Delhi District Court
M/S. Gems World vs Bank Of India on 14 March, 2022
M/s. Gems World v. Bank of India & Ors.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 2804/16
In the matter of :
M/s. Gems World
Through Its Authorised Signatory
Mr. Ashish Kumar Aggarwal
Registered Office At:
Shop No. 1/116, Motibazar,
Maliwara, Chandni Chowk,
Delhi - 110006 ...PLAINTIFF
VERSUS
1. Bank Of India,
Chandni Chowk, Jain Mahabir Bhavan,
Post Box No. 1316, Delhi 110006
Also At:
Bank Of India,
Grampanchayat Building,
Shirur Choufula Road,
Nhavare, Taluka - Shirur,
District - Pune, Maharashtra - 412211
2. Dattatray Suryakant, Thite,
Thite Vasati, Post - Nhavare, Taluka - Shirur,
District - Pune, Maharashtra - 412211
3. HDFC Bank,
1907, Chandni Chowk, Main Road,
Opp. Sis Ganj Gurudwara,
New Delhi 110006. ...DEFENDANTS
Date of institution : 03.10.2016
Date of judgment : 14.03.2022
SUIT NO : 2804/16 Pg 1 of 42
M/s. Gems World v. Bank of India & Ors.
SUIT FOR RECOVERY OF Rs.1,68,000/
ALONG WITH PENDENTE LITE AND FUTURE INTEREST R/W SECTION
72 OF THE INDIAN CONTRACT ACT, 1872
JUDGMENT
1. Vide this judgment, I shall decide a suit for recovery of Rs.1,68,000/.
BRIEF FACTS OF THE PLAINT:
2. The brief facts of the suit as alleged in the plaint by the plaintiff which are necessary for the disposal of the suit are that the Plaintiff is a partnership Firm registered under the Indian Partnership Act, 1932, having its registered office at Shop No.1/116, Motibazar, Maliwara, Chandni Chowk - 110006 and is inter alia engaged in the trading of a variety of precious and semi precious stones, being represented by its Authorised Signatory and constituted attorney, Mr. Ashish Kumar Agarwal who is authorised to institute the present suit. That the Defendant No.1 is a nationalized bank having its branch office at New Delhi at the abovementioned address and also having its branch office Nhavare, Pune, who had wrongfully transferred the amount of Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only) in the account of a nonbeneficiary i.e. Defendant No.2. Defendant No.2 is the nonbeneficiary who has received undue advantage, whereby amount was wrongfully credited in his account by Defendant No.1 and 3 in this case and Defendant No. 3 is a bank having its branch office at Delhi at the above SUIT NO : 2804/16 Pg 2 of 42 M/s. Gems World v. Bank of India & Ors.
mentioned address, who has wrongfully transferred the abovesaid amount in the account of the nonbeneficiary i.e. Defendant No. 2. That the facts giving rise to the present dispute are that on 28.05.2015 the Plaintiff had made an application for funds transfer through RTGS with Defendant No.3 through its current account No.05532320005695 with the same bank. The above request was made vide cheque bearing No.000070 dated 28.05.2015 in favour of "HDFC Bank Ltd - RTGS" for Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only). That the abovementioned application was made by the Plaintiff for funds transfer in which the following details of the beneficiary were provided: Beneficiary Name: Debu Santara Beneficiary Account No.: 601110110000294 Beneficiary Bank Name & Branch: Bank of India, Chandni Chowk, Delhi - 110006 Beneficiary Bank IFSC Code: BKID0006011 Defendant No.3 duly accepted the abovementioned application of the Plaintiff and an acknowledgment slip was issued by them. That subsequently on the same day i.e. 28.05.2015 an amount of Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only) was debited from the above mentioned current account of the Plaintiff but to the utter shock and dismay of the Plaintiff it did not reach the abovementioned beneficiary i.e. Debu Santara, nor was the said amount credited back to the said current account SUIT NO : 2804/16 Pg 3 of 42 M/s. Gems World v. Bank of India & Ors.
mentioned by the Plaintiff. The statement of account of the Plaintiff clearly shows that through RTGS an amount of Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only) had been made to Debu Santara who is the above mentioned beneficiary and the said amount has also been debited from the current account of the Plaintiff, but even after such an entry reflecting in the statement of account of the Plaintiff, the amount was not credited to the abovementioned actual beneficiary. That when enquiry was made from Defendant No.3 regarding the non transfer of funds in the account of the abovementioned actual beneficiary, it was informed that the funds instead of having been transferred to the Bank of India, Chandni Chowk branch, which was to be the beneficiary bank, were transferred to Bank of India, Nhavare, Pune branch. It is pertinent to mention here that money could not have been transferred to Defendant No.1 by Defendant No.3 if there was no negligence on part of both the Defendants. As it is expressed by the above mentioned statement of account of the Plaintiff, it was not possible that the money could have been transferred to any other account other than the actual beneficiary's account. That being aggrieved by such situation the Plaintiff made a representation dated 02.06.2015, to Defendant No.3 seeking a clarification, but nothing was received by the Plaintiff in response to the said representation. That thereafter, when no clarification was SUIT NO : 2804/16 Pg 4 of 42 M/s. Gems World v. Bank of India & Ors.
provided by Defendant No.3, the Plaintiff sent a legal notice to them dated 10.06.2015 through it counsel, further making a claim regarding the amount of Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only). Defendant No.3 on 24.06.2015 sent a reply to the said legal notice wherein it steered clear its liability towards the Plaintiff and the grievance of the Plaintiff remained unresolved. That on 11.06.2015 the Plaintiff also made a representation to the customer service department on the RBI requesting them to resolve the issue regarding their money claim, wherein the Plaintiff requested that the money be either credited in the account of the abovementioned actual beneficiary or in the alternative the money be returned to the account of the Plaintiff. In response to this particular representation made to RBI, Defendant No.3 sent a reply dated 17.06.2015 to the Plaintiff, where they again refused to acknowledge their liability against the Plaintiff. That during this course the Plaintiff came to know that as a result of the money being wrongly transferred by Defendant No.3, the remitter bank, to Defendant No.1 for further transfer, the money had further been wrongly credited by Defendant No. 1 in the account of an individual named Dattatray Suryakant, Defendant No.2, residing at the abovementioned address provided in the title of the case. The Plaintiff tried to contact Defendant No.1 for the recovery of the loss suffered, but no satisfactory reply / response was given SUIT NO : 2804/16 Pg 5 of 42 M/s. Gems World v. Bank of India & Ors.
by them to make good the loss that was caused by their carelessness or otherwise. That on 01.09.2015 a representation was made by the Plaintiff to the Defendant No.1 through email again requesting them to take appropriate measures to settle the grievance of the Plaintiff and further requesting them to look into the matter at the earliest so as to refund the amount to the Plaintiff, but except the automatically generated reply, mentioning that the bank would be taking up the matter with the concerned department for resolving the issue, no action was taken by them to look into the matter. Defendant No.1 did not bother in the lease to make any reply / response to the Plaintiff for the loss suffered at their hands. That a legal notice dated 05.10.2015 was sent by the Plaintiff through its counsel to Defendant No.2 through speed post to his village where he resides but the said notice returned unserved. Through the notice the Defendant No.2 was called upon to pay back the amount which was credited in his account due to the negligence and carelessness of both Defendant No.1 and Defendant No.3, but as the notice could not be served upon him because of unknown reason, the issue of the Plaintiff remained unresolved. That further, after no appropriate reply was given by Defendant No.1, the Plaintiff sent a legal notice dated 05.10.2015, through its counsel by speed post and courier, to the said bank again requesting them to either credit an amount of SUIT NO : 2804/16 Pg 6 of 42 M/s. Gems World v. Bank of India & Ors.
Rs.2,50,000/ (Rupees Two Lacs Fifty Thousand Only ) in the account of the abovementioned actual beneficiary or in the alternative return the transaction. But the notice fell on deaf years as Defendant No.1 chose not to reply / respond to the said notice or to provide any kind of relief to the Plaintiff. That as no reply was preferred by Defendant No.1 regarding the claim of the Plaintiff, the Plaintiff again sent a reminder to the said bank on 06.11.2016, through its counsel by speed post, to which also the said bank chose not to reply and the issue till date remains unresolved. That the issue of the Plaintiff still being unresolved, the Plaintiff filed a complaint dated 26.11.2015 with the Banking Ombudsman, New Delhi, representing their grievance against Defendants No.1 and 3. That it is pertinent to mention here that the Plaintiff out of its own efforts went to the residence of Defendant No.2 to request him to return the money that had been wrongly credited in his account. Initially, Defendant No.2 was reluctant but when the Plaintiff insisted, he gave Rs.72,000/ to the Plaintiff on 02.12.2015 and subsequently on 13.01.2016 gave Rs.10,000/. But after that no amount was paid either by Defendant No. 2 or by any of the other Defendants. This corroborates the fact that Defendant No.2 with a mala fide intention was holding back the money of the Plaintiff, that went to him by the mistake and ignorance of the Defendants No.1 and 3 and by paying the abovesaid SUIT NO : 2804/16 Pg 7 of 42 M/s. Gems World v. Bank of India & Ors.
amount he has thereby admitted his liability. Also it exposes the fact that the other two Defendants are also liable to make good the loss of the Plaintiff. That after the above incident, several attempts were made by the Plaintiff to recover their money from the Defendants, but none of the Defendants bothered to pay any heed to the several requests of the Plaintiff. That on 12.04.2016 i.e. three and a half months after filing of the complaint, a reply dated 17.12.2015 regarding the closure of the complaint was sent by the office of the Banking Ombudsman to the Plaintiff. The reason assigned by the office of the Banking Ombudsman for closing the complaint was that on the basis of a telephonic conversation, they learned that the Plaintiff was satisfied with the current state of affairs and that the Banking Ombudsman was closing their complaint, whereas the Plaintiff received no phone call from the office of the Banking Ombudsman and they, for the reasons best known to them closed the complaint without even trying to resolve the issue of the Plaintiff. The reply that was sent by the office of the Banking Ombudsman is full of overwriting and does not seem to be an authentic one and makes it apparent that the complaint of the Plaintiff was not dealt with in the proper manner. To the misfortune of the Plaintiff, the Banking Ombudsman without consulting or taking the Plaintiff into account for deliberating upon the issue/complaint, closed the complaint SUIT NO : 2804/16 Pg 8 of 42 M/s. Gems World v. Bank of India & Ors.
arbitrarily. That the Plaintiff has every reason to believe that the Defendants, who are jointly and severally liable to make good the loss suffered by the Plaintiff, do not intend to pay the remaining amount of Rs. 1,68,000/ (Rupees One Lac Sixty Eight Thousand Only) to the Plaintiff. Further, after having exhaused all the available remedies, the Plaintiff is left with no alternative but to approach this Hon'ble Court for the recovery of its dues along with interest and costs. That the cause of action first arose when the Plaintiff applied to transfer money through RTGS form the bank of Defendant No.3 and his money was wrongly credited in the account of a nonbeneficiary by Defendant No.3. The cause of action further arose when the Defendants No.3 failed to return the amount wrongly credited in the account of a nonbeneficiary despite repeated demands and requests followed by a letter dated 02.06.2015 issued by the Plaintiff. The cause of action again arose when the Defendant No.3 failed to return the amount wrongly credited in his account of a nonbeneficiary followed by a legal notice dated 10.06.2016 issued by the Plaintiff. The cause of action further arose when Defendant No.3 sent a reply to the Plaintiff absolving themselves of their liability towards the Plaintiff. The cause of action further arose when the Plaintiff made a representation to the customer service department of the RBI on 11.06.2015. The cause of action further arose SUIT NO : 2804/16 Pg 9 of 42 M/s. Gems World v. Bank of India & Ors.
when a legal notice was sent by the plaintiff to Defendant No. 2 on 05.10.2015.
WRITTEN STATEMENT BY DEFENDANT NO.1:
3. The defendant No.1 filed its written statement and controverted the claim of the plaintiff while submitting that the Special Power of Attorney, filed by the plaintiff has been executed by only one partner of the firm. The same should have been executed by all the partners of the firm. That the Plaintiff has not filed any resolution/minutes for appointment of Power of Attorney and the Notarized Power of attorney filed is not signed by all the Partners.
Hence the present suit may be dismissed. It is further submitted that the Reserve Bank of India has introduced various electronic payment products such as RTGS, NEFT & ECS variants to facilitate electronic transfer of funds in a secure & efficient manner. The electronic payment products rely extensively on technology for origination, movement, processing and ultimate settlement of instructions. Implementation of the Core Banking Solutions (CBS) in banks, software interfaces connecting the CBS platform to the payment system gateway interfaces access to customers have been major enables towards providing a straightthroughprocessing (STP) environment and, thus, popularizing these products. In the CBS environment customers of a bank can be uniquely identified by their SUIT NO : 2804/16 Pg 10 of 42 M/s. Gems World v. Bank of India & Ors.
account number across branches. In terms of the extent procedural guidelines of RTGS/NEFT/ECS credits etc., however, banks are generally expected to match the name and account number information of the beneficiary. However, it becomes extremely challenging to perfectly match the name field contained in the electronic transfer instructions, as in India the name of beneficiary can be written in many different ways, with the name on record in the books of the destination bank. This leads to manual intervention hindering STP and causing delay in credit or due return of uncredited instructions and as per existing terms for the said service to customers, it is the responsibility of RTGS customer to ensure the correctness of the message especially the IFSC code of the recipient branch & account number of the beneficiary. The collecting bank as well as the receiving bank will get the valid discharge if the amount is credited to correct account number even if the name of beneficiary account holder differs. In view of above, being essentially credit - push in nature, responsibility for accurate input and successful credit lies with the remitting customer and the originating banks. Therefore, it was decided by Reserve Bank of India vide their communication bearing No.RBI/201011/235 DPSS (CO) EPPD No.863/04.03.01/201011 dated 14.10.2010 that responsibility to provide correct inputs in the payment instructions, particularly the SUIT NO : 2804/16 Pg 11 of 42 M/s. Gems World v. Bank of India & Ors.
beneficiary account number information, rests with the remitter/originator and reliance will be only on the account number for the purpose of affording credit. This is applicable both for transaction request emanating at branches and those originated through the online/internet delivery channel. It is further submitted that funds settlement takes place in the books of the Reserve Bank of India and directly credited to the customer's account. It is difficult to know for the destination bank in which account the funds from RBI have been received. The destination bank cannot verify the details of beneficiary put in by the originating bank/remitter. In the instant manner, the funds have been remitted and transaction has been originated at the level of HDFC bank. Therefore, it was responsibility of the HDFC bank to ensure that correct inputs particularly the correct account number was provided by them in the payment instructions. The answering defendant bank could not know in which account the funds have been credited by the Reserve Bank of India. Moreover, the plaintiff has admitted in his petition in para 6 that defendant No.3 (HDFC bank) has informed them that the funds instead of having been transferred to the Bank of India, Chandni Chowk branch, which was to be the beneficiary bank, were transferred to Bank of India, Nhavare, Pune branch. Thus origination bank has not ensured that correct inputs were provided by them in the payment instructions. It is further submitted SUIT NO : 2804/16 Pg 12 of 42 M/s. Gems World v. Bank of India & Ors.
that since the funds were transferred to the account of defendant no.2 by the system through Reserve Bank of India, defendant no.1 cannot debit the account of the customer without any mandate from the account holder. However, immediately after receiving information of wrong credit of RTGS, Nhavare branch of defendant No.1 (Bank of India), called the concerned customer and enquired about the same. He acknowledged that he has received RTGS of Rs.2,50,000/ and withdrawn the same. The said branch of defendant No. 1 bank asked him to deposit the RTGS amount as it was wrongly credited by HDFC bank, he assured to deposit the said amount at the earliest. A credit of Rs. 50,000/ was received in his account on 02.06.2015, another credit of Rs. 10,000/ on 15.07.2015 and further credit of Rs. 10,000/ on 08.09.2015 were received and thus an amount of Rs. 72,856/ was remitted back to HDFC bank through NEFT on 02.12.2015. On receipt of further credit of Rs. 10,000/ on 30.12.2015, the said amount of Rs. 10,000/ was again remitted to HDFC back through NEFT on 12.01.2016.
4. In reply on merits, the contents of para 1 of plaint have been stated to be matter of records. That the contents of para 2 of plaint are admitted to the extent that defendant No.1 has its branches at Chandni Chowk, Delhi and also at Nhavare, Pune. It is empathetically denied that Nhavare, Pune SUIT NO : 2804/16 Pg 13 of 42 M/s. Gems World v. Bank of India & Ors.
branch of the answering defendant bank (Defendant No. 1) has wrongfully transferred the amount of Rs.2,50,000/ (Rupees two lacs fifty thousand only) in the account of nonbeneficiary who has received undue advantage. Rest of the contents of this para is matter of record particularly that plaintiff has admitted that HDFC bank (originating bank) has wrongfully transferred the abovementioned amount in the account of nonbeneficiary i.e. Defendant No. 2. That contents of para 3, 4 & 5 of plaint are not related to defendant No.1, hence needs no reply. However, it is submitted that it was responsibility of the HDFC bank to ensure that correct inputs particularly the correct account number was provided by them in the payment instructions. That in reply to contents of para 6 of the plaint, it is submitted that plaintiff themselves have agreed that defendant No.3 informed to them that the funds instead of having been transferred to the Bank of India, Chandni Chowk branch, which was to be the beneficiary bank, were transferred to Bank of India, Nhavare, Pune branch. As per details mentioned in AnnexureP9 submitted by plaintiff with their plaint, it appears that originating bank (HDFC bank) has remitted the funds for credit of account No.061110110000294 instead of 601110110000294. Thus origination bank has not ensured that correct inputs were provided by them in the payment instructions. Since the transaction under RTGS is based on account SUIT NO : 2804/16 Pg 14 of 42 M/s. Gems World v. Bank of India & Ors.
number, and origination bank has not ensured to put the correct details (Account number) of beneficiary, the destination bank, defendant No.1 cannot be held liable for the wrongs of defendant No.3. It is wrong to allege that there is negligence on the part of Defendant No.1. That contents of para 7, 8 and 9 of the plaint are not related to defendant No.1, hence needs no reply. That in reply to the contents of para 10 of the plaint, it is submitted that in the instant matter, the funds have been remitted and transaction has been originated at the level of HDFC bank. Therefore, it was responsibility of the HDFC bank or the remitter (Plaintiff) to ensure that correct inputs particularly the correct account number was provided by them in the payment instructions. The answering defendant bank could not know in which account the funds have been credited by the Reserve Bank of India. Originating bank or the plaintiff has not ensure that correct inputs were provided by them in the payment instructions. It is further submitted that since the funds were transferred to the account of defendant no. 2 by the system through Reserve Bank of India, defendant no. 1 cannot debit the account of the customer without any mandate from the account holder. Moreover, the funds were immediately withdrawn by the customer from the account on the date of receipt of RTGS on 28.05.2015 and on 30.05.2015. It is submitted that in the contents of para under reply, the plaintiff has SUIT NO : 2804/16 Pg 15 of 42 M/s. Gems World v. Bank of India & Ors.
admitted that the money has been wrongly transferred by Defendant No. 3. It is empathetically denied that loss, if any, is caused to the plaintiff was due to carelessness of answering defendant no.1 (Bank of India). Moreover, Nhavare branch of the answering defendant bank immediately after receiving information of wrong credit of RTGS, called the concerned customer and enquired about the same. He acknowledged that he has received RTGS of Rs.2,50,000/ and withdrawn the same. The said branch of defendant No. 1 bank asked him to deposit the RTGS amount as it was wrongly credited by HDFC bank, he assured to deposit the said amount at the earliest. A credit of Rs.50,000/ was received in his account on 02.06.2015, another credit of Rs.10,000/ on 15.07.2015 and further credit of Rs.72,856/ was remitted back to HDFC bank through NEFT on 02.12.2015. On receipt of further credit of Rs.10,000/ on 30.12.2015, the said amount of Rs.10,000/ was again remitted to HDFC bank through NEFT on 12.01.2016. This corroborate that answering defendant bank immediately have taken action which was possible in the circumstances of the matter. That contents of para 11 are admitted to the extent that an e mail was sent by plaintiff to the Head Office at Mumbai of defendant No.1 bank and CSD (Customer Service Department) of Head Office of Defendant No.1 bank acknowledged that said email. Since the funds were credited to SUIT NO : 2804/16 Pg 16 of 42 M/s. Gems World v. Bank of India & Ors.
the account of Shri Dattatray Suryakant, Defendant No.2, through RTGS and plaintiff has accepted that account number of beneficiary was wrongly mentioned as 061110110000294 instead of 601110110000294 by the originating bank i.e. Defendant No.3. It is the settled position of banking law and practice that destination bank i.e. Defendant No.1 cannot recover the amount from the account of beneficiary without any mandate from him. Moreover the funds were immediately withdrawn by the customer from the account on the date of receipt of RTGS on 28.05.2015 and on 30.05.2015. As already submitted the answering defendant bank could not know in which account the funds have been credited by the Reserve Bank of India. Moreover till then there was no communication from Defendant No.3 (Originating bank) that the amount has been erroneously sent to the credit of wrong account and there were no instructions to reverse the same. However, when it was brought to the knowledge of Nhavare Branch, the said branch immediately took action as mentioned in reply to para 10 above which is not repeated herein for the sake of brevity. That contents of para 12 of plaint are stated to be not related to defendant No.1. However, it is empathetically denied that amount was credited in the account of defendant no.2 due to the negligence and carelessness of the answering defendant no.1 and the contents of para 13 & 14 are admitted to the extent that a SUIT NO : 2804/16 Pg 17 of 42 M/s. Gems World v. Bank of India & Ors.
notice dated 05.10.2015 and reminder dated 05.11.2015 (not 05.11.2016) was received by Nhavare branch of defendant No.1 bank. It is empathetically denied that no reply was given by the answering defendant no.1 (Bank of India). The reply to the said notice was sent by Nhavare branch of Defendant No.1 bank through its counsel Shri Pradip S. Shitole. It is further submitted that as per Reserve Bank of India communication bearing No.RBI/201011/235 DPSS (CO) EPPD No./863/04.03.01/201011 dated 14.10.2010 the responsibility to provide correct inputs in the payment instructions, particularly the beneficiary account number information, rest with the remitter/originator and reliance will be only on the account number for the purpose of affording credit. In the instant case, funds have been credited through RTGS in the correct account number as mentioned by HDFC bank and agreed by the plaintiff in their communication dated 05.10.2015 (Annexure P9). Hence the mistake was at the level of originating bank (HDFC Bank) and therefore answering defendant bank cannot be held liable. Moreover, Nhavare branch of answering defendant bank helped in recovery of part amount of RTGS. That contents of para 15 of plaint are stated to be matter of record. That in reply to the contents of para 16, it is denied that Plaintiff out of its own efforts went to the residence of Defendant No.2. The averments in reply to para 10 have been reiterated SUIT NO : 2804/16 Pg 18 of 42 M/s. Gems World v. Bank of India & Ors.
in reply to para 16 and are not being produced for the sake of brevity. It is denied that answering defendant is also liable to make good the loss of plaintiff. That the contents of para 17 of the plaint are stated to be wrong. Moreover Nhavare Branch of answering defendant No.1 (Bank of India) recovered the amount as mentioned in reply to para 10 and remitted the same to HDFC bank. That contents of para 18 of plaint are state to be not related to defendant No.1. That the contents of Para 19 are stated to be false.
WRITTEN STATEMENT BY DEFENDANT NO.3:
5.
6. In preliminary objections, it is submitted by defendant No.3 that the Present suit filed by plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed out rightly. It is submitted that the present suit is not maintainable for alleged reasons and the plaintiff has not approached this Hon'ble court with clean hands and has concealed material facts from this Hon'ble Court. The suit deserves to be dismissed as the same is nothing but an abuse of the process of law as alleged. That the Present suit is liable to be dismissed as it fails to establish or give rise to any cause of action in favour of the plaintiff and against the defendant no.3.
In fact the Present suit is filed on frivolous and vexatious grounds to cause undue advantage to the plaintiff and undue loss to the defendant no. 3. That SUIT NO : 2804/16 Pg 19 of 42 M/s. Gems World v. Bank of India & Ors.
the Present suit is not maintainable as the allegations made by the plaintiff in the present suit are baseless, false and frivolous. It is further submitted that the present suit is not maintainable as the grounds on the basis of which this suit is filed are not tenable in the eyes of law for being legal and is in contravention to the rules and regulations prescribed by law. It is submitted that the plaintiff is an account holder with the defendant no. 3 having account No.05532320005695. It is further submitted that on 28.05.2015 the plaintiff approached the defendant no.3 for RTGS (Real Time Gross Settlement) transaction and accordingly filled up the application form for fund transfer of an amount of Rs.2,50,000/ through RTGS. It is pertinent to mention that in the said RTGS from the plaintiff filled the following details of the beneficiary i.e. the person in whose account the said money was to be credited.
1. Beneficiary account no. 061110110000284
2. Beneficiary Name: Debu Santara
3. Beneficiary Bank: Bank of India
4. Beneficiary Bank IFSC code: BKID0006011
7. That accordingly, after verifying the account details of the plaintiff/remitter, in accordance with the RBI guidelines, the defendant no. 3 debited the abovesaid amounts from the account of the plaintiff for credit to the above mentioned beneficiary account provided by the plaintiff through RTGS. It is pertinent to mention that at the time of transferring of funds through RTGS SUIT NO : 2804/16 Pg 20 of 42 M/s. Gems World v. Bank of India & Ors.
upon the request of the account holder, the bank can only verify the details of its account holder. It can neither verify the correctness/authenticity of the beneficiary account nor that of the bank name, branch and its IFSC code. It is submitted that the defendant no.3 bonafidely transferred the funds into the beneficiary account as was provided by the plaintiff in the RTGS form filled by the plaintiff himself. It is submitted that it is evident from the abovesaid facts that the plaintiff has filled the different account detail of the beneficiary in the said RTGS form filled by him on 28.05.2015 and upon realizing the same, the plaintiff money from the defendant no.3. It is submitted that the wrong transfer of funds as alleged by the plaintiff, thus cannot be attributed to the defendant no.3 and the present suit against the defendant no.3 is liable to be dismissed on this ground alone. That the present suit is not maintainable and is liable to be dismissed as the suit is not in consonance with the facts and the same is based on concocted and fabricated story of the plaintiff with mala fide intentions to harass and black mail the defendant no. 3 and hence the same is liable to be dismissed. That the Present suit suffers from vires of "suggestio falsie and suppersio varie". The plaintiff has made false averments and incorrect facts in the suit. The present suit is liable to be dismissed on this ground with exemplary cost.
8. In reply on merits, it is submitted that the contents of para no.1 of the suit SUIT NO : 2804/16 Pg 21 of 42 M/s. Gems World v. Bank of India & Ors.
are a matter of record. That the partial contents of para no.2 of the suit that pertaining to the defendant no.3 are wrong and denied. That the contents of para no.3 of the suit are also matter or record, hence no reply. That the partial contents of the para no.4 pertaining to the account details of the beneficiary account are wrong and denied, rest all is a matter of record. It is submitted that the beneficiary account number given by the plaintiff in the RTGS from is 061110110000294 and not 601110110000294 as wrongly stated in the present suit. It is further submitted that the said fact can be verified from the RTGS filled by the plaintiff form that has been annexed as Annexure A hereinabove. It is submitted that it is evident from the abovesaid facts that the plaintiff has filled the different account detail of the beneficiary in the said RTGS form filled by him on 28.05.2015 and upon realizing the same, the plaintiff is simply shifting the onus on the defendant no.3 in order to extract money from the defendant no.3. It is pertinent to mention that at the time of transferring of funds through RTGS upon the request of the account holder, the bank can only verify the correctness of the beneficiary account nor that of the bank name, branch and its IFSC code. That the partial contents of para no.5 pertaining to the debit of Rs.2,50,000/ from the current account of the plaintiff are a matter of record. Rest all is denied. That the contents of para no.6 of the suit have been SUIT NO : 2804/16 Pg 22 of 42 M/s. Gems World v. Bank of India & Ors.
denied. It is submitted that the defendant no.3 debited the said amount of Rs.2,50,000/ from the account of the plaintiff, for crediting in the beneficiary account number as provided by the plaintiff in the said RTGS form. That the preliminary submissions in para no.3 of the written statement may be read together with the reply to the present para. That the contents of para no.7 of the suit have been denied. It is submitted that after receiving the representation of the plaintiff, the plaintiff was verbally informed by the staff of defendant no.3 that the said amount has been credited in the same account number as was mentioned in the RTGS form filled by him. It is pertinent to mention that the liability of providing the correct beneficiary details lies with the remitter i.e. plaintiff in the present case as the defendant no.3 does not have any mechanism to check/verify the correctness of the beneficiary's account details. That the contents of para no. 8 of the suit have been denied. It is submitted that the defendant no.3 in its reply of the said notice of the plaintiff, the defendant no.3 clearly informed that the RTGS was done as per the details mentioned on the RTGS from duly submitted by the plaintiff and that the remitting bank cannot verify the details of the beneficiary, thus factual correctness of the same is the responsibility of the remitter/plaintiff only. It is further submitted that vide the said notice, the defendant no.3 also informed the plaintiff that as a goodwill SUIT NO : 2804/16 Pg 23 of 42 M/s. Gems World v. Bank of India & Ors.
gesture, it is coordinating with the defendant no.1 and exploring the possibility of recovery of the said amount from the said customer/defendant no. 2 to whom the said credit had been given basis the RTGS details provided by the plaintiff. That the partial contents of para no. 9 of the suit pertaining to the defendant no. 3 have been denied. Rest all is denied for want of knowledge. It is submitted that the defendant no.3 vide its reply dated 17.06.2015 and 24.06.2015, had clarified to the plaintiff that the RTGS was done as per the details mentioned on the RTGS form duly submitted by the plaintiff and that the remitting bank cannot verify the details of the beneficiary, thus factual correctness of the same is the responsibility of the remitter/plaintiff only and that as a goodwill gesture, it is coordinating with the defendant no.1 and exploring the possibility of recovery of the said amount from the said customer/defendant no. 2 to whom the said credit had been given basis the RTGS details provided by the plaintiff. That the partial contents of para no. 10 of the suit pertaining to the defendant no.3 have been denied. Rest of the contents are stated to be not related to the defendant no.3. It is submitted that the defendant no.3 debited the said amount of Rs. 2,50,000/ from the account of the plaintiff, for crediting the same in the beneficiary account number as provided by the plaintiff in the said RTGS form dated 28.05.2015. That the contents of para SUIT NO : 2804/16 Pg 24 of 42 M/s. Gems World v. Bank of India & Ors.
no.11 of the suit are stated to be not related to the defendant no.3. That the partial contents of para no.12, 13 & 14 pertaining to the defendant no.3 have been denied. Rest all is denied for want of knowledge. That the contents of para no.15 of the suit have been denied for want of knowledge. That the partial contents of para no.16 of the suit pertaining to the defendant no.3 are stated to be wrong. It is submitted that the defendant no.3 debited the account of the plaintiff for an amount of Rs.2,50,000/ for credit to the beneficiary account having no.061110110000294 as provided by the plaintiff himself in the RTGS form dated 28.05.2015 filled by him. That in reply to the contents of para no.17 of the suit, it is submitted that the defendant no.3 does not have any liability whatsoever towards the plaintiff. The contents of preliminary objection have been reiterated in reply to para 17 to 20 and are not being reproduced here for the sake of brevity. It is further submitted that the defendant no.3 vide its reply dated 17.06.2015 and 24.06.2015, had clarified to the plaintiff that the RTGS was done as per the details mentioned on the RTGS form duly submitted by the plaintiff and that the remitting bank cannot verify the details of the beneficiary, thus factual correctness of the same is the responsibility of the remitter/plaintiff only and that as a goodwill gesture, it is coordinating with the defendant no.1 and exploring the possibility of recovery of the said amount from the SUIT NO : 2804/16 Pg 25 of 42 M/s. Gems World v. Bank of India & Ors.
said customer/defendant no.2 to whom the said credit had been given basis the RTGS details provided by the plaintiff. It is submitted that no cause of action arise in favour of the plaintiff and against the defendant no.3 as alleged by the plaintiff.
9. No written statement was filed by defendant No.2 nor did he appear to contest the present suit.
REPLICATION TO THE WRITTEN STATEMENT OF DEFENDANT NO.1:
10. In the replication to the written statement of defendant No.1, it is submitted that the Special Power of Attorney is executed by Smt. Renu Aggarwal which has been witnessed by Smt. Mamta Aggarwal who is the other partner in the plaintiff firm. By virtue of the fact that the Special Power of Attorney has been executed by one partner and has been witnessed by the other, there being no other partners in the Plaintiff firm, as is evident from the Certificate of the Registrar of Firms, is sufficient enough to authorise the Constituted Attorney to act on behalf of the Plaintiff firm. It is submitted before that the responsibility for accurate input does lie with the remitting customer i.e. the plaintiff in the present case, which information has been accurately provided by the Plaintiff as is evident from the statement of accounts submitted by the plaintiff and which fact is also substantiated by the acknowledgement receipt which the Plaintiff received from Defendant SUIT NO : 2804/16 Pg 26 of 42 M/s. Gems World v. Bank of India & Ors.
No.3 after submitting the RTGS form, a copy of which is annexed herewith as Annexure P14. Further it is submitted that the responsibility of a successful credit not only lies with the originating banks i.e. Defendant No. 3 in the present case, but also an equal responsibility is shared by the beneficiary banks i.e. Defendant No.1 in the present case. REPLICATION TO THE WRITTEN STATEMENT OF DEFENDANT NO.3:
11. In the replication to the written statement of defendant No.2, it is submitted that the written statement filed by Defendant No.3 is filed through the Authorised Representative/ Authorised Officer of Defendant No.3 bank but the name, description and other details of that person have not been provided. Further, the affidavit is also blank and no power of attorney of the person concerned has been put on record. On this ground alone the defence of Defendant No.3 is liable to be struck out. It is further submitted that the information provided by the plaintiff was correct to the best of his knowledge and ability as is substantiated by the account statement submitted by the plaintiff of the relevant period and also which is further corroborated by the acknowledgment receipt provided by Defendant No.3 after the RTGS form was filled in. Defendant No.3 furthered the transaction without any mistake or laxity on their part then there would not have been any requirement for verifying the correctness of the beneficiary account.
SUIT NO : 2804/16 Pg 27 of 42 M/s. Gems World v. Bank of India & Ors.
Whether or not Defendant No.3 can verify the correctness of a beneficiary account or that of the bank name or its IFSC code, they may be called upon for the strict proof of the same.
ISSUES:
12. From the pleadings of the parties, following issues were framed for trial vide order dated 16.10.2017:
1. Whether the plaintiff is entitled for recovery of Rs.1,68,000/, as prayed for?
OPP.
2. Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
3. Relief.
PLAINTIFF'S EVIDENCE:
13. In order to prove its case, plaintiff examined Sh. Ashish Aggarwal, AR/Attorney whose examination in chief is by way of affidavit Ex.PW1/X. PW1 relied upon following documents:
1. Ex.PW1/1 (OSR) (Colly.) photocopy of registration certificate of plaintiff firm issued by the Registrar of Firm alongwith Power of Attorney in favour of deponent.
2. Ex.PW1/2 photocopy of statement of accounts of plaintiff firm showing entries from 08.05.2015 to 05.06.2015.
SUIT NO : 2804/16 Pg 28 of 42 M/s. Gems World v. Bank of India & Ors.
3. Ex.PW1/3 (OSR) photocopy of representation made to defendant No.3 by the plaintiff firm dated 02.06.2015.
4. Ex.PW1/4 photocopy of representation made by the plaintiff firm to defendant No.3 dated 10.06.2015.
5. Ex.PW1/5 (OSR) photocopy of reply received from defendant No.3 by the plaintiff firm dated 24.06.2015.
6. Ex.PW1/6 (OSR) photocopy of representation made to Customer Service Department of RBI by the plaintiff firm dated 11.06.2015.
7. Ex.PW1/7 (OSR) photocopy of reply received against the representation dated 11.06.2015 from defendant No.3 dated 17.06.2015.
8. Ex.PW1/8 (Colly.) photocopy of email dated 01.09.2015 of representation sent through email to defendant No.1 alongwith electronic copy of representation.
9. Ex.PW1/9 office copy of legal notice dated 05.10.2015 sent to defendant No.2 by the plaintiff firm.
10. Ex.PW1/10 (Colly.) office copy of legal notice dated 05.10.2015 sent to defendant No.1 by the plaintiff firm.
11. Ex.PW1/11 (Colly.) office copy of reminder dated 05.11.2015 sent to SUIT NO : 2804/16 Pg 29 of 42 M/s. Gems World v. Bank of India & Ors.
defendant No.1 by the plaintiff firm.
12. Ex.PW1/12 (Colly.) office copy of complaint made to banking ombudsman of the RBI by the plaintiff firm dated 26.11.2015 alongwith postal receipt.
13. Ex.PW1/13 (OSR) photocopy of reply received from the banking ombudsman of the RBI dated 17.12.2015.
14. Ex.PW1/14 is deexhibited and now marked as MarkA photocopy of customer acknowledgment receipt received from defendant No.3.
15. Ex.PW1/15 electronic copy of statement of account of the plaintiff firm showing entries from 27.10.2015 to 21.01.2016.
16. Ex.PW1/16 certificate under Section 65B of Indian Evidence Act. Plaintiff's witness was cross examined only on behalf of defendant No.1 as defendants No.2 and 3 did not turn up to cross examine the witness. DEFENDANT'S EVIDENCE:
14. On the other hand, defendant No.1 bank examined Sh. Sudeep Saxena, Officer whose examination in chief is by way of affidavit Ex.D1W1/A. DW1 relied upon following documents:
1. Ex.D1W1/1 (OSR) copy of power of attorney in favour of Sh. Arvind Kumar Agarwal on 26.02.2010.
SUIT NO : 2804/16 Pg 30 of 42 M/s. Gems World v. Bank of India & Ors.
2. Ex.D1W1/2 RBI Circular dated 14.10.2010.
3. Ex.D1W1/3 Certificate under Section 65B of Indian Evidence Act.
4. Ex.D1W1/4 statement of account.
5. Ex.D1W1/5 copy of defendant's reply to counsel of plaintiff.
6. Ex.D1W1/B i.e. authority letter in favour of deponent to depose in the present case.
No evidence was led on behalf of defendants No.2 and 3 and they were also proceeded exparte on 10.10.2019, on account of nonappearance.
15. I have heard the arguments and perused the record. Written arguments were filed by defendant No.1.
16. Following citations were relied upon by the plaintiff:
• Dhan Singh Yadav v. Badri Prasad Civil Appeal No.699 of 1959; 29.01.1963.
• Kotrabasappa v. Indian Bank RFA No.652 of 1986; 30.04.1987.
17. Issuewise findings as follows:
ISSUE NO.1 Whether plaintiff is entitled for recovery of Rs.1,68,000/, as prayed for?
18. For better comprehension, it may be noted that in the relevant prayer clause of the plaint, the plaintiff has prayed for making all the three defendants jointly and severally liable for the amount of Rs.1,68,000/. Accordingly, the court is bound to determine two aspects; existence of SUIT NO : 2804/16 Pg 31 of 42 M/s. Gems World v. Bank of India & Ors.
liability and its extent qua all the three defendants.
19. At the outset, the relevant facts may be recapitulated. It is the claim of the plaintiff that he had filled an RTGS form along with cheque No. 000070 dated 28.05.2015, with Defendant no.3 bank where it maintains a current account for transfer of an amount of Rs.2,50,000/ to one Debu Santra. It is claimed that plaintiff had filled correct particulars, IFSC Code and account details in the RTGS form, however, due to negligence of defendant no.1 and 3, the money got transferred to a wrong account number i.e., account of defendant no.2. Before proceeding further, it must be noted that the factum of debit from account of plaintiff and consequent transfer of Rs 2,50,000/ on 28.05.2015 is not disputed.
20. At the threshold, the argument on behalf of defendant no.1 that Sh. Ashish Aggarwal who signed the plaint and led the evidence, is not duly authorised attorney of the plaintiff since the power of attorney Ex.PW1/1 (colly.) (OSR) is only given by one of the partners of the plaintiff firm. As per Order XXX Rule 1(2) of CPC "where persons sue or are sued partners in the name of their firm under subrule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons." When as per the law, the suit can be SUIT NO : 2804/16 Pg 32 of 42 M/s. Gems World v. Bank of India & Ors.
validly instituted if plaint is signed by only one of the partners then as matter of analogy, one of the partners can even authorise another person to sue as an attorney. Even otherwise, power of attorney has though been granted by one of the partners Ms. Renu Aggarwal however the same has been signed as witness by another partner Ms. Mamta Aggarwal as well.
21. Proceeding to consider merits, it is worth noting that plaintiff has placed on record Customer Acknowledgment Slip Mark A wherein the correct particulars with correct account number and other details of Debu Santra in consonance with the one claimed in the plaint, are visible. It bears significance that the slip ostensibly shows a stamp of receiving by the bank (defendant no.3). The plaintiff, naturally could have brought only acknowledgment slip which is the only document of proof handed over by banks on filling a form. The authenticity of the slip is unquestioned since defendant no.3 did not contest the suit except filing the written statement and in the written statement of defendant no.3, there is no whisper about the same.
22. Though written statement was filed by defendant no.3 however the same has remained merely a bundle of hollow assertions since evidence has not been led. Still, it may be noted that defendant no.3 had brought a document on record which seems to be a photocopy of the RTGS Form related to the SUIT NO : 2804/16 Pg 33 of 42 M/s. Gems World v. Bank of India & Ors.
transaction in question. Since, it was never brought into evidence, the same cannot be considered. Nonetheless, not turning a blind eye, I may still take into account that the document shows difference in first two digits of the account number than the plaint. The account number of the intended beneficiary as disclosed in the plaint starts from '60' whereas the one on the form starts with '06'. Even assuming that plaintiff had furnished a wrong account number in the form, what cannot be lost sight of is that the corresponding customer acknowledgment slip is for a purpose and is not an irrelevant piece of paper. In case of any discrepancy in account number, it cannot be expected from bank to simply remit the cheque for credit. At this juncture, it may be worthwhile to note that as per RBI Guidelines Ex.DW1/2, the banks are required to get the account number filled at two places in the form. Considering the same, the importance of the acknowledgment slip is further reassured since any discrepancy in the slip and the form should have rather been noted by the defendant no.3 bank before initiating the transaction. It must be stated that the word 'acknowledgment' as per Black's Law Dictionary (Tenth Edition) means "the act of making it known that one has received something". Accordingly, the slip in itself signifies that the bank had in a way admitted that the details filled in the slip were received by the bank in the RTGS form and anything contrary was to be proved by SUIT NO : 2804/16 Pg 34 of 42 M/s. Gems World v. Bank of India & Ors.
defendant No.3 who did not lead any evidence nor did cross examine PW
1.
23. It is also pertinent to note that it is no where disputed that IFSC Code of the intended beneficiary furnished by the plaintiff was not the one of the branch in which the defendant no.2 maintains the account, meaning thereby that there was a clear mismatch of details, if the contention of the defendants that plaintiff furnished wrong account number, is also taken as true. IFSC code is a bank and branch specific code therefore, it is needless to say that the Chandni Chowk Branch (intended beneficiary branch) and Nhavare Pune Branch (to which money was wrongly credited) must have different IFSC Codes. It has come on record through testimony of D1W1 and written statement of defendant no.1 that IFSC code is must for any RTGS transaction. Therefore, it rather suggests negligence on the part of the defendant no.3 bank.
24. Here, I must pause and consider that as per RBI guidelines Ex DW1/2, it transpires that the determining factor of transaction through RTGS/NEFT/ NECS/ECS is only the beneficiary account number and banks are not bound to consider other details. However, clause 5(viii) which overrides all the other clauses reads as under:
"(viii) The above notwithstanding, in cases where it is found that credit has SUIT NO : 2804/16 Pg 35 of 42 M/s. Gems World v. Bank of India & Ors.
been afforded to a wrong account, banks need to establish a robust, transparent and quick grievance redressal mechanism to reverse such credits and set right the mistake and / or return the transaction to the originating bank. This particularly needs to function very efficiently and pro actively till such time customers are comfortable with new arrangements."
25. This clause is indicative of two aspects: Firstly, even the Reserve Bank of India takes into account that there is always a scope of mistake in filling particulars and wrong credits can happen on the basis of the same. I must also state that human is to err. Secondly, the banks have been in a way made responsible to redress the grievance of the customer once such wrong credit has been made by reversing the credits.
26. This brings me to the representations and complaints made by the plaintiff to defendant no.3 which have gone unrebutted since defendant no.3 neither appeared to cross examine the plaintiff nor brought any evidence in rebuttal. The complaints and representations are contained in Ex.PW1/3 and Ex.PW1/4 and the corresponding reply in Ex.PW1/5. From the correspondence, it is evident that the defendant no.3 bank had simply avoided the responsibility stating that the credit was done as per the details given by the plaintiff and it is only as a goodwill gesture, they would contact the defendant no.1 bank. Nothing is on record to show any consequent SUIT NO : 2804/16 Pg 36 of 42 M/s. Gems World v. Bank of India & Ors.
efforts by defendant no.3 bank for this purpose. More so, the defendant no.3 did not appear in the court after filing the written statement. This further compels the court to take adverse view against defendant no.3 with regard to lack of efforts to comply with clause 5(viii) of the guidelines.
27. This apart, I must also indispensably mention that Ex.PW1/2 which reflects the debit in question, on 28.05.2015 contains name of the intended beneficiary 'Debu Santara', branch name as Chandni Chowk Branch and IFSC Code as the one mentioned in the plaint. Though, it is borne in mind that correct account number is necessary for RTGS transactions but this entry otherwise corroborates the claims of the plaintiff.
28. Ergo, firstly it is not proved on record that plaintiff filled wrong account details and secondly, even if the plaintiff committed a mistake in mentioning the account number, that would not make the money irreversible in any case and thirdly, the originating bank was equally at fault in terms of the observations made herein above.
29. In so far as liability of defendant no.1 bank is concerned, aid may be drawn from the RBI guidelines Ex.DW1/2 which state:
Destination banks may afford credit to the beneficiary's account based on the account number as furnished by remitter/ originating bank in the message/data file.
The beneficiary's name may be used for SUIT NO : 2804/16 Pg 37 of 42 M/s. Gems World v. Bank of India & Ors.
verification based on risk perception, value of transfer, nature of transaction, post credit checking etc.
30. It is patent that defendant no.1 merely had to rely upon the account number provided by the defendant no.3. Further the clause makes it clear by using the word 'may' that it was discretionary upon the defendant no.1 to check and verify the details in certain circumstances. Thus, defendant no.1 could at best be expected to be a facilitator.
31. Therefore, no liability can be enjoined upon defendant no.1, more specifically because, it could not have reversed the amount by debiting the amount from the beneficiary's account without any proper directions and assistance from defendant no.3. For the sake of arguments, I may still consider that in view of clause 5 (viii) of Ex.D1W1/2 destination bank ostensibly appears to be liable, however, on harmonious and holistic reading of the guidelines, defendant No.1 cannot be held liable for the present case.
32. Moving on to liability of defendant no.2, defendant no.2 did not turn up to contest the suit. Therefore, the factum of wrong credit in his favour is totally unrebutted. Moreover, defendant no.1 has placed on record Ex.D1W1/4 which depicts certain credits made by defendant no.2 in favour of the plaintiff. This document corroborates the claim of the plaintiff in the plaint SUIT NO : 2804/16 Pg 38 of 42 M/s. Gems World v. Bank of India & Ors.
and Ex.PW1/5 statement of account of the plaintiff, that defendant no.2 had returned part amount in instalments. Thus, it can be safely believed that the money was credited to defendant no.2 to which he was not entitled and thereby liable to refund it to the plaintiff.
33. The claim of the plaintiff is for Rs.1,68,000/ on the basis that defendant no.2 had refunded Rs.82,000/ in total. However, on meaningful reading and careful perusal of Ex.PW1/5 and Ex.D1W1/4 it transpires that defendant no.2 had remitted back Rs.82,856/ to be precise.
34. Before concluding, in the backdrop of the above discussion, it is prudent to note the definition of the word 'proved' as contained in Section 3 of Indian Evidence Act, 1872 i.e., "Proved" .--A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Also, it would be unwise to ignore the standard of proof in a civil case which is preponderance of probabilities which as a phrase means more probable and rational view of the case. (Rishi Kesh Singh & Ors. vs The State AIR 1970 All 51). Ergo, in view of the observations made herein above, it can be safely concluded that the rational view of the case SUIT NO : 2804/16 Pg 39 of 42 M/s. Gems World v. Bank of India & Ors.
strongly tilts in the favour of the plaintiff.
35. All put together, it is concluded that defendants no.2 and 3 are jointly and severally liable to refund the outstanding amount to the plaintiff i.e., Rs.1,67,144/.
36. Hence, this issue is decided in favour of plaintiff and against the defendants No.2 and 3.
ISSUE NO.2 Whether the plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
37. In prayer clause (ii), plaintiff has claimed interest @ 18% per annum on the suit amount i.e. Rs.1,68,000/ from the date of closure of accounting year of debit till the date of institution of suit and ha also claimed pendentelite and future interest @ 18% per annum.
38. As manifest from the above discussion under issue No.1, there was no contract between any of the parties pertaining to subject matter of the suit and the dispute pertains to mistaken credit in the account of defendant No.2 against which account of the plaintiff was debited. Therefore, there is naturally no agreement regarding interest. However, it is a settled law that presuit interest can be granted even as per substantive law or usage or trade or for the sake of equity, in absence of agreement. Plaintiff has also relied upon a judgment of Hon'ble Karnataka High Court in Kotrabasappa v.
SUIT NO : 2804/16 Pg 40 of 42 M/s. Gems World v. Bank of India & Ors.
Indian Bank, the facts of which also related to mistaken credit and the Hon'ble court awarded interest taking into account provisions of Trust Act and Interest Act while holding that such situations attract concept of fiduciary relationship. Moreover, the present set of facts also fall under Section 72 of Indian Contract Act, 1872 which falls under heading "of certain relations resembling those created by contract" according to which money paid under mistake must have been refunded.
39. On perusal of the judgment relied upon by the plaintiff and otherwise settled law, plaintiff herein is held entitled to presuit interest.
40. At this juncture, I must mention that the court is not bound to grant the rate of interest claimed, if excessive, being against pubic policy (Pandit Munshi Ram Associates v. DDA 2010 (9) AD (Delhi). Therefore, plaintiff is awarded interest at the rate of 6% per annum from 01.04.2016 till date of institution of suit i.e. 03.10.2016 on Rs.1,67,144/ which comes out to be Rs.5,098/ (rounded of).
41. In addition, plaintiff is also awarded pendentelite and future interest @ 6% per annum (simple) in view of Section 34 of CPC which again does not bind the court with the interest rate claimed and rather puts a cap of 6% per annum over future rate of interest except in case of commercial transactions.
SUIT NO : 2804/16 Pg 41 of 42 M/s. Gems World v. Bank of India & Ors.
42. Hence, this issue is also decided in favour of plaintiff and against the defendants No.2 and 3.
RELIEF
43. In view of the discussion hereinabove, suit of the plaintiff is decreed for a sum of Rs.1,72,242/ (inclusive of presuit interest) with pendentelite and future interest at rate of 6% (simple) per annum from the date of filing of the present suit till its realization which the defendants no.2 and 3 are jointly and severally liable to refund to the plaintiff. However, it is made clear that the primary liability in the present facts is of defendant No.2 and accordingly, defendant No.3 can avail appropriate remedy, if any, as per law against defendant No.2, if need be.
44. It has come to pass that the plaintiff paid the court fees only on the recovery amount as contained in prayer clause (i) of the plaint and no court fees was paid on presuit interest, let decree be drawn up only subject to payment of deficit court fees on the amount of interest at the rate of 18% on amount claimed i.e. Rs.1,68,000/ for the period starting from 01.04.2016, till the institution of the suit.
45. Decree sheet be prepared accordingly.
HELLY Digitally signed by HELLY FUR
46. File be consigned to Record Room. FUR KAUR Date:
KAUR 2022.03.14 16:44:04 +0530 Announced in the open court (HELLY FUR KAUR) on 14.03.2022 Civil Judge - 08 (Central)/Delhi SUIT NO : 2804/16 Pg 42 of 42