Delhi District Court
Cs No. 455/ vs Manoj Kumar on 10 May, 2014
IN THE COURT OF MS. NITI PHUTELA:
CIVIL JUDGE02:SOUTH: SAKET COURT COMPLEX:
NEW DELHI.
CS No. 455/11
DENA BANK
Having its Corporate Office at
Dena Corporate Center, C10, G Block,
Bandra Kurla Complex, Bandra (East)
Mumbai400051 and its branch office
amongst others at Vidya Bhawan
Chhattar Pur, New Delhi110074 ...........Plaintiff
Versus
MANOJ KUMAR
S/o Late Sh. Ajit Kumar
R/o House No.16,
Maidangarhi, New Delhi. .............Defendant
Date of Institution : 17.07.2011
Date of Reservation : 22.04.2014
Date of Decision : 10.05.2014
J U D G M E N T
1. Vide this judgment I shall decide the suit of the plaintiff for recovery of sum of Rs. 2,61,000/ alongwith interest @ 18% per annum.
2. It is the case of plaintiff that plaintiff is duly incorporated under Banking Companies (Acquisition and Transfer of undertaking) CS No. 455/11 Page No. 1 of 10 Act of 1970 and is having its corporate office at Mumbai. The Branch office of plaintiff is located in Delhi. Sh. Harsh Kumar Bhalla, Manager of the plaintiff bank is duly authorized by the plaintiff bank to file the present suit on behalf of plaintiff. It is the case of plaintiff that defendant was maintaining a saving bank account in the branch of plaintiff bearing No. 024010004850. On 19.07.2008 a cheque bearing no. 884010 dated 17.07.2008 for the sum of Rs. 2,50,000/ drawn on Bank of Baroda, Saket Branch was deposited in the account of defendant but the said cheque got dishonoured and the same was returned by the drawee bank vide cheque returning memo dated 19.07.2008 for the reasons "Balance Insufficient". But inadvertently the said cheque was not marked as returned in the account of defendant and the same got debited in the BCCD account which credited a balance of sum of Rs. 3,51,000/ in the account of defendant.
3. As per plaintiff, the said mistake was detected by the plaintiff only on 28.08.2008 and the plaintiff immediately contacted the defendant to return the said amount. A letter was also issued through registered post dated 15.09.2008 but in vain. Thereafter CS No. 455/11 Page No. 2 of 10 after various requests and reminders the defendant paid sum of Rs.56,500/ to the plaintiff bank on 16.09.2008 but later on failed to make the payment of balance amount. The defendant had already withdrawn the amount of Rs. 3,50,000/ on 24.07.2008 itself. On 16.09.2009 an overdraft was created in the account of defendant. Hence, as per plaintiff till 31.10.2010 (when the account was declared NPA) the defendant was liable to pay the sum of Rs. 2,18,348.44/. But no payments were made by the defendant. The plaintiff was therefore constrained to issue the legal demand notice dated 13.07.2013 but in vain. Hence, aggrieved by the said act on the part of defendant the present suit is filed by plaintiff. As per plaintiff the cheque was presented by the plaintiff bank on 17.07.2008 and the same was returned back on 19.07.2008. Therefore, as per defendant the present suit which is filed on 19.07.2011 is within the statutory period. Also as per plaintiff the cheque was presented in Delhi and the defendant resides at Delhi. Therefore, the present court has territorial jurisdiction to entertain the present suit.
4. On service of summons the defendant appeared through counsel and filed his WS. In the WS filed by defendant, the defendant CS No. 455/11 Page No. 3 of 10 has objected to the suit of the plaintiff on the ground that he had presented the cheque as mentioned by the plaintiff which was drawn by Sh. Ram Kishan on 17.07.2008 which was encashed but later on it was alleged by plaintiff that the said amount was mistakenly credited in his account. As per defendant, the said fact was never disclosed by the plaintiff to the defendant and the cheque returning memos were also not returned to the defendants. As per him the sum of Rs. 56,500/ were unlawfully withdrawn by the plaintiff which were deposited by the sister of the defendant in his account. Also as per defendant the present suit is beyond the limitation period. On merits the defendant replied that the present suit is bad for non joinder of parties as Sh. Ram Kishan who had issued cheuqe was necessary part to the suit and the plaintiff is also liable to pay damages to the defendant for the deficiency of the services. As per him, the plaintiff has till date not handed over the cheque which got dishonoured back to him and rather plaintiff is liable to compensate the defendant for negligence on its part. It is further prayed by defendant that suit of the plaintiff be dismissed.
5. In replication to the WS filed by defendant plaintiff had CS No. 455/11 Page No. 4 of 10 admitted the factum of presentment of cheque but denied all the other averments of the defendant in the WS. The plaintiff also denied the fact that the cheque which was dishonoured has still been kept by the plaintiff and as per plaintiff the same was filed on record and the copy of the same was also supplied to defendant.
6. Out of pleadings of the parties, following issues were carved out:
Issue No.1: Whether plaintiff is entitled to decree for a sum of Rs. 2,61,000/ as prayed in clause (a) of the prayer? OPP. Issue No.2: Whether the plaintiff is entitled to any interest, if so, at what rate and for which period? OPP Issue No.3:Whether the present suit is barred by law of limitation? OPD.
Issue No.4:Whether the suit is bad for non joinder of necessary party?OPD Issue No.5: Relief.
7. The defendant stopped appearing in the present matter. He was therefore proceeded exparte vide order dated 04.02.2014.
8. The plaintiff in order to shed the onus on its shoulders got examined AR of plaintiff bank as PW1 and filed on record his affidavit Ex.PW1/A. He relied upon the documents such as copy of PoA Ex.PW1/1 (OSR), cheque dated 17.07.2008 Ex.PW1/2, returning memo dated 19.07.2008 Ex.PW1/3, letter dated 15.09.2008 CS No. 455/11 Page No. 5 of 10 Ex.PW1/4A, regd. AD/UPC dated 18.09.2008 Ex.PW1/4B, legal notice dated 13.07.2011 Ex.PW1/5A, courier receipts Ex.PW1/5B, statement of account Ex.PW1/6 and certificate under Banker's Books Evidence Act is Ex.PW1/7.
9. Vide separate statement of the AR for plaintiff, the plaintiff's evidence was closed on 03.04.2014.
10. Exparte final arguments were addressed by counsel for plaintiff. Heard. Record perused.
11. My issue wise findings on the issues framed are as follows: Issue No.3 : Whether the present suit is barred by law of limitation? OPD.
12.The onus to prove the said issue was upon defendant but defendant failed to led his evidence and even failed to cross examine the plaintiff's witness. In the plaint, plaintiff had averred that the cheque was dishonoured on 19.07.2008 and the said fact came to the knowledge of plaintiff on 28.08.2008. However, in this regard in para no. 7 of the affidavit of witness PW1 i.e. Ex.PW1/A it is mentioned that the plaintiff bank came to know regarding the abovesaid mistake on 13.09.2008. Therefore, there is apparent contradiction in the testimony of plaintiff's witness as regards to the averments in the plaint. But CS No. 455/11 Page No. 6 of 10 the said contradiction is not fatal to the case of plaintiff because even if it is presumed that the date of knowledge was the date which is mentioned in the plaint i.e 28.08.2008 being prior in time then also the present suit is within the limitation period as prescribed under Article 113 of Limitation Act, 1963. There is no rebuttal of the said averment of the plaintiff by the defendant. Therefore in the absence of the same the averments put forward by the plaintiff would deem to be correct. Therefore, the defendant had failed to shed the onus on his shoulders that the suit is barred by limitation. Hence, the present issue is decided in favour of plaintiff and against the defendant.
Issue No.4 : Whether the suit is bad for non joinder of necessary party?OPD
13. The onus to prove the said issue was upon defendant. It is alleged by defendant in the WS that the drawer of the cheque namely Sh. Ram Kishan is not made a party to the present suit. However, as already observed above that defendant has not led any evidence to show that Sh. Ram Kishan is a necessary party to the suit. Moreover, the plaintiff is the dominus litus of its own case and it is for the plaintiff to implead the person against CS No. 455/11 Page No. 7 of 10 whom it has grievance. In the case in hand, the main grievance of the plaintiff is against the defendant because as per plaintiff the amount was inadvertently credited in the account of defendant which was subsequently withdrawn by him. Therefore, whatever relief which can be sought by plaintiff is against defendant only and Sh. Ram Kishan is not a necessary party to the suit. Therefore, the present issue is also decided in favour of plaintiff and against the defendant. Issue No.1: Whether plaintiff is entitled to decree for a sum of Rs. 2,61,000/ as prayed in clause (a) of the prayer? OPP and Issue No.2: Whether the plaintiff is entitled to any interest, if so, at what rate and for which period? OPP
14. The onus to prove both the abovesaid issues was upon plaintiff. The plaintiff in order to shed the said onus relied upon the original cheque Ex.PW1/2 and cheque returning memo Ex.PW1/3 which shows that the said cheque was returned as dishonoured on 19.07.2008. The plaintiff has also filed on record statement of account Ex.PW1/6 which also clearly shows that the said cheque was presented by the plaintiff in his account on 19.07.2008 and which was actually credited in his account but the same should not have been done. Further CS No. 455/11 Page No. 8 of 10 amount of Rs. 3,50,000/ was withdrawn by him on 24.07.2008 which reflects that the said amount was used by the defendant for his personal benefit. The said statement of account further points towards the fact that sum of Rs. 56,500/ was also deposited by defendant on 16.09.2008 which was adjusted by the plaintiff in the temporary overdraft facility which was created on 26.09.2009. Thus plaintiff has sufficiently proved its case on the basis of abovesaid documents and even claimed the amount from defendant by sending the letter dated 15.09.2008 which is Ex.PW1/4A and also the legal demand notice Ex.PW1/5A but no payment was made by defendant. Therefore, the defendant is liable to pay back the amount which was credited in his bank account inadvertently.
15.As regards the grievance of defendant against the plaintiff is concerned for the same separate remedies are available with the defendant which can be availed by him.
16.On the outstanding amount interest is charged by plaintiff @18% per annum. But in this regard the this court is of the view that 18% rate of interest per annum is on higher side and interest of justice would be served if the interest @12% per CS No. 455/11 Page No. 9 of 10 annum is granted to the plaintiff. Therefore, the plaintiff has shed the onus upon its shoulders regarding the abovesaid issues. Hence, both the issues are decided accordingly in favour of plaintiff and against the defendant.
Issue No.5: Relief.
17. In view of the discussion on all the abovesaid issues, the suit of the plaintiff is decreed for the sum of Rs.2,18,348.44/ (Rupees Two Lakh Eighteen Thousand Three Hundred Forty Eight and Forty Four Paisa Only) alongwith interest @ 12% per annum from 01.11.2010 till realization of the same. Cost of the suit are also granted in favour of plaintiff.
18.Decree sheet be drawn accordingly.
19.File be consigned to record room after due compliance.
Announced in the open Court (NITI PHUTELA)
dated 10/05/2014. Civil Judge02 (South)
Saket Courts, New Delhi.
CS No. 455/11 Page No. 10 of 10
CS No. 455/11
10.05.2014
Present: Sh. Simanta Das, counsel for plaintiff alongwith plaintiff.
Defendant is already exparte.
Clarification from the plaintiff sought. At this stage, this court deems it fit to frame additional issue which is as follows:
Issue: Whether the suit is bad for non joinder of necessary party?OPD As defendant is already exparte, there is no requirement of giving any opportunity to the defendant for leading additional evidence. It is submitted by Ld. counsel for plaintiff that there is no requirement of leading additional evidence on behalf of plaintiff also.
Put up for orders at 4 pm.
(NITI PHUTELA)
Civil Judge02(South)
At 4 pm
Present: None.
Vide separate judgment of even date of this court, the suit of the plaintiff is decreed for the sum of Rs.2,18,348.44/ (Rupees Two Lakh Eighteen Thousand Three Hundred Forty Eight and Forty Four Paisa Only) alongwith interest @ 12% per annum from 01.11.2010 till realization of the same. Cost of the suit are also granted in favour of plaintiff.
Decree sheet be drawn accordingly.
File be consigned to record room after due compliance.
(NITI PHUTELA) Civil Judge02(South) Saket Courts, New Delhi.
10.05.2014 CS No. 455/11 Page No. 11 of 10