Delhi District Court
(South Kanara vs Benjiwala Asif Ahmed Husein on 23 February, 2015
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 119/14
Unique Id No. 02401C0328302013
Corporation Bank,
LIC Card Centre, New Delhi,
A body corporate constituted
under the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1980
(Act No.3 of 1980) having its Head Office at Mangalore
(South Kanara, Karnataka State)
and having a branch at Corporation Bank,
LIC Card Centre, 16/10, FF,
Main Arya Samaj Road, Karol Bagh,
New Delhi110005
.......... Plaintiff
VERSUS
Benjiwala Asif Ahmed Husein,
K8, Koshish Flat, Tangerwad,
Jamalpur, Ahmdabad 380 001,
Gujrat.
Also at:
24, Senior Complex,
Near Moti Bakery Danilimda,
Ahmadabad 380 028.
.........Defendant
Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 1/7
SUIT FOR RECOVERY OF RS.2,10,796.14/ ALONG WITH
PENDENT LITE AND FUTURE INTEREST @ 2.50% P.M.
Date of institution : 08.07.2013
Date for reserving for orders : 13.01.2015
Date of decision : 23.02.2015
EX P A R T E J U D G M E N T
1.Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking recovery of 2,10,796.14/ along with pendent lite and future interest @ 2.50% p.m along with finance charges, late payment, over limit and other charges from the date of filing of the suit till its realization along with cost.
2. The present suit has been originally filed by the plaintiff U/o XXXVII CPC, but the same was converted into ordinary suit for recovery vide separate statement of Ld. counsel for the plaintiff dated 18.12.2013.
3. Briefly stated the facts as averred by the plaintiff in the plaint and which are necessary for the disposal of the present suit are as follows: a. The plaintiff is a nationalized bank and LIC Card is being issued by the plaintiff bank in association with LIC Cards Services Ltd.
b. The defendant approached the plaintiff for issuance of LIC Credit Card by filing application no. 963/009 dated 28.04.2010 along with selfattested copies of PAN Card, Pass port, Driving License, Letter dated 29.04.2010 by the defendant to the LICCSL LIC Agent IdCard, LIC Agent's License, ITR with computation of Income, Form No. 16 A. After due consideration, the Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 2/7 plaintiff issued LIC Credit Card no.4628460010273001 with sanctioned limit of Rs.40,000/ on 25.05.2010.
c. The plaintiff has been maintaining the records of the said Credit Card in the name of the defendant in its ordinary and regular course of business. The defendant purchased various articles and also withdrawn the cash from the ATM situated at Jamalpur Branch (Member establishments) by using the LIC credit card from 03.06.2010 to 30.06.2010. By using the said credit card, the defendant has duly accepted the Terms and Conditions of LIC Credit Card and thus, he is liable to remit the outstanding amount within 15 days from the date of generation of statement/ bills which were prepared on 21st of every month.
d. The defendant has failed to pay the outstanding amount and consequently, the plaintiff has issued legal notice dated 01.06.2013 on the defendant, but the defendant has failed to make the payment which includes Rs. 39,924.09/ as the principal amount and Rs.1,70,872.05/ as finance charges, late payment, over limit, other charges and interest.
4. The defendant was duly served on 17.02.2014, but the defendant did not appear and consequently, the defendant was proceeded exparte on 19.05.2014.
5. In order to prove its case, the plaintiff in exparte evidence has examined Sh. Ashwin Trikey, Manager of plaintiff's bank as PW1. He has relied on the documents exhibited as Ex. PW1/1 to Ex. PW1/46. Ex. PW1/1 is application dated 28.04.2010, Ex. PW1/2 to Ex. PW1/38 are the E statements/Bills, Ex. PW1/39 is Recall Notice, Ex. PW1/40 Receipt of Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 3/7 Speed Post, Ex. PW1/41 is Screen Shot, Ex. PW1/42 is Certificate under Bankers Book Evidence Act, Ex. PW1/43 is Terms and conditions, Ex. PW1/44 is Agreement dated 30.03.2009 between plaintiff and LICCSL, Ex. PW1/45 is Agreement between Opus Software Solutions Pvt. Ltd. and the Corporation Bank and Ex. PW1/46 is Power of Attorney along with Mark A to G i.e. the selfattested copies of the identity proof of the defendant.
6. The counsel for the plaintiff has addressed the exparte final arguments.
7. Arguments heard, records perused.
8. In the present matter, the plaintiff by the unrebutted testimony of PW1 has proved Ex. PW1/44 i. e. agreement for issuance of Credit Card executed between the plaintiff and LIC Cards Services Ltd. and Ex. PW1/43 i.e. "LIC Card Most Important Terms and Conditions". Perusal of Clause F of Ex. PW1/43 reveals that in the event of default of the card member which in the present case is the defendant, the bank, which as per the definition Clause (5) means the plaintiff is entitled to initiate recovery proceedings thus, the plaintiff is entitled or has the locus to file the present suit against the defendant.
9. Further, PW1 has proved the loan application form (Ex. PW1/1) submitted by the defendant for issuance of Credit Card along with self attested copies of his PAN Card, Passport and Driving License etc. (Mark A to G) to prove that the Credit Card has been issued by the plaintiff to the defendant and the defendant has availed the Credit Card by making Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 4/7 transactions from the same as evident from Ex. PW1/2 and Ex. PW1/38.
10. The plaintiff has also proved service of demand notice (Ex. PW1/39) on the defendant by speed post (Ex. PW1/40) and since the defendant has failed to pay the outstanding amount to the plaintiff thus, the plaintiff has proved its entitlement to recover the principal amount as prayed.
11. Perusal of Ex. PW1/2 and Ex. PW1/3 reveals that the last transaction of the defendant was dated 30.06.2010 which was due on the defendant on 21.07.2010 as evident from Ex. PW1/3, therefore, the present suit as filed by the plaintiff on 08.07.2013 is within three years limitation period.
12. In the present matter, the principal amount as claimed by the plaintiff is Rs. 39,924.09/ and as per Ex. PW1/41, the defendant's account has been declared non preforming asset with effect from 03.10.2010 however, even after the said declaration which provides the plaintiff immediate cause of action to file the present suit for the recovery of the outstanding amount from the defendant, the plaintiff has not filed the present suit till 08.07.2013 and the plaintiff was continuously levying the late payment charges and the interest @ 2.50% p. m on the defendant which is ex orbitent and in the nature of penalty. However, if the plaintiff would have filed the suit for recovery after the accrual of the cause of action then, the plaintiff will be able to mitigate the loss and will be also be able to recover the amount earlier. Thus, the plaintiff has not acted reasonably and diligently consequently, after the declaration of the loan account of the defendant as non performing asset, the interest is not awarded to the plaintiff at the rate as prayed and the late payment charges are also not Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 5/7 awarded to the plaintiff.
13. But, till that declaration i.e till 03.10.2010, the amount which was due on the defendant was Rs. 46,444.35/inclusive of entire charges as evident from Ex. PW1/5 thus, the plaintiff is entitled for recovery of the same from the defendant.
14. Since the plaintiff is entitled for recovery of Rs.46,444.35/till 03.10.2010, therefore from 04.10.2010, the plaintiff is also entitled for recovery of interest on the said amount as the defendant has failed to pay the outstanding amount to the plaintiff and in the opinion of this court, the grant of simple interest @ 9% p.a. for the subsequent period will meet the ends of justice and same is granted accordingly.
15. Regarding the payment of Service Tax, since the plaintiff was statutorily liable to pay the said amount to the Government till the closing of the loan account of the defendant thus, the plaintiff is also entitled to recover the service tax from the defendant. As per Ex. PW1/6 to Ex. PW1/38, the plaintiff is entitled for recovery of Rs.17,138.06/ as service tax.
16. On the Service Tax of Rs.17,138.06/ also, the simple interest @ 9% p.a. is granted to the plaintiff from the date of filing of the suit till its realization. The plaintiff has also claimed recovery of pendent lite and future service tax, but once, the suit has been instituted, the loan account of the defendant cannot be said to be operational, thus the plaintiff is not entitled for recovery of service tax for the said period. Cost of the suit is Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 6/7 also awarded in favor of the plaintiff.
Relief
17. With aforesaid observations, the suit of the plaintiff is decreed for the following reliefs:
a. Recovery of Rs.49,444.35/ along with simple interest @ 9% p.a. from 04.10.2010 till the realization of the said amount from the defendant.
b. Recovery of Rs.17,138.06/ along with pendent lite and future interest @ 9% p.a. c. Cost.
Decree Sheet be prepared accordingly. File be consigned to the Record Room after necessary compliance.
Announced in the open court today i. e. on 23.02.2015.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /23.02.2015 Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 7/7 CS No. 119/14 Corporation Bank Vs. Banjiwala Asif 23.02.2015 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is decreed for the following reliefs:
a. Recovery of Rs. 49,444.35/ along with simple interest @ 9% p.a. from 04.10.2010 till the realization of the said amount from the defendant.
b. Recovery of Rs.17,138.06/ along with pendent lite and future interest @ 9% p.a. c. Cost.
Decree Sheet be prepared accordingly. File be consigned to the Record Room after necessary compliance.
(SHAMA GUPTA) CIVIL JUDGE03C/THC DELHI /23.02.2015 Suit no.119/14 Corporation Bank Vs. Benjiwala Asif 8/7