Delhi District Court
Sh. Anil Bhasin vs Smt. Jasbir Kaur on 6 April, 2022
THE COURT OF MS. SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
CS No. 611143/2016
In the matter of:
Sh. Anil Bhasin
S/o Sh. Late Sh. Ganga Bishan Bhasin
R/o WZ--24/1, Plot No. 37,
Shyam Nagar Extension,
New Delhi - 110 018.
.................Plaintiff
Versus
1. Smt. Jasbir Kaur
W/o Sh. Vijender Singh
2. Sh. Vijender Singh
S/o Sh. Jagir Singh
Both at:
C/o Mehar Beauty Parlour,
H. No. 865, DDA Flats,
Four Storeys, Vishal Enclave,
Rajouri Garden,
New Delhi - 110 027.
............Defendants
Date of institution : 16.09.2010
Date of Decision : 06.04.2022
Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 1 of 10
SUIT FOR RECOVERY OF DAMAGES OF RS. 5,00,000/.
JUDGMENT
1. This is a suit for recovery of damages of Rs. 5,00,000/ filed on behalf of plaintiff Anil Bhasin filed against three defendants namely Smt. Jasbir Kaur, Sh. Vijender Singh and ICICI Bank Ltd. Defendant no. 3/ICICI Bank was deleted from the array of parties vide statement of the plaintiff dated 09.08.2011.
PLEADINGS:
PLAINTIFF'S CASE:
2. The case of the plaintiff as per plaint is that he is reputed person residing in Delhi and is a professional Director, Actor and producer of T.V. serials and is enjoying good reputation/status in the society. On 12.06.2010, plaintiff received one SMS message from defendant no. 3 ICICI Bank Ltd as T.M. ICICI Bank at 10.55 AM on his mobile number 9810083929 which is as under : "Non pyt. on your ICICI bank credit card xxxx1004 is spoiling your credit history. Pay total dues of Rs. 2,61,637/ imdtly.or call our customer care and press
171."
3. On receiving this SMS, plaintiff was astonished as he had never taken any credit card from ICICI Bank Ltd. On verification, plaintiff came to know that this credit card number xxxx1004 belonged to defendant no. 1 and defendant no. 2 had given the mobile number of the plaintiff to the bank at the time of obtaining the credit card. This lowered the name, fame, reputation and status of the plaintiff in the society and Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 2 of 10 also lowered his credibility as a Director, Actor and Producer of the T.V. Serials.
4. Plaintiff has been receiving threat calls on his mobiles from the bank official for recovery of dues for a credit card which is in use and in the name of defendant no. 1. Plaintiff issued a legal notice dated 29.06.2010 to defendant no. 1 and 2 with a copy to defendant no. 3. Defendant no. 1 and 2 replied to the said notice vide reply dated 13.07.2010. However, no reply was received from defendant no. 3. Hence, the present suit has been filed seeking recovery of damages of Rs. 5,00,000/ from the defendant.
DEFENDANT'S CASE:
5. Defendants no. 1 and 2 filed their joint written statement wherein it is stated that plaintiff is related to the defendant no. 1 and 2 being the husband of sister of defendant no. 2. Due to sudden demise of mother of defendant no. 2 on 09.05.2010, entire family of defendant no. 2 was in grave shock and sorrow but unfortunately, the plaintiff and his wife started harassing the father of defendant no. 2 and defendant no. 2 on one pretext or another. A number of fake notices were issued by the plaintiff without any reason or cause to defendant no. 1 and 2 as well as father of defendant no. 2 for the greed and lust of property. The plaintiff and his wife also created a number of scenes before the relatives during the last rituals of mother of defendant no. 2. The present suit has also been filed by the plaintiff as he is heavily indebted to defendant no. 2 and wants to escape from his legal liability. A number of police complaints were lodged against the plaintiff by the father of defendant no. 2 wherein the wife of the plaintiff had given an undertaking and assurance dated 08.07.2010 that she will not harass defendants no. 1 and 2 and father of defendant no.
2. Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 3 of 10
6. It is stated that neither defendant no. 1 nor defendant no. 2 had ever authorized defendant no. 3 bank to give any SMS to the plaintiff.
However, the plaintiff in order to harass the defendants has filed the present suit without any cause of action.
7. On merits, although, it is admitted that a credit card was taken by defendant no. 1 from ICICI bank but it is categorically denied that defendant no. 2 had given the mobile number of the plaintiff to the bank. It is stated that previously the relations between plaintiff and defendant nos. 1 and 2 were cordial being close relatives and plaintiff might have himself given his mobile number to the ICICI Bank Ltd. It is categorically pleaded that defendants no. 1 and 2 had not authorized ICICI Bank to send any SMS to the plaintiff. Service of legal notice dated 29.06.2010 upon defendants no. 1 and 2 is admitted and it is also pleaded that they had sent a reply to the said legal notice. With these contentions, the suit of the plaintiff has been controverted.
8. Defendant no. 3 ICICI bank did not filed any written statement. On 09.08.2011, it was submitted on behalf of the plaintiff that defendant no. 3 bank is merely impleaded as proforma party and on his statement, defendant no. 3 was deleted from the array of parties.
REPLICATION:
9. Plaintiff filed his replication to the joint WS of defendants no. 1 and 2 reiterating the contents of the plaint and denying the contention of defendant in the WS except the admissions made.
Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 4 of 10ISSUES:
10. After completion of pleadings, vide order dated 04.05.2011, the following issues were framed:
(i) Whether the plaintiff is entitled for the decree of damages for Rs. 5,00,000/ against the defendants, as prayed for?OPP.
(ii) Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD
(iii) Relief.
PLAINTIFF'S EVIDENCE:
11. Plaintiff examined himself as PW1 and reiterated on oath the averments made in his plaint in his affidavit Ex.PW1/A. He relied upon the following documents.
(i) Ex. PW1/1: Copy of Legal Notice dated 29.06.2010 sent by the plaintiff to the defendant.
(ii) Ex. PW1/2 & Ex.PW1/3: Postal Receipts in respect of legal notice. to Ex.PW1/1.
(iii)Ex.PW1/4: Reply of defendant no. 1 and 2 dated 13.07.2010 to the legal notice Ex.PW1/1.
12. PW 1 was duly cross examined on behalf of the defendant.
13. One summoned witness Sh. R.K. Singh, Nodal Officer from Bharti Airtel Ltd. was examined as PW2. He produced the summoned record pertaining to mobile no. 9811083929 and deposed that the said Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 5 of 10 mobile was in the name of the plaintiff. He placed on record the customer application form with supporting documents which is Ex.PW2/A. He also produced the call details of the said mobile for the period 12.06.2010 which is Ex.PW2/B and certificate under Section 65B of the Indian Evidence Act which is Ex.PW2/C. This witness was also duly cross examined on behalf of the defendant.
14. PW3 Sh. Prabhas Kumar is again a summoned witness from Standard Charted Bank who produced the summoned record regarding the statement of account of bank account no. 52205629659 in the name of defendant no. 2 for the period 16.11.2005 till 11.08.2015 which is Ex.PW3/A. This witness was also cross examined on behalf of the defendant.
15. No other witness was examined on behalf of the plaintiff.
DEFENDANTS'EVIDENCE:
16. On behalf of defendants no. 1 and 2, defendant no. 2 examined himself as DW1 vide his affidavit Ex.DW1/A and stated and reiterated on oath the contents of their written statement. He also relied upon one police complaint dated 07.07.2010 which is Mark X. This witness was duly cross examined on behalf of plaintiff.
17. Defendant did not examine any other witness.
18. Final arguments have been heard. Record is carefully perused.
Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 6 of 10FINDINGS
19. Now I shall proceed to give my issuewise findings: ISSUE No. 2:
"Whether the plaintiff has no cause of action to file the present suit against the defendant?OPD"
20. The onus to prove this issue was on the defendants no. 1 and 2 who have alleged in preliminarily objection no. 2 of their WS that the plaint does not disclose any cause of action.
21. The term cause of action is not defined in CPC. However, as per settled law the term cause of action refers to a bundle of facts which entitle the plaintiff to bring about an action against the other party in a Court of Law. A cause of action, in law, is a set of facts sufficient to justify suing other party to obtain money, property or enforcement of a legal right against the other party. It is also a settled law that the cause of action for filing the suit has to be seen only from the plaint and documents annexed therewith. The defense of the defendant is immaterial in arriving at a conclusion whether the plaint discloses any cause of action or not.
22. In the present case, the plaintiff has pleaded the cause of action for filing the present suit as receipt of a SMS from the ICICI Bank Ltd. regarding spoiling of his credit history on account of nonpayment of the outstanding dues on credit card no. xxxx1004 which was not in his name but in the name of defendant no. 1. It is his case that the receipt of the said SMS resulted in lowering of his status and thus caused damage to his reputation. The plaintiff was not supposed to file proof of damages caused to him along with his plaint. Also, the proof of having received the SMS was also not required to be filed at the time of filing of the plaint Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 7 of 10 which could be produced by him during his evidence. However, along with plaintiff, he has filed copy of legal notice as well as reply to the same to support his claim/cause of action.
23. Considering the averments made in the plaint and the documents filed along with it, it can safely be held that plaint clearly discloses the cause of action for filing the suit.
24. This issue is, accordingly, decided against the defendants no.1 & 2 and in favour of plaintiff.
Issue no. 1:
"Whether the plaintiff is entitled for the decree of damages for Rs. 5,00,000/ against the defendants, as prayed for?OPP."
25. The onus to prove this issue was on the plaintiff. The plaintiff is seeking recovery of damages of Rs. 5,00,000/ from the defendants on two fold grounds. Firstly, it is alleged that at the time of obtaining a credit card from ICICI Bank by defendant no. 1, defendant no. 2 had given the mobile number of the plaintiff to the bank. Secondly, it is alleged that due to nonpayment or default of defendant no. 1 in making payment against the said credit card, plaintiff had received one SMS dated 12.06.2010 because of which his name, fame, reputation and status was lowered in the society and his credibility as Director, Actor and Producer was also lowered. In order to obtain a decree of damages in his favour, the plaintiff was supposed to prove these two facts/averments on record. However, perusal of evidence shows that plaintiff has miserably failed to prove either of these facts/averments.
Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 8 of 1026. The plaintiff has not examined any witness from ICICI bank to show that his mobile number was got registered with the bank at the time of obtaining credit card by defendant no. 1. There is no justified explanation of non examination of this witness by the plaintiff. Without evidence from the bank which could have been easily obtained by the plaintiff, mere ocular testimony of plaintiff/PW1 on this aspect is not sufficient for proving the said fact.
27. As regards the receipt of SMS dated 12.06.2010 by the plaintiff regarding nonpayment of outstanding amount of credit card, there is again no evidence regarding the same on record. Although, the text of the alleged SMS has been reproduced by the plaintiff in paragraph no. 2 of his plaint but he neither placed on record a print out of the said SMS nor supported the same with any certificate under Section 65 B of Indian Evidence Act. The witness from Airtel was examined by the plaintiff as PW2. Even this witness has been unable to prove the receipt of the exact SMS, text of which is reproduced by him in paragraph no. 2 of his plaint and paragraph no. 3 of his affidavit by the plaintiff. Accordingly, there is no evidence on record to show that any such SMS was ever received by the plaintiff regarding nonpayment of outstanding dues on the credit card of defendant no. 1.
28. Even if, it is presumed on the basis of testimony of PW1 that he had received such SMS from ICICI Bank, there is no evidence on record to show as to how the receipt of the said SMS on the mobile of the plaintiff had resulted in lowering his name, fame, reputation, status and credibility as a Director, Actor and Producer of T.V. serial in the society as alleged by him. There is not even an iota of evidence on record to show any damage which has been caused to the plaintiff because of receipt of said SMS. In fact, even the pleadings of the plaintiff are silent regarding any alleged Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 9 of 10 damage cause to him due to receipt of said SMS.
29. Considering the overall evidence on record, I have no hesitation in holding that plaintiff has miserably failed to support his claim for damages of Rs. 5,00,000/ with any cogent evidence.
30. This issue is, accordingly, decided in favour of the defendants and against the plaintiff holding that plaintiff is not entitled to receive damages of Rs. 5,00,000/ as prayed by him.
RELIEF:
31. In view of my issue wise findings given above, the suit of the plaintiff is dismissed.
32. No order as to cost.
33. Decree sheet be prepared accordingly.
34. File be consigned to record room after due compliance.
Digitally signedSHIVALI by SHIVALI SHARMA Announced in the open court SHARMA Date: 2022.04.06 on: 06.04.2022. 16:26:29 +0530 (SHIVALI SHARMA) ADJ03/WEST/THC/DELHI 06.04.2022 Civ. DJ. No. 611143/2016 Anil Bhasin vs Jasbir Kaur Page 10 of 10