Delhi District Court
In Reference vs Union Bank Of India on 22 July, 2022
IN THE COURT OF SH. KUMAR RAHUL: CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 1318/2017
CNR No. DLNT030021302017
In reference:
Shri Ravi Kiran Kabdaula
S/o Shri Madan Singh Kabdaula
Lieutenant Commander in Indian Navy
Posted At:
C/o NTS, Teyleravad, Port Blair
Andaman and Nicobar Islands, India ........... Plaintiff
VERSUS
Union Bank of India
Mangamaripeta Branch
Though its Manager
Chepala Uppada Post
Bheemili Mandal
Visakhaptanam531163 .......... Defendant
Date of Institution : 24.10.2017
Date of reservation of Judgment : 26.02.2022
Date of Judgment : 22.07.2022
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 1 of 55
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant bank for compensation of Rs. 2,65,884/ alongwith pendentelite and future interest @ 12% per annum from the date of suit till the date of realization of compensation.
FACTS AS PER THE PLAINT :
2. The case of the plaintiff in brief as per plaint is that the plaintiff is Lieutenant commander in Indian Navy and posted at Andaman and Nicobar Islands. It is case of the plaintiff that the plaintiff is having his savings' bank account no. 474202010009519 (Customer Id215357461) at defendants' branch situated at Vishakhapatnam. Plaintiff further avers that he is also having SBI Magnum Tax Gain Scheme through folio no. 10741829 and Tata Mutual Fund through folio no. 2248090/43. Plaintiff had registered his mobile no. 9703280679 and email id [email protected] with defendant bank and SBI and Tata Mutual Funds. Plaintiff had registered his local address of Vishakapatnam in his bank account with defendant, whereas he had registered his local address of Kochi in SBI and TATA mutual funds.
3. It is further case of the plaintiff that on 11.09.2016, he came to know that Tata Mutual Fund and SBI Mutual Fund redeemed Rs. 54,000/ and Rs. 88,996.15/ respecively without any Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 2 of 55 authority and signature of the plaintiff in the plaintiff's bank account with defendant and from which bank account, the whole money has been withdrawn by some fraudster. Plaintiff suspected his wife Ms. Sujata Sahu to have committed such fraud as many legal proceedings were going on since March 2013 and various FIRs were lodged by plaintiff against his wife. Plaintiff thereafter avers that Tata Mutual Fund and SBI Mutual Fund admitted that fraud has been committed. It is further stated that though Tata Mutual Fund and SBI Mutual Fund redeemed Rs. 54,000/ and Rs. 88,996.15/ in the plaintiff's bank account with defendant without any authority and signature of the plaintiff, still the plaintiff did not suffer much loss/damage as the money was lying in plaintiff's bank account with the defendant bank.
4. It is further case of the plaintiff that the plaintiff thereafter addressed email dated 13.09.2016, letter dated 14.09.2016, email dated 15.09.2016 to defendant asking about the fraud. Plaintiff further avers that defendant Bank through its letter dated 17.09.2016 issued by GTB Nagar branch, Delhi, in person to the plaintiff admitted that the fraud has been committed by plaintiff's wife Ms. Sujata Sahu impersonating as plaintiff's sister Ms. Neha Kabdaula and withdrew/transferred a total amount of Rs. 80,000/ through two transactions on 22.08.2016 by forging the signature of the plaintiff on the cheques. It is Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 3 of 55 further case of the plaintiff that the defendant through its letter dated 22.09.2016 issued by Mangamaripeta, Vishakhapatnam Branch to the plaintiff admitted that the defendant changed the address of the plaintiff in their system without any mandate and authority of the plaintiff and same has been done on the basis of email and forged documents received through unregistered email of the plaintiff in their records. The defendant further issued cheque book and sent the same through registered post on 09.02.2015 at the new address without any mandate, authority and signature of the plaintiff and the same has been done on the basis of email received from the unregistered email of the plaintiff. The plaintiff further avers that the defendant admitted the following 10 fraudulent transactions on the basis of cheques issued by defendant on 09.02.2015: Sl. Date Cheque No. Branch Amount No. 1 12.02.2015 02012041 Yusuf Sarai, 2,400 Delhi 2 11.07.2016 02012054 Survey of India, 10,000/ Dehradun 3 12.07.2016 02012027 Survey of India, 10,000/ Dehradun 4 12.07.2016 02012055 Abjabpur, 10,000/ Dehradun 5 13.07.2016 020112052 Abjabpur, 10,000/ Dehradun 6 15.07.2016 02012034 Panchkula 10,000/ 7 25.07.2016 02012058 Abjabpur, 3,500/ Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 4 of 55 Dehradun 8 20.08.2016 02012060 South Extension 10,000/ Delhi 9 22.08.2016 02012029 GTB Nagar 10,000/ Delhi 10 22.08.2016 02012030 GTB Nagar 70,000/ Delhi Total Rs.
1,45,900/
5. Plaintiff has thereafter described the entire fraudulent transaction on the basis of various documents being supplied by the defendant bank in a chronological manner in para 13 of the plaint. It is averred that the wife of plaintiff Ms Sujata Sahu applied for change of the registered address, mobile number and email ID in the records of plaintiff's bank account with defendant through email id [email protected] on 29/12/2014 accompanied by forged and fabricated copy of Voter Card NLN2156727 and PAN Card in the name of plaintiff. It is further averred that the said email was not sent through registered email [email protected] of the plaintiff with the defendant and the voter card and PAN Card does not bear registered signatures of plaintiff. None of the bank officials ever confirmed from the plaintiff either through his registered mobile number, or registered email or registered address for such fraudulent changes. After change of register email and address of the plaintiff in his bank account, Ms Sujata Sahu Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 5 of 55 applied for issuance of two cheques books to defendant without the plaintiff's registered signature and authority. Thereafter, the bank officials of defendant without any mandate, authority and signature of the plaintiff sent the cheque books through post on 09.02.2015 at the new address of A - 36, Katwaria Sarai, Delhi, which were received by Ms Sujata Sahu. Ms. Sujata Sahu then got Rs 54,000/ redeemed from Tata Mutual Fund into plaintiff's bank account with defendant on 05/07/2016 through use of forged transaction slip. Ms. Sujata Sahu then withdrew Rs. 10,000/ on 11.07.2016 and Rs. 10,000/ on 12.07.2016 from defendant's branch at Dehradun, Rs. 10,000/ on 12.07.2016 and Rs. 10,000/ on 13.07.2016 from defendant's branch at Abjabpur, Dehradun, Rs. 10,000/ on 15.07.2016 from defendant's branch at Panchkula, Harayana and Rs. 3500/ on 25.07.2016 from defendant's branch at Abjabpur, Dehradun by forging the signatures of the plaintiff on the cheques. Ms. Sujata Sahu further got Rs. 88996.15 redeemed from SBI Mutual fund to plaintiff's bank account with defendant on 19.08.2016 through use of forge transaction slip. It is further averred that Ms. Sujata Sahu then withdrew Rs. 10,000/ on 20.08.2016 from defendant's branch at South Ext. Delhi, Rs. 10,000/ on 22.08.2016 from defendant's branch at GTB Nagar, Delhi and got transferred Rs. 70,000/ on 22.08.2016 from defendant's branch at GTB Nagar, Delhi to bank account no.
915010056698806 of Axis Bank, Khan Market Delhi, in the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 6 of 55 name of one Shweta Kapur by forging the signatures of the plaintiff on the cheques. Plaintiff further stated that the said transactions were allowed by the defendant without comparing plaintiff's signatures existing in defendant's record with the forge signatures done on the cheques by Sujata Sahu. Plaintiff has therefore filed various complaints to the police authorities and instituted criminal complaint before the appropriate court. Plaintiff has also sent a legal notice dated 09.11.2016 to the defendant through his counsel for refund of sum of Rs. 1,45,900/. Thereafter FIR No. 648 dated 02.09.2017 U/s 420/468/471 IPC was also lodged pursuent to order of competent court in CC No. 12356/2016. Plaintiff has thereafter filed the present suit claiming an amount of Rs. 1,45,900/ as amount fraudulently allowed to be withdrawn, Rs. 20,484 as loss of interest, Rs. 49,500 as advocate fees for instituting criminal case and issuing legal notice and Rs. 50,000/ for the pain, suffering, etc. thereby plaintiff has filed the present suit for compensation of total amount of Rs. 2,65,884/ along with interest @ 12% per annum from the date of filing of the suit till the decree.
PRAYER:
6. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(a) That a decree may kindly be passed in the favour of Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 7 of 55 the plaintiff and against the defendant thereby ordering the defendant to pay to the plaintiff a compensation of Rs. 2,65,884/.
(b) That a decree may kindly be passed in favour of the plaintiff and against the defendant thereby ordering the defendant to pay pendente lite and future interest at the rate of 12@ per annum on the said amount of Rs.
2,65,884/ from the date of suit till the date of decree and thereafter till the realization of compensation by the plaintiff from the defendant.
(c) That a decree may kindly be passed in the favour of the plaintiff and against the defendant thereby awarding the cost of the suit.
DEFENCE :
7. Defendant has filed written statement. Defendant has taken various preliminary objections in its WS. Firstly, the suit of the plaintiff is not maintainable. Secondly, plaintiff himself is guilty of negligence and carelessness. Thirdly, the suit of the plaintiff is liable to be dismissed on the ground of nonimpleadment of necessary and proper parties, namely, Ms. Sujata Sahu, Ms. Priyanka Tyagi, Vodafone, HDFC Bank, etc. Fourthly, plaintiff has not disclosed the relevant facts and documents and therefore, is guilty of playing fraud upon this court. Fifthly, the suit of the plaintiff is not maintainable as the present court does Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 8 of 55 not have territorial jurisdiction to try the present suit. Sixthly, the present suit is filed without any cause of action. Seventhly, plaintiff has not come to the court with clean hand and is guilty of concealments and suppression of material facts.
8. On merits, the defendants has denied the averrments with respect to SBI Mututal Funds and Tata mutual funds due to want of knowledge. Defendant further stated that defendant has duly sent SMS /text message in Feb. 2015 at the registered mobile no. of the plaintiff and therefore, defendant has acted in normal course of business throughout. It is further case of the defendant that the withdrawal from plaintiff's bank account with defendant has been done by the plaintiff's legal wife. However, plaintiff has never brought to the notice of the same to the defendant bank about the illegal acts of his wife for which FIRs had already been registered. Plaintiff has therefore, committed the alleged acts in collusion with his wife. It is further stated that admittedly, plaintiff alleges that he had strained relationship with his wife since Oct.12,2008 (when FIR no. 256/2008 was registered) still the plaintiff never informed and brought the same to the knowledge of defendant's bank.
9. Defendant further stated that on receiving plaintiff's letter, the defendant bank replied vide letter dated 22.09.2016 with all documents which were available with its branches. Defendant Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 9 of 55 has further admitted the contents of Para No. 11 & 12 of the plaint to the extent that the defendant through their letter dated 17.09.2016 issued by GTB Nagar Branch, Delhi, in person to the plaintiff admitted that alleged fraud has been committed by plaintiff's wife Ms. Sujata Sahu, impersonating as plaintiff's sister Ms. Neha Kabdaula and withdrew/transferred a total sum of Rs. 80,000/ through two transactions on 22.08.2016. However, the defendant has denied the change and address of the plaintiff in their system without any mandate, authority and signature of the plaintiff. The defendant bank also denied that it issued new cheque book and sent the same through registered post on 09.02.2015 at the new address without any mandate, authority and signature of the plaintiff. It is further stated that plaintiff's request was received via email and voter ICard was submitted as documentary proof, with defendant and therefore defendant acted in good faith and in the normal course of business the cheque book was issued, by following all norms. Text Message were duly issued by the defendant for the new cheque book. It is further denied that defendant admitted about 10 fraudulent transactions done in the bank account of the plaintiff with defendant. It is stated that defendant only gave the detailed statement of account of plaintiff with defendant which reflect the alleged transactions. It is further stated that plaintiff along with his wife, in collusion has caused the alleged bank fraud.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 10 of 5510. It is further stated that defendant on the specific request of the plaintiff supplied the copies of email dated 29122014 and copy of voter card and PAN card of the plaintiff as received by it through email. The defendant further supplied copy of their register which shows posting of cheque book at correct address of A 36, Katwaria Sarai, Delhi. It is further stated that periodic text SMS message are duly sent at the registered mobile no. for any request made for changes in the bank record. The text message was received by plaintiff on his registered mobile no. and therefore, defendant denied that the plaintiff has not received any text SMS messages on his registered mobile number. Defendant has further denied that Ms. Sujata Sahu applied for issuance of two cheque books to defendants without the plaintiff's registered signatures and authority through unregistered email of the plaintiff for want of knowledge. It is submitted that cheque book were dispatched vide Registered Post/Letter at the registered address of the plaintiff. The said cheque books were duly received by the plaintiff in February 2015 itself as reflected from the record. Not only this the said address as mentioned i.e. A 36, Katwaria Sarai, Delhi is the address which has been mentioned in the FIR no. 648/2017 of the plaintiff/complainant. It is further stated that the officials of defendant bank works as per the norms in discharge of their official duties with utmost care and dedication and they never Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 11 of 55 indulge in any fraud.
11. In reply to para 1617 of the plaint, it is stated that appropriate action was undertaken at the defendant's end and further plaintiff has also filed appropriate complaint with Delhi Police and in furtherance of the same appropriate FIR has been registered by the Police. It is further stated that Plaintiff and alleged Ms. Sujata Sahu are hand in glove and have together committed the fraud upon defendant and others.
REPLICATION:
12. In the replication filed by the plaintiff, the contentions of the defendant have been denied in toto and the averments made in the plaint have been reiterated and reaffirmed and therefore, the same is not repeated for the sake of brevity.
ISSUES:
13. After completion of pleadings, vide order dated 12.04.2019 following issues were framed:
(i) Whether this court lacks territorial jurisdiction to try the present case ? OPD
ii) Whether the suit is bad for misjoinder of parties? OPD
iii) Whether the plaintiff is entitled to a decree for compensation of Rs. 2,65,884/, as prayed for ? OPP
iv) Whether the plaintiff is entitled to interest on the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 12 of 55 above mentioned amount i.e. Rs. 2,65,884/, if yes for what period and at what rate ?
v) Relief.
DOCUMENTS & EVIDENCE:
14.In support of the case of the plaintiff, plaintiff has examined himself as PW1 by way of affidavit Ex.PW1/A wherein the plaintiff has repeated the contents of the plaint and same is not repeated for the sake of brevity. The plaintiff has further relied upon the following documents:
1.Ex. PW 1/1 is my email dt. 13.09.2016 to Tata Mutual Funds.
2. Ex. PW1/2 is my email dt. 14.09.2016 to Tata Mutual Funds.
3. Ex. PW1/3 is email dt. 15.09.2016 from Tata Mutual Funds to me.
4. Ex. PW1/4 is email dt. 19.09.2016 from Tata Mutual Funds to me.
5. Document marked A is transaction slip dt. 05.07.2016 issued by Tata Mutual Funds.
6. Ex. PW1/5 is my letter dt. 12.09.2016 to SBI Mutual Funds.
7. Ex. PW1/6 is my email dt. 13.09.2016 to SBI Mutual Funds.
8. Ex. PW1/7 is my letter dt. 21.09.2016 of SBI Mutual Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 13 of 55 Funds.
9. Marked B is transaction slip dt. 16.08.2016 of SBI Mutual Funds.
10. Ex. PW1/8 is my email dt. 13.09.2016 to defendant.
11. Ex. PW1/9 is my letter dt. 14.09.2016 to defendant.
12. Ex. PW1/10 is my email dt. 15.09.2016 to defendant.
13. Ex. PW1/11 (OSR) is letter dt. 17.09.2016 by defendant GTB Nagar Branch, Delhi .
14. Ex. PW1/12 (OSR) is document dt. 17.09.2016 by defendant GTB Nagar Branch, Delhi.
15. Ex. PW1/13 (OSR) is bank account statement of plaintiff issued by defendant.
16. Ex. PW1/14 (OSR) is certified copy of cheque dt. 22.08.2016 by defendant GTB Nagar Branch bearing forged signature of the plaintiff.
17. Ex. PW1/15 (OSR) is forged PAN card of plaintiff's sister Neha Kabdaula.
18. Ex. PW1/16 (OSR) is forged Aadhar Card of plaintiff.
19. Ex. PW1/17 (OSR) is letter dt. 22.09.2016 of defendant branch Mangamaripeta, Visakhapatnam
20. Ex. PW1/18 (OSR) is certified copy of email dt. 29.12.2014 supplied by defendant to plaintiff.
21. Ex. PW1/19 (OSR) is certified copy of forged Voter card of plaintiff supplied by defendant to plaintiff.
22. Ex. PW1/20 (OSR) is certified copy of forged PAN Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 14 of 55 card of plaintiff supplied by defendant to plaintiff.
23. Ex. PW1/21 (OSR) is certified copy of register showing posting of cheque book at false address of plaintiff by defendant, supplied by defendant to the plaintiff.
24. Ex. PW1/22 is legal notice of plaintiff to the defendant.
25. Ex. PW1/23 & Ex. PW1/24 (OSR) are postal receipts of sending legal notice.
26. Ex. PW1/25 (OSR) is reply dt. 07.12.2016 of defendant to plaintiff's notice.
27. Ex. Pw1/26 is FIR no. 648 dt. 02.09.2017 u/s 420/468/471 IPC against the defendant and another parties registered by the plaintiff.
28. Ex. PW1/27 (OSR) is plaintiff's counsel certificate of fee payment.
29. Ex. PW1/B is my affidavit u/s 65 A of Indian Evidence Act in respect of Ex. PW1/1, PW1/2, PW1/3 , PW1/4, PW1/6, PW1/8, PW1/10.
15. In his crossexamination, PW1 deposed that Ex. PW1/1 to Ex.
PW1/27 are all copies and not the originals as filed in the court records and hence they be deexhibited. He further deposed that most of the correspondence is by plaintiff with Tata Mutual Funds and SBI mutual Funds which are not parties in the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 15 of 55 present suit.
16. During further crossexamination, PW1 deposed that the present suit which he has filed is for damages incurred because of negligence of duties of bank staff. He further deposed that he does not recollect the date, month, year of filing of the present suit. As on date, he has been posted at Vishakhapatnam from April 2018. He further deposed that he has not deposited any amount of money with defendant since 2014. He further deposed that funds were redeemed from SBI and Tata Mutual fund into defendant bank which was without his consent and knowledge too. He further deposed that he does not remember the date, month and year as to when SBI and Tata Mutual Fund had deposited/redeemed in his account with defendant. PW1 further admitted that the present suit has not been filed against SBI Mutual Fund and Tata Mutual Fund. PW1 further admitted that the present suit has not been filed against Ms. Sujata Sahu( his exwife). He further deposed that he has filed criminal case against Ms. Sujata Sahu (his exwife). He further deposed that he does not remember whether he has filed the criminal case against, defendant, SBI Mutual Fund and Tata Mutual Fund. He further deposed that he does not remember the exact date, month and year when the fraud was committed. He deposed that Ms. Sujata Sahu (his exwife) has committed the fraud. He further deposed that Ms. Sujata Sahu (his exwife) has Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 16 of 55 obtained cheque book from Union Bank and has defrauded his signatures and withdrew money amounting to Rs. 1,45,900/ from various locations in India. He further deposed that Ms. Sujata Sahu(his exwife) had committed the fraud of withdrawing money on number of occasions.
17. During crossexamination, PW1 deposed that he has not filed any original documents in the present suit. He voluntarily deposed that the reason for the same is there is ongoing FIR against Ms. Sujata Sahu. He further deposed that he has filed the certified copy of the FIR Ex.PW1/26. At this stage, Ex.PW1/26 is shown to the witness and he again confirms that the copy is a certified copy. PW1 further deposed that he does not remember exact date when the FIR was lodged and the said FIR was filed in Delhi at Mukherjee Nagar police station.
18. During further crossexamination, PW1 denied the suggestion that he gave signed cheques to his exwife i.e. Ms. Sujata Sahu. PW1 further denied the suggestion that he gave complete signed cheque book consisting of many leaflets to his wife for withdrawing the money and to commit fraud. PW1 further denied suggestion that he had knowledge for the period of one and half year of his wife withdrawing money from the defendant bank. He deposed that he has filed the present suit against Union Bank of India, Mangamaripeta Branch, Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 17 of 55 Vishkhapatnam and he was posted in Cochin during January, 2015 to December, 2016. He further deposed that he never visited the defendant branch during January, 2015 to December, 2016. He further deposed that he never received any SMS intimation of various transactions as the details (mobile, email id and address) were already changed without his consent and knowledge. He further deposed that he presumed that Ms. Sujata Sahu has changed the details. He again said the said details were changed by the defendant as Ms. Sujata Sahu herself could not have changed the said details. He further deposed that he never received any intimation when the details were changed. He further deposed that he does not remember exactly the date, month and year when the fraud was committed by Ms. Sujata Sahu, however, the details are placed on record. PW1 denied that funds were transferred from Tata Mutual Funds and SBI Mutual Funds to his account with the defendant bank on his direction. He deposed that no intimation was received by him for above stated funds transfer. He further deposed that he has not filed any civil and/ or criminal cases against Tata Mutual Funds and SBI Mutual Funds till date. PW 1 admitted that he has not made Tata Mutual Funds and SBI Mutual Funds as necessary and proper party in the present suit. He further deposed that he had filed a civil case against Ms. Sujata Sahu in Cochin in 2014 and there are various civil as well as criminal cases filed against Ms. Sujata Sahu. He further Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 18 of 55 deposed that he is not aware about the status as well as who has filed those cases. He further admitted that in the present case, he has not asked for any relief against Tata Mutual Funds and SBI Mutual Funds.
19. During further crossexamination, PW1 deposed that he cannot produce any document to show that he had intimated defendant, Tata Mutual Funds and SBI Mutual Funds about the change of his details. He voluntarily deposed that he cannot produce the documents as he never asked to the defendant, Tata Mutual Funds and SBI Mutual Funds to change his details. He further stated that his wife had changed the details. He further stated that he does not remember if he has filed his PAN card and Aadhar card in the present case. He further stated that he does not remember if he has filed documents as mentioned in his affidavit at para no. 6. At this stage, the witness was shown the court file and he stated that he has not filed the documents of the cases as mentioned in para no. 6 in his affidavit. PW1 further denied the suggestion that there was no negligence of defendant bank. PW1 further denied the suggestion that on 11.02.2016, he received any intimation from the defendant bank regarding the withdrawal of Rs.54,000/ and Rs. 88,996.15/. PW1 further denied the suggestion that he was aware that Ms. Sujata Sahu was forging his signatures and committing frauds with various other people/ institutions. PW1 admitted that Ms. Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 19 of 55 Sujata Sahu had committed frauds in the instant case over a period of time of 15 months. He voluntarily stated that however, he came to know about the frauds only after the same was committed. PW1 further denied the suggestion that the defendant bank followed all the practice and procedures when the funds were withdrawn. PW1 further denied the suggestion that he has taken active part in collusion with Ms. Sujata Sahu to withdraw the funds from his account on various dates. PW1 further denied the suggestion that on 09.02.2015, he had requested the defendant bank for issuing a new cheque book. PW1 further denied the suggestion that he has been regularly updating his passbook with the defendant bank. PW1 further admitted that the present case not been filed against the branch at G.T.B Nagar of Delhi, Union Bank of India. PW1 further denied that defendant is not liable to pay any damages. PW1 further denied the suggestion that he has filed a false case. PW 1 further denied the suggestion that the is deposing falsely.
20. In defence, defendant has examined Mr. Garlapally Shiva Prakash as DW1 by way of affidavit Ex.DW1/A wherein DW1 has repeated the contents of the written statement and same is not repeated for the sake of brevity. DW1 has further relied upon power of attorney is exhibited as Ex. DW1/1 (OSR).
21.During crossexamination, DW1 deposed that he joined Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 20 of 55 defendant branch as Branch Head on 01.03.2017 and he joined the same branch as a Manager on 24.10.2016. DW1 admitted that he does not have any personal knowledge regarding transactions done in the bank account of plaintiff with defendant between the period 29.12.2014 till 22.08.2016 and he has filed his affidavit in evidence and he is deposing before the Hon'ble Court on the basis of records available. DW1 was put a suggestion if is it correct that before 29.12.2014, the plaintiff has registered his mobile number 9703280679, email Id cabbierulz @gmail.com and local address of Visakhapatnam in his bank account with defendant. DW1 answered that he was not working in the said branch during the said period and without seeing the official documents, he could not reply. DW 1 was further put a suggestion if it is correct that he has not brought the full record of the plaintiff's bank account with defendant today before the Hon'ble Court. He replied that he has not brought any record as he was not directed to bring any record today. He deposed that all documents must have been filed by the plaintiff in the present suit as it is his suit for recovery. DW1 further admitted that the defendant has sent reply dated 22.09.2016 Ex. PW1/17 alongwith Ex. PW1/18, Ex. PW1/19, Ex. PW1/20 & Ex. PW1/21 as it bears the stamp of the bank. The said exhibits were however objected as the same are the photocopies. DW1 was put a suggestion if it is correct that on or after 29/12/2014, defendant changed the plaintiff's mobile Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 21 of 55 number, email Id and address in the plaintiff's account with defendant on the basis of Ex. PW1/18, Ex. PW1/19 & Ex. PW1/20. DW1 replied that he does not have personal knowledge of the same.
22.During further crossexamination, a question was put to DW1 that he has stated in his affidavit evidence at para no. 15 that defendant received plaintiff's letter and submitted its reply dated 22.09.2016 with all documents, is it correct that the said plaintiff's letter is Ex. PW1/9 and said reply with documents are Ex. PW1/18 to Ex. PW1/20. DW1 replied in affirmative. DW1 further deposed that he does not have personal knowledge of any of the contents mentioned in his affidavit as the events occurred prior to his joining which includes para no. 16 of his affidavit and thus he cannot say on the basis of which documents the said statement as mentioned in para no. 16 has been given. DW1 deposed that Ex. PW1/11 to Ex. PW1/16 pertain to GTB Nagar branch of defendant, New Delhi and only photocopies were supplied to them on the basis of which he has made statement regarding the said documents in para no. 16 of his affidavit.
23. During further crossexamination, DW1 admitted that email dated 29.12.2014 Ex. PW1/18 received by the defendant was from email Id [email protected] and not from Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 22 of 55 registered email Id of plaintiff with the defendant which was [email protected]. DW1 further admitted that Ex. PW1/18 is an email which cannot have the signature of plaintiff and does not bear the signature of plaintiff. DW1 further admitted that Ex. PW1/19 & Ex. PW1/20 do not bear the signature of plaintiff. DW1 further stated that the signatures in the PAN card Ex. PW1/20 at point A was tallied with the bank record signatures and it was the same signatures of the plaintiff.
24.During further crossexamination, DW1 denied the suggestion that signature at point A on Ex.PW1/20 is wholly different from the signature of the plaintiff existing on bank record. He deposed that he does not have any knowledge whether the plaintiff had availed any Internet banking facility in his bank account with defendant. DW1 admitted that he does not have any bank record with the signature of the plaintiff i.e. any application or form filed/signed by the plaintiff for change of his mobile number, email ID and address in his bank account with the defendant. DW1 denied the suggestion that defendant affected change of mobile number, email ID and address in his bank account with defendant without his signature or mandate. DW1 denied the suggestion that plaintiff never applied to the defendant for affecting aforesaid changes in his mobile number, email ID and address in his bank account. DW1 admitted that he has not brought any record of the defendant which shows Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 23 of 55 that the plaintiff was informed through defendant's letter/email or SMS or any other means as his registered mobile number, email ID and address on or after 29.12.2014 about the change of his mobile number, email ID and address in his bank account with the defendant. DW1 denied the suggestion that defendant acted in most fraudulent and negligent way while affecting change of plaintiff's mobile number, email ID and address in his bank account with the defendant. He voluntarily stated that as a banking practice, usually and at all times, SMS alerts are issued to the customer/account holder about any transaction (issuance of cheque book, change of address etc.) through the central office by way of SMS generated automatically. DW1 admitted that he has not brought any defendant's record regarding the said sending of automatic SMS to the plaintiff in respect of change of his address, email ID and mobile number or issuance of cheque book. DW1 admitted that he has not brought any defendant's record in respect of any application filed by the plaintiff to the defendant or any "cheque book requisition slip"
from plaintiff's previous cheque book and duly signed with signature as per bank record demanding issuance of new cheque books between the period of December 2014 to February 2015. He further stated that he cannot say whether the defendant supplied copies of any such application or cheque book requisition slip to the plaintiff along with its letter Ex. PW1/17. DW1 admitted that the cheque books were posted at the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 24 of 55 changed address of Katwariya Sarai, New Delhi and not to the address of Vishakapatnam of the plaintiff as registered before 29.12.2014. He voluntarily stated that the bank had sent the cheque book at the new registered address with the bank. He further deposed that he does not know to which address of the plaintiff SMS and emails were sent regarding the issuance of cheque book as the same were sent by the central office. He further deposed that he does not have any record of the aforesaid SMS/emails as the same are sent by the central office. DW1 was asked if he has any defendants record or record of the post office in respect of registered post dated 09.02.2015, RN no. 948807113/IN bearing the signature of the plaintiff as per bank's record in respect of receipt of cheque books posted in February 2015. He replied that he only knows that the above was posted and duly delivered. DW1 denied the suggestion that defendant had acted in fraudulent and negligent ways while issuing cheque book in February 2015. DW1 also denied the suggestion that plaintiff never applied to the defendant for issuance of cheque books between the period of December 2014 to February 2015. DW1 further denied that the plaintiff never received the cheque book sent by the defendant as aforesaid.
25. During further crossexamination, a suggestion was put to DW 1 if plaintiff or any jurisdic person like SBI Funds Management Pvt. Ltd. or TATA Asset Management Ltd. can deposit or Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 25 of 55 redeem money in the bank account of the plaintiff with defendant either by defendant's deposit bank slip or online bank transfer by correctly filling the name & account number. DW1 replied that if the plaintiff has given his bank account details to any jurisdic person like SBI Funds Management Pvt. Ltd. or TATA Asset Management Ltd. to deposit any amount in his bank account with defendant as per banking practice, it is transferred directly. DW1 was further given a suggestion if such deposit or redemption of money do not need signature or consent of the plaintiff. DW1 replied that as per his knowledge for depositing any amount, signature of plaintiff is not required as per banking practice but for redemption of money, plaintiff has to give written consent to the third party who in turn transfers the fund to the bank. DW1 was further given a suggestion if defendant do not require any signature or consent of the plaintiff for redemption of money by any third party in the bank account of the plaintiff with defendant. DW1 replied that yes, it is not required. He voluntarily stated that it depends on the policy of each third party.
26. DW1 replied in negative when he was asked if he has brought the ten cheques as mentioned in Ex. PW1/17 and the signature card of the plaintiff as lying with the defendant. DW1 was further asked if defendant summon all the ten cheques as mentioned in Ex. PW1/17 while investigating the case as stated Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 26 of 55 by him in para no. 20 of the affidavit. DW1 replied that he cannot say as the investigation took place before his tenure and he has not brought the investigation report as mentioned in para
20. Further, a suggestion was put to DW1 that all the ten transactions dated 12/02/2015 to 22/08/2016 as mentioned in Ex. PW1/17 has been done on the basis of cheques from cheque book issued by defendant in February 2015. DW1 replied that as per Ex. PW1/17, the cheque numbers mentioned are in series and thus it is presumed that they belong to the same cheque book.
27. During further crossexamination, a suggestion was put to DW 1 if none of the said ten cheques as mentioned in Ex. PW1/17 had been signed by the plaintiff as per the record of the defendant. He replied that he cannot say as he has not seen the cheques in question. He voluntarily deposed that as the cheques were encashed at different branches, the concerned branch managers must have checked the signatures of the plaintiff on the cheques before encashment. DW1 further denied the suggestion that all the said ten cheques had forged signatures of plaintiff which were wholly different from the signature of the plaintiff existing in the bank record. DW1 further denied the suggestion that the defendant has knowingly, intentionally and fraudulently not filed & exhibited the said ten cheques and the signature card of the plaintiff from the record of the defendant Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 27 of 55 to make false claim before the Hon'ble Court as mentioned in his affidavit. DW1 further denied the suggestion that SBI Funds Management Pvt. Ltd. and TATA Asset Management Ltd. are proper and necessary party to the present suit. DW1 further denied the suggestion Sujata Sahu impersonating as plaintiff's sister Neha Kabdaula committed the aforesaid fraudulent transactions in the account of the plaintiff with defendant in connivance with officials of defendant. DW1 further denied the suggestion it was the responsibility and liability of the defendant to act and file FIR against Sujata Sahu and initiate disciplinary proceedings against its officials who approved the aforesaid fraudulent transactions on coming to know from the emails and letters from the plaintiff and finally through legal notice Ex. PW1/22. DW1 further denied the suggestion that the alleged fraudulent change of registered mobile, email ID and address of the plaintiff on 29.12.2014 by the defendant prevented the plaintiff from knowing about the alleged fraudulent transaction on the dates of their happening. DW1 further denied the suggestion that plaintiff came to know about the aforesaid alleged fraudulent transaction for the first time only on 11.09.2016 and thereafter to every possible extent. DW1 further denied the suggestion that defendant is liable for the suit amount, loss of interest, advocate fee, expenses incurred in filing and prosecuting CC no. 12356/16 for registration of FIR and cost of the proceedings due to nonaction of defendant Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 28 of 55 on plaintiff's letter, email and legal notice. DW1 further denied the suggestion that plaintiff was neither negligent nor careless during the happening of aforesaid transactions. DW1 further denied the suggestion that aforesaid fraud in the bank account of plaintiff with the defendant happened entirely due to defendant and his officials. DW1 further denied the suggestion his entire affidavit and his deposition before the Hon'ble Court is based on his surmises and conjectures and not on the basis of any defendant's record of the plaintiff's bank account. DW1 further denied the suggestion he was deposing falsely.
FINAL ARGUMENTS:
28. Final arguments were heard at length on behalf of both the sides.
FINDINGS OF THE COURT:
29. My issuewise findings are as under:
Issue (i) Whether this court lacks territorial jurisdiction to try the present case ? OPD
30. The onus to prove the present issue was upon the defendant. It is the case of the defendant that this court has no territorial jurisdiction to try and entertain the present suit. A preliminary objection was taken in the written statement to the effect that no cause of action arose within the territorial jurisdiction of this Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 29 of 55 court. It is the case of the defendant bank that plaintiff's bank account is predominantly and principally operated from Union Bank of India, Manglapatnam, Vishakhapatnam Branch at Andhra Pradesh. It is further case of the defendant that as per section 20 of CPC, the suit shall be instituted in the place where Defendant has its principal office. Further, the plaintiff himself is not posted at Delhi and he is posted at Port Blair and thus, territorial jurisdiction vests with the District Court at Visakhapatnam, Andhra Pradesh and not Delhi. Per contra, plaintiff has vehemently argued that the cause of action also arose in New Delhi and therefore, this court has jurisdiction to try and adjudicate the present suit in view of the facts of the present case. It was submitted by the plaintiff that the defendant bank has its various branches at Delhi and therefore, in view of the Explanation to Section 20 of CPC, whereunder a corporation is deemed to carry on business in respect of cause of action arising at any place where it has a subordinate office, this Court has territorial jurisdiction in the present matter.
31. Section 20 of CPC may be reproduced herewith as follows: "20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (a) the defendant, or each of the defendants where there are more than one, Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 30 of 55 at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises.
[Explanation].--A corporation shall be deemed to carry on business at its sole or principal office in 3 [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
32. A bare perusal of Explanation to section 20 of CPC clearly shows that where a corporation has a subordinate office in the place where the cause of action arises, it can be sued at that place. Reference may be drawn of the judgment of Hon'ble Supreme Court in Patel Roadways Ltd. v. Prasad Trading Co., (1991) 4 SCC 270, wherein the Hon'ble Ape Court explained the law with regard to explanation to section 20, CPC. Para 13 of the said judgment may be reproduced herewith as follows: Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 31 of 55 "13. As far as we can see the interpretation which we have placed on this section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation. It is true that, normally, under clauses (a) to (c), the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the corporation and can file a suit at a place where the cause of action arises. If a corporation desires to be protected from being dragged into litigation at some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been done in the present case. The clear intendment of the Explanation, however, is that, where the corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient to the plaintiff; and since the corporation has an office at such place, it will also be under no disadvantage. Thus the Explanation provides an alternative locus for the corporation's place of business, not an additional one."
33. Therefore, in a case where defendant company/corporation has its principal office at one place and subordinate office at another place and cause of action arises at the place where the subordinate office is located, it is held that suit has to be filed only in the court within whose jurisdiction the company/corporation has its subordinate office and not in court Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 32 of 55 within whose jurisdiction it has its principal office. The case of the plaintiff is based on the averments that his wife has committed fraud and withdrew a total sum of Rs. 1,45,900/ from the plaintiff's bank account, being maintained with defendant branch and the defendant bank allowed withdrawal of plaintiff's funds from his bank account without plaintiff's mandate, authority and signature on cheques. It is the case of the plaintiff that the said amount was withdrawn/transferred by his wife from different locations/branches of defendant bank. Out of the said sum of Rs. 1,45,900/, a sum of Rs. 80,000/ was being transferred through two transactions on 22.08.2016 from defendant's branch at G.T.B, Nagar, Delhi. Plaintiff has relied on letter dated 17.09.2016 i.e Ex. PW 1/11 and document dated 17.09.2016, exhibited as Ex. PW1/12, issued by defendant G.T.B Nagar branch. Plaintiff has also relied on certified copy of cheque dated 22.08.2016, by defendant GTB Nagar Branch, bearing forged signature of the plaintiff exhibited as Ex. PW1/14. Ld counsel for defendant bank has vehemently raised objection w.r.t admissibility of said document on the ground that the same are photocopies. However, DW1 during cross examination has deposed that documents exhibited as Ex. PW1/11 to Ex. PW1/16 pertain to G.T.B Nagar Branch of defendant and only on the basis of photocopy, DW1 made statement regarding the said document in para No. 16 of his affidavit. In para No. 16 of his evidence Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 33 of 55 by way of affidavit, DW1 has deposed that defendant through their letter dated 17.09.2016, issued by G.T.B, Nagar Branch, Delhi in person to the plaintiff intimated that plaintiff's wife Sujata Sahu impersonating as plaintiff's sister Neha Kabdaula and withdrew/transferred a total of Rs. 80,000/ through two transactions on 22.08.2016. It is further deposed by DW1 that the bank has verified the photographs of Ms Sujata Sahu as the same person, who did the entire transaction. It is also deposed by DW1 the defendant provided the copies of documents to plaintiff. Therefore, in view of the clear admission on the part of the defendant bank regarding issuance of letter by G.T.B Branch, Delhi of defendant bank, the objection of ld counsel for defendant that the said documents are not admissible being photocopies is not tenable as per law.
34. A perusal of letter dated 17.09.2016, issued by G.T.B Nagar, Branch, New Delhi i.e Ex. PW1/11 clearly shows that fraud has been committed by someone impersonating as Ms Neha Kabdula on 20.08.2016 and withdrew Rs.10,000/ in cash and transferred an amount of Rs. 70,000/ into some other bank account. The Hon'ble Delhi High Court in Lohia Starlinger Ltd. And another Vs. Government of N.C.T of Delhi and others, (2006) V AD(Del) 732, observed that it is not every fact pleaded by litigant which gives rise to a cause of action and only such facts as are necessary to adjudicate upon the lis would Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 34 of 55 constitute a cause of action conferring territorial jurisdiction. Coming to the facts of the present case, there is no doubt to the fact that a considerable sum i.e Rs. 80,000/ out of total amount of Rs. 1,45,900/ is withdrawn/transferred from G.T.B Nagar, Branch, New Delhi. Accordingly, it can safely be concluded that part of the cause of action arose within territorial jurisdiction of this court and therefore this Court will have jurisdiction in the present matter.
35. Accordingly, issue no (i) is decided in favour of the plaintiff and against the defendant.
Issue 2: Whether the suit is bad for misjoinder of parties? OPD
36.The onus to prove this issue is upon the defendant. It is the case of the defendant bank that FIR No 648 of 2017 reflects that plaintiff's address is A36, Katwaria Sarai, Delhi and it was on 23/07/2016, the plaintiff's mobile got deactivated and therefore, the mobile operator of Vodafone should have been impleaded as necessary and proper party. It is further contended that the wife of plaintiff, i.e., Ms Sujata Sahu was instrumental in all illegal activities which were committed allegedly in July 2016 onwards with plaintiff's mobile operator, plaintiff's SBI Mutual Funds, Plaintiff's Tata Mutual Funds, Plaintiff's HDFC Bank Account, Plaintiff's Union Bank Account etc. Defendant bank Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 35 of 55 has therefore contended that plaintiff has not impleaded the alleged Mr Satish (representative of Vodafonemobile operator), his wife namely Ms Sujata Sahu, Ms Priyanka Tyagi, Ms Shweta Kapur, Ms Neha Kabdaula, SBI Funds Management Limited, Tata Assets Management Private Limited who are necessary and proper parties and therefore, the suit is bad for misjoinder of necessary/proper parties.
37.Per contra, plaintiff has denied the said contention of the defendant bank and stated that the police officials during the registration of FIR No 648/2017 has committed mistake and falsely gave the address of the plaintiff as A36, Katwaria Sarai, Delhi and it is further stated that the deactivation of the mobile on 23.07.2016 has nothing to do with the present case. Plaintiff has further stated that the case of the plaintiff is based on the averment that the defendant bank allowed withdrawal of plaintiff's funds from his bank account without plaintiff's mandate, authority and signature on cheques, and for which defendant alone is liable. It is therefore contended that the said Mr Satish (representative of Vodafonemobile operator), his wife namely Ms Sujata Sahu, Ms Priyanka Tyagi, Ms Shweta Kapur, Ms Neha Kabdaula, SBI Funds Management Limited, Tata Assets Management Private Limited are neither necessary nor proper parties.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 36 of 5538. The Hon'ble Supreme Court in Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 SCC 384 observed that "a necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree can not be passed by the court. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made." Reference may also be drawn of the judgment of Hon'ble Apex Court in Kasturi v. Iyyamperumal, (2005) 6 SCC 733, wherein the Hon'ble Apex Court laid down the two following tests for determining the question who is a necessary party. Tests are -- (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the ab sence of such party.
39.Therefore, it is wellsettled law that a necessary party is one from whom relief is claimed. A proper party is one who may be party to the suit, but from whom no relief has been claimed. The presence of necessary parties is required for the court to adjudi cate and pass an effective and complete decree granting relief to the plaintiff and in his absence, no effective decree can be passed by the court. However, the same does not hold good for Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 37 of 55 proper parties. In the absence of necessary parties, the court may dismiss the suit, as it shall not be able to pass an effective decree. But a suit can never be dismissed due to absence of non necessary/ proper parties.
40. Coming to the facts of the present case, it is the case of the plaintiff that fraud was committed by wife of the plaintiff. How ever, plaintiff has filed the present suit for compensation against the defendant bank on the ground that the bank has allowed withdrawal of the money by his wife without any mandate and authority. It is clear from the averments made in the plaint that no relief has been sought against wife Ms Sujata Sahu by plain tiff. It is the case of the plaintiff that defendant bank has admit ted the alleged fraud by wife of the plaintiff and defendant has been negligent in allowing withdrawal of funds from plaintiff's bank account being maintained with defendant. One of the de fences of defendant that the plaintiff is in collusion with his wife and allowed such withdrawals. Such contentions are how ever subject matter of evidence to be adduced by parties. But, it is clear that the cause of action of the present suit is only against the defendant bank and since there is no relief is claimed against Ms Sujata Sahu, she cannot be held to be a necessary party whose presence is required for effective decree.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 38 of 5541. Similarly, it is the case of the plaintiff that Ms Sujata Sahu re deemed Rs. 54,000/ and Rs. 88,996.15/ from Tata Mutual Fund and SBI Mutual Fund by using fraudulent means to plaintiff's bank account with defendant without any authority and signa ture of the plaintiff, still the plaintiff did not suffer much loss/damage as the money was lying in plaintiff's bank account with the defendant bank. It is further case of plaintiff that after redeeming of the said amount to the bank account of plaintiff, Ms Sujata Sahu allegedly withdrew the said money from the plaintiff's bank account with defendant. Ld counsel for defen dant bank submits that only SBI Mutual Fund and Tata Mutual Fund can reply as to how the said money is being credited to the plaintiff's bank account with the defendant bank and therefore, they become necessary and proper parties. There is no dispute to the fact that the alleged amount was transferred from tata Mutual Fund and SBI Mutual Fund to plaintiff's bank account with defendant bank. However, it is to be noted that the plain tiff's grievance is with the money being allowed to be with drawn by his wife from his bank account with defendant bank. The issue as to how the plaintiff will be able to prove his case is completely a different issue and the same is not the examination required to be done while examining whether a party is a neces sary or proper party. During crossexamination of DW1, a sug gestion was put to DW1 that if plaintiff or any juristic person like SBI Funds Management Pvt. Ltd. or TATA Asset Manage Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 39 of 55 ment Ltd. can deposit or redeem money in the bank account of the plaintiff with defendant either by defendant's deposit bank slip or online bank transfer by correctly filling the name & ac count number, DW1 deposed that if the plaintiff has given his bank account details to any juristic person like SBI Funds Man agement Pvt. Ltd. or TATA Asset Management Ltd. to deposit any amount in his bank account with defendant as per banking practice, it is transferred directly. DW1 was further given a suggestion if such deposit or redemption of money do not need signature or consent of the plaintiff. DW1 replied that as per his knowledge for depositing any amount, signature of plaintiff is not required as per banking practice but for redemption of money, plaintiff has to give written consent to the third party who in turn transfers the fund to the bank. Therefore, from crossexamination of DW1, it is clear that TATA Mutual Fund and SBI Mutual Fund is well within their rights to transfer the money/fund directly to the bank account of plaintiff being maintained with the defendant bank. Even assuming the fact that plaintiff gave the consent to transfer the fund to his bank account with defendant bank, the defendant bank cannot shed away from its responsibility from allowing withdrawal except without rules and regulations in this regard. The presence of Tata Mutual Fund and SBI Mutual Fund is therefore in my con sidered opinion is not required to adjudicate the matter in con Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 40 of 55 troversy in the present suit and therefore, they are neither neces sary nor proper parties.
42. Ld counsel for defendant has thereafter also contended that one Mr Satish (representative of Vodafonemobile operator), Ms Priyanka Tyagi, Ms Shweta Kapur, Ms Neha Kabdaula, are also necessary and proper parties and therefore, the suit is bad for misjoinder of necessary/proper parties. On perusal of the plaint, it appears that as pr the case of plaintiff, Ms Shweta Kapoor is the name of the person in whose name the wife of the plaintiff Ms Sujata Sahu transferred a sum of Rs 70,000/ from Defen dant's branch at GTB Nagar, Delhi to one bank account belong ing to the said Ms Shweta Kapur. The defendant has failed to explain as to how the presence of the said Ms Shweta Kapur is necessary for effective disposal of the case. Plaintiff being dominus litis can not be compelled to any third person or stranger against whom he/she does not want to bring a suit. Similarly, Neha Kabdaula is the sister of the plaintiff whose name was impersonated by the wife of the plaintiff for with drawal of the alleged sum of Rs 80,000/ on 22.08.2016. The presence of Neha Kabdaula may help the plaintiff to prove his case, but it cannot be said that her presence is required for dis posal of the present case. Similarly, the defendant has failed to explain as to how the representative of Vodafone company is Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 41 of 55 necessary/proper party in the present suit. Hence, Mr Satish (representative of Vodafonemobile operator), Ms Sujata Sahu, Ms Priyanka Tyagi, Ms Shweta Kapur, Ms Neha Kabdaula, SBI Funds Management Limited, Tata Assets Management Private Limited are neither necessary parties nor proper parties and hence the suit is not bad for non joinder/mis joinder of parties.
43. Issue no (ii) is accordingly decided in favour of plaintiff and against the defendant.
Issue (iii): Whether the plaintiff is entitled to a decree for compen sation of Rs.2,65,884/, as prayed for ? OPP
44. The onus to prove this issue is upon the plaintiff. Before dis cussing this issue, let us discuss the objection raised by Ld counsel for defendant bank regarding documents being relied by plaintiff. Ld counsel for defendant raised objection on the mode of proof of documentary evidences exhibited as Ex PW 1/1 to Ex PW 1/27 on the ground that the originals of the said docu ments are not filed in the court records and most of the corre spondences is by plaintiff with Tata Mutual Funds and SBI Mu tual Funds which are not parties in the present suit. A perusal of record shows that PW1/1 to PW1/7 are copies of emails Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 42 of 55 sent by plaintiff to Tata Mutual Funds and SBI Mutual Funds. Plaintiff has filed affidavit Ex PW 1/B under section 65A of Indian Evidence Act, 1872. Therefore, the documents exhib ited as Ex PW1/1 to Ex PW1/7 are proved as per law. How ever, documents exhibited as MarkA and MarkB are transac tion slip issued by Tata Mutual Fund and SBI Mutual Funds. Plaintiff has not brought any witness from either Tata Mutual Funds or SBI Mutual Funds to depose the same during evidence and therefore, the same are not proved as per law. Similarly, Ex PW1/8 and Ex PW1/10 are copies of email addresses by plaintiff to defendant bank. Plaintiff has filed affidavit Ex PW 1/B under section 65A of Indian Evidence Act, 1872. There fore, the documents exhibited as Ex PW1/8 and Ex PW1/10 are proved as per law. DW1 replied in affirmative when a sug gestion was put to him that he has stated in his affidavit ev idence at para no. 15 that defendant received plaintiff's letter and submitted its reply dated 22.09.2016 with all documents, the said plaintiff's letter is Ex.PW1/9 and said reply with docu ments are Ex.PW1/18 to Ex.PW1/20. Therefore, defendant has categorically admitted Ex.PW1/9 and Ex.PW1/18 to Ex.PW1/20. Ex PW1/11 to PW1/21 are the documents whose originals were produced by the plaintiff during evidence. More over, Ex PW1/11/ to PW1/16 have already been admitted by DW1 who has categorically stated during crossexamination that the said documents pertain to defendant's GTB Nagar Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 43 of 55 Branch of New Delhi. Therefore, Ex PW1/11 to PW1/21 are proved as per law. Ex PW1/22 is legal notice and Ex PW1/23 & Ex PW1/24 are postal receipts. Therefore, the receipt of le gal notice dated 09.11.2016 stands proved. Moreover, defendant has also not denied the receipt of legal notice in its WS. Ex PW 1/26 is copy of FIR No 648 dated 02.09.2017 lodged by the plaintiff. Though, the said Ex. PW1/26 has not been proved as per law, the defendant bank has not denied the same and heavily relied on the said FIR in its defense.
45. It is the case of plaintiff that the defendant bank allowed with drawal of Rs 1,45,900/ by wife of plaintiff without the mandate and authority of the plaintiff. In order to prove his case, plaintiff has produced himself as witness and deposed before the court. It is admitted fact that the plaintiff was having savings bank account in the defendant's bank since July 2011. Plaintiff has deposed that he had registered his mobile no. 9703280679, email id [email protected] and local address of Visakhapatnam with defendant bank. During crossexamination of DW1, a suggestion was given to him if it is correct that be fore 29.12.2014, the plaintiff has registered his mobile number 9703280679, email Id cabbierulz @gmail.com and local address of Visakhapatnam in his bank account with defendant. DW1 deposed that he was not working in the said branch during the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 44 of 55 said period and without seeing the official documents, he cannot reply. He further deposed that he had not brought any record during his deposition. Defendant bank has also not denied the said averment in its WS. Therefore, it can safely be concluded that plaintiff did register his mobile no. as 9703280679, email id as [email protected] and local address of Visakhapatnam with defendant bank in his savings bank account since July 2011. It is further case of plaintiff that his wife Ms Sujata Sahu applied for change of the registered address, mobile number and email ID in the records of plaintiff's bank account with defen dant through email id [email protected] on 29/12/2014 accompanied by forged and fabricated copy of Voter Card NLN2156727 and PAN Card in the name of plain tiff. DW1 has categorically admitted during crossexamination that email dated 29.12.2014, i.e., Ex. PW1/18 received by the defendant was from email Id ravikirankabdaula@ gmail.com and not from registered email Id of plaintiff with the defendant which was [email protected]. A perusal of the Ex PW 1/18 shows that an email was addressed to defendant bank with a request to change the address and email I'd. It transpires that the address and email I'd of plaintiff was thereafter changed by the defendant bank in their record. It is therefore proved that the said details was changed by the defendant bank on the basis of email exhibited as PW1/18 which was sent from unregis tered email, i.e., [email protected]. Defendant Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 45 of 55 bank has not brought anything in evidence which shows that such an action on the part of the bank to change the details of the bank account of the plaintiff was done as per rules in this re gard. The only defense which was taken by the defendant bank that the said email dated 29/12/2014 was sent to defendant bank with voter I'd card and PAN card of the plaintiff exhibited as Ex PW1/19 and PW1/20. Plaintiff has deposed that Ex PW1/19 and Ex PW1/20 do not bear his registered signature with defendant. DW1 also in his crossexamination admitted that Ex PW1/19 and Ex PW1/20 do not bear the signature of plaintiff. However, it is further deposed by DW1 that the signa tures in the PAN card Ex. PW1/20 at point A was tallied with the bank record signatures and it was the same signatures of the plaintiff. The said statement of the DW1 cannot be relied on in view of the clear admission on part of DW1 that he has de posed without any record of the plaintiff's bank account. Fur ther, defendant bank has not produced any document to prove that the signature on the PAN card is the same as per the record of defendant bank. It was obviously easier for the defendant bank to produce the signature of the plaintiff as available in its record to prove that the signature on the PAN card Ex PW1/20 is the same as per its record. Moreover, the defendant bank has not brought any evidence on record that the details pertaining to email I'd and address have been change pursuant to email I'd dated 29/12/2014, i.e., Ex PW1/18 as per the rules or policies Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 46 of 55 of the defendant bank. Therefore, it can safely be concluded that the defendant bank was negligent and failed to carry due dili gence and allowed the change of the address and email I'd of the plaintiff in its record on the basis of email sent from unreg istered email address.
46. It is further case of plaintiff that his wife Ms Sujata Sahu there after applied for issuance of two cheque books to defendant without the plaintiff's registered signature and authority through unregistered email of the plaintiff in their records. Thereafter, the bank officials of defendant without any mandate, authority and signature of the plaintiff sent the cheque books through post on 09.02.2015 at the new false address of A - 36, Katwaria Sarai, Delhi, which were received by Ms Sujata Sahu. The de fendant in its letter dated 22.09.2016 Ex PW1/17 also admitted that the cheque book was sent to the new address of the plaintiff as per email dated 29.12.2014 on 09.02.2015. Though, the case of defendant bank that it has issued cheque book in normal course of transaction, but as discussed hereinabove, the defen dant bank was negligent in changing the new address of the plaintiff on the basis of email Ex PW1/18 and therefore, the issuance of cheques to the new address is in continuation of acts of negligence on the part of defendant bank.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 47 of 5547. Plaintiff has further deposed that on 11.09.2016, he came to know that Tata Mutual Fund as well as SBI Mutual Fund have without any signature and authority of plaintiff illegally re deemed Rs 54,000/ and Rs 88,996.15 respectively in the plain tiff's bank account with defendant. Plaintiff has also relied on various email correspondences, i.e., Ex PW1/1 to PW1/9 in support of the same. Plaintiff has also denied the suggestion during crossexamination that the funds were transferred from Tata Mutual Funds and SBI Mutual Funds to his account on his direction. He further deposed that no intimation was received by the plaintiff for the said transfer. DW1 in his cross examination deposed that if the plaintiff has given his bank account details to any juristic person like SBI Funds Management Pvt. Ltd. or TATA Asset Management Ltd. to deposit any amount in his bank account with defendant as per banking practice, it is trans ferred directly. DW1 also deposed that as per his knowledge for depositing any amount, signature of plaintiff is not required as per banking practice but for redemption of money, plaintiff has to give written consent to the third party who in turn trans fers the fund to the bank. DW1 further replied in affirmative that defendant does not require any signature or consent of the plaintiff for redemption of money by any third party in the bank account of the plaintiff with defendant. Therefore, it is proved that an amount of Rs 54,000/ and Rs 88,996.15 was redeemed by Tata Mutual Fund and SBI Mutual Fund respectively with Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 48 of 55 out any permission and authority of the plaintiff to the bank ac count of plaintiff with defendant bank. However, it will not be out of place to mention that even assuming the fact that the said funds have been transferred by Tata Mutual Fund and SBI Mu tual Fund pursuant to plaintiff's consent or mandate, the same will not in anyway help the case of the defendant if plaintiff is able to prove that the defednnat bank has allowed withdrawal without any mandate and authority of plaintiff for the same.
48. Now, the case of plaintiff is that his wife Ms Sujata Sahu with drew a total sum of Rs 1,45,900/ from the period between 12.02.2015 to 22.08.2016 using the cheque book issued at the new address. The defendant bank in letter dated 22.09.2016 Ex PW1/17 also admitted that a total sum of Rs 1,45,900/ was withdrawn from 12.02.2015 to 22.08.2016 at different branches of defendant bank from 10 different transactions. Plaintiff has deposed that the said 10 transactions has been done by his wife using his forged signature. During his crossexamination, he also denied the suggestion that he gave signed cheques to his exwife, i.e., Ms Sujata Sahu. He further denied the suggestion that he gave complete signed cheque book consisting of many leaflets to his wife for withdrawing the money and to commit fraud. He has also denied the suggestion that he had knowledge for the period of one and half year of his wife withdrawing money from the defendant bank. On the other hand, DW1 has deposed that defendant did compare the signature with the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 49 of 55 specimen signature of plaintiff available, on the records with the defendant bank and used their reasonable degree of intelligence and skill. DW1 further deposed that the defendant did not allow the withdrawal, on the basis of alleged forged and fabricated copies of documents as projected by plaintiff. DW1 also deposed by way of affidavit in evidence that plaintiff had signed the cheques which were intentionally presented at differ ent places/cities for encashment. The burden to prove this fact that the signature on the said cheques was of the plaintiff as per the record of defendant bank is on the defendant bank. How ever, during crossexamination, when DW1 was asked if he has brought the ten cheques as mentioned in Ex. PW1/17 and the signature card of the plaintiff as lying with the defendant, DW1 replied in negative. DW1 also expressed his ignorance when he was asked if defendant summoned all the ten cheques as mentioned in Ex. PW1/17 while investigating the case as stated by you in para no. 20 of the affidavit. DW1 was further asked if it is correct that none of the said ten cheques as mentioned in Ex. PW1/17 had been signed by the plaintiff as per the record of the defendant. DW1 replied that he cannot say as he has not seen the cheques in question. He further voluntarily deposed that as the cheques were encashed at different branches, the concerned branch managers must have checked the signatures of the plaintiff on the cheques before encashment. Therefore, a perusal of crossexamination of DW1 Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 50 of 55 clearly shows that though, cheques were within the possession of the defendant but the defendant has not brought the record to prove its stand that the signature in the said cheques were of the plaintiff as per its record. The defendant bank could have simply proved this fact by producing the cheques in question, but the defendant failed to do so. Therefore, an adverse inference can be drawn against the defendant bank that the signature on the cheques were not of plaintiff as per its record. The crossexamination of the DW1 shows that the deposition of the DW1 is based on surmise and conjecture as it was deposed by DW1 that as the cheques were encashed at different branches, the concerned branch managers must have checked the signatures of the plaintiff on the cheques before encashment. Here, it is the onus of the defendant to prove that the said 10 cheques were encashed as per rules and regulations and after tallying the signature of the plaintiff as available in the record but the defendant bank has miserably failed to prove the said fact. Therefore, it is proved that the defendant bank has been negligent in allowing withdrawal of Rs 1, 45,900/ from the plaintiff's bank account with defendant from 12.02.2015 to 22.08.2016. Therefore, plaintiff is entitled to refund or compensation of Rs 1,45,900/ from the defendant bank.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 51 of 5549. Plaintiff has also claimed a sum of Rs 20,484/ on account of loss of interest, Rs 49,500/ as advocate fee and Rs 50,000/ as pain, suffering, loss of days, travel expenses etc. With respect to loss of interest, reference may be drawn of the judgment of Hon'ble Supreme Court of Mahabir Prasad Rungta v. Durga Datta, (1961) 3 SCR 639 on the question whether plaintiff is entitled for the compensation of Rs 20,484/ on account of loss of interest. Para 12 of the said judgment may eb reproduced herewith as follows: "12. There remains the question of interest. Interest for a period prior to the commencement of suit is claimable either under an agreement, or usage of trade or under a statutory provision or under the Interest Act, for a sum certain where notice is given. Interest is also awarded in some cases by Courts of equity. (Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji [LR 65 AI 66] .) In the present case no agreement about interest was made, nor was it implied. The notice which was given did not specify the sum which was demanded, and, therefore, the Interest Act does not apply". The present case also does not fall within those cases in which Courts of equity grant interest. Learned counsel for Durga Datt claimed interest as damages; but it is well settled that interest as damages cannot be awarded. Interest up to date of suit, therefore, was not claimable, and a deduction shall be made of such interest from the amount decreed. As regards interest pendente lite until the date of realisation, such interest was within the discretion of the Court. The rate fixed is 6 per cent which, in the circumstances and according to the practice of Courts, appears high. Interest shall be calculated at 4 per cent per annum instead of at 6 per cent, and the decree shall be modified accordingly.
Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 52 of 5550. Therefore, it is clearly held by Hon'ble Apex Court that that interest as damages cannot be awarded. Interest can be awarded strictly as per the provisions of the Interest Act and section 34, CPC which shall be dealt while discussing issue no (iv). Therefore, it is held that plaintiff is not entitled for a sum of Rs 20, 484/ as claimed on account of loss of interest as compensation.
51. With respect to this issue, it has been contended that plaintiff has suffered mental pain and agony due to negligent acts of the defendant bank. The relationship between the plaintiff and de fendant bank is essentially governed as per law applicable to contract. Plaintiff has failed to bring any evidence on record to prove that he has suffered loss of Rs 50,000/ and therefore, plaintiff is not entitled for the said sum of Rs 50,000/ as such. Similarly, w.r.t. Rs 49,500/ as claimed by plaintiff in the form of advocate fee, plaintiff has not led any evidence as to how he is entitled to receive the same in the form of compensa tion. Therefore, compensation of Rs 49,500/ as incurred by the plaintiff in the form of advocate fee cannot be allowed.
52. Accordingly issue no (iii) is partly allowed in favour of the plaintiff and against the defendant and it is held that plaintiff is Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 53 of 55 entitled for a compensation of Rs 1,45,900/ from defendant bank.
Issue 4: Whether the plaintiff is entitled to interest on the above mentioned amount i.e. Rs.2,65,884/, if yes for what period and at what rate ?
53. As discussed hereinabove, it has already been held that plaintiff is entitled for a sum or compensation of Rs 1,45,900/ from defendant bank. Plaintiff has further claimed pendente lite and future interest @ 12 percent per annum.
54. The Hon'ble Supreme Court in Jagdish Rai & Bros. v. Union of India, (1999) 3 SCC 257 observed that the award of interest under Section 34 CPC is a matter of procedure and ought to be granted in all cases when there is a decree for money unless there are strong reasons to decline the same. The Hon'ble Supreme Court in Central Bank of India v. Ravindra, (2002) 1 SCC 367 observed that award of interest pendente lite and post decree is discretionary with the court as it is essentially governed by Section 34 CPC dehors the contract between the parties and the discretion shall be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner. It is not a case where money was wrongfully detailed by the Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 54 of 55 defendant bank. This is a case where defendant bank and its officials were negligent in discharging their function and accordingly, plaintiff suffered monetary loss. The liability to pay the amount does not arise out of any commercial transaction. Therefore, in the considered opinion of the court, plaintiff is entitled for pendente lite and future interest @ 6 percent per annum.
RELIEF:
55.In the light of above discussion, the suit of the plaintiff is decreed for the recovery of amount of Rs. 1,45,900/ from defendant bank along with interest @6% p.a. from the date of filing of the suit, i.e., 24.10.2017 till realization of the decreetal amount.
56.The plaintiff is also entitled to cost.
57.Decree sheet be prepared accordingly.
58.File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT ON 22.07.2022 (KUMAR RAHUL) CIVIL JUDGE (NORTH) ROHINI/DELHI/22.07.2022 Suit No.1318 /17 Ravi Kiran Kabdaula Vs. Union Bank of India Page 55 of 55