there has always been balance less than Rs. 10,000/. There was zero balance in the account of the defendant since 30.06.2008. However, the plaintiff bank had given Overdraft Facility to the defendant to the tune of Rs. 57,000/ without any written documentation to create overdraft facility in the saving account of the defendant. It was the duty of the plaintiff bank to complete necessary documentation before creating overdraft facility in the saving bank account.
27. The statement of account Ex. PW1/5 also reveals that the account has not been even regularly maintained by the defendant and there is no question of goodwill between the plaintiff and the defendant in case of such irregular account. Had it been the case that the defendant had requested to create overdraft facility in case of such irregular account, the plaintiff bank must have completed necessary documentation before grant of overdraft facility.
28. The account opening form of the defendant is Ex. PW1/2.
Suit No. 184/10 Canara Bank Vs. Jagdish Page 9 of 14Perusal of the account opening form would show that on the 4 th page of the account opening form, it was stated in the column of "credit facility enjoyed", not applicable (NA). The said clause is reproduced as under: Credit Facilities enjoyed : Vehicle Loan ___ Consumer Loan ___ Housing Loan ___ Term Loan ___ Overdraft Loan ___ N.A.
29. This particular clause of account opening form would also show that no credit facility was provided to the defendant by the plaintiff bank including overdraft facility. The plaintiff bank has failed to bring any material to show that there is any rule or procedure under which overdraft facility / overdraft loan can be granted to saving bank account holder in any circumstance.
30. It is also noteworthy that the cheque bearing No. 161124 was dated 28.12.2008 and the same was allegedly presented on 11.6.2009 which has been encashed by the plaintiff bank on 29.10.2009. There is no explanation as to why the cheque was kept on hold from the period 11.6.2009 to 29.10.2009.
31. Furthermore, the alteration in the cheque is apparent on record. The perusal of copy of cheque Mark A would show that there is cutting on the word 'thousand' and the cutting is not even countersigned by the defendant / drawer of the cheque. The PW1 has admitted that the cheques involving material alteration are not cleared by the bank in the routine business. He has further stated that the cheque was supposed to be returned to the drawer if the alterations as Suit No. 184/10 Canara Bank Vs. Jagdish Page 10 of 14 apparent thereon were present at the time of its presentation for its encashment. The testimony of Sr. Manager Sh. J.K. Chaudhary shows that the cheque was not to be cleared as there was apparent alteration on the same. In the case in hand, the officials of the plaintiff bank had cleared the cheque containing material alteration. The negligence of the bank officials in clearing the cheque containing material alteration is evident from the testimony of PW1 Sh. J.K. Chaudhary.
32. Ld. Counsel for the plaintiff has argued that the written statement of the defendant has not been verified as per CPC and in the absence of verification of the written statement, the same cannot be considered for any purpose.
33. Ld. Counsel for the defendant has argued that as per Order 6 CPC, there is requirement of verification of the plaint and there is no requirement that the written statement filed by the defendant shall also be verified.
34. I have considered the contentions of Ld. Counsels for the parties.
35. Order 6 Rule 14 of the CPC provides that every pleading shall be signed by the party and his pleader (if any). Order 6 Rule 15 of the CPC provides that every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Rule 15 (4) of CPC also provides that the person verifying the pleading shall also furnish an affidavit in support of his pleading.
Suit No. 184/10 Canara Bank Vs. Jagdish Page 11 of 1436. In the present case, the written statement has been signed by the defendant and his pleader / Advocate. Though admittedly, there is no verification on the written statement however, the affidavit supporting the written statement is properly verified and attested. The Hon'ble Supreme Court of India in the matter of Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, (2006) 1 SCC 75 has held that if a plaint is not signed by the plaintiff / his duly authorized agent due to any bona fide error, the defect can be permitted to be rectified either by the trial court at any time before judgment or even by the appellate court by permitting appropriate amendment, when such defect comes to its notice during hearing. The Hon'ble Gauahati High Court in the matter of Kailash Singh Vs. Hiralal Dey, AIR 994 Gau 12 has also held that improperly verified and signed plaint need not be rejected if plaintiff makes out the plaint case in his testimony.
37. In view of the discussion hereinabove, this Court is of the opinion that mere fact that the written statement has not been verified is not a reason to reject the entire defence of the defendant. The affidavit supporting the written statement is duly verified by the defendant. Therefore, the contention of Ld. Counsel for the plaintiff that in the absence of verification of the written statement, the defence may not be considered is not acceptable.
38. The contention raised by the Ld. Counsel for the plaintiff that the defendant has taken contradictory plea is also not acceptable. The defendant during his evidence has stated that he has closed his Suit No. 184/10 Canara Bank Vs. Jagdish Page 12 of 14 account in the month of June 2008 and the particular month was not mentioned in the written statement and the affidavit. However, mere non mentioning of the particular month does not itself prove that the evidence of the defendant is unreliable and not worthy of credit. Rather, Ld. Counsel for the plaintiff, during crossexamination of DW1 Sh. Jagdish had given suggestion to the defendant that he had closed his account in the month of June, 2008. Ld. Counsel has suggested to the defendant, "It is correct that I had closed my account No. 161124 in the month of June, 2008". The suggestion given by Ld. Counsel for the plaintiff is an admission on behalf of the plaintiff that the account was closed in the month of June, 2008.
39. No doubt, the defendant has admitted during cross examination that the cheque Mark A bears his signatures. However, the admission of defendant itself does not prove that he had requested the plaintiff bank to create overdraft facility. The burden lies upon the plaintiff to prove that the defendant has requested to create the overdraft facility on the saving account. However, the plaintiff has failed to prove on the balance of probability that the defendant had made any such request. The circumstances in which the cheque has been cleared by the plaintiff bank shows the negligent conduct of the officials of plaintiff bank and it also creates doubt over the story of the plaintiff that the defendant had issued any instructions to create overdraft facility on his saving bank account or requested to clear cheque bearing No. 161124.
40. In view of the discussion herein above, this Court holds that the Suit No. 184/10 Canara Bank Vs. Jagdish Page 13 of 14 plaintiff has failed to prove on the balance of probability that it is entitled to recover any amount from the defendant. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
41. ISSUE NO. 3 : Whether the plaintiff is entitled to recover any interest on the said amount, if so, at what rate and for what period ? OPP.
42. The onus to prove this issue was upon the plaintiff. In view of my findings on issue no. 2, this Court holds that the plaintiff is not entitled to any interest. This issue is accordingly decided in favour of the defendant and against the plaintiff.
43. RELIEF.
44. In view of my findings on issue Nos. 2 and 3, this Court holds that the plaintiff is not entitled to any relief. Accordingly, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 11th April, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 184/10 Canara Bank Vs. Jagdish Page 14 of 14