Delhi District Court
Head Office At Mangalore (South Kanara vs Krishan Pal on 5 December, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 63/13
Unique ID No. 02401C0137282013
MEMO OF PARTIES
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
Krishan Pal
S/o Sh. Chandraki Ram,
491, Village Rajpur, Khampur,
Post Barot, Baghpat250611
Also At:
Shop no. 1, No. 2, Bus Stop
Loni Road, Ghaziabad 201102
..........Defendant
Date of institution of the Suit: 19.03.2013
Date on which judgment was reserved: 19.11.2014
Date of pronouncement of Judgment: 05.12.2014
Suit No. 63/13 Corporation Bank Vs. Krishan Pal 1/10
SUIT FOR RECOVERY OF RS. 96,767.35/ ALONG WITH PENDENTE
LITE AND FUTURE INTEREST @2.50% PER MONTH.
JUDGMENT:
1. The plaintiff has filed the present suit for recovery of amount against the defendant.
2. The plaintiff avers that it is a Nationalized Bank and is 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 office at Corporation Bank, LIC Card Centre, 16/10, FF, Main Arya Samaj Road, Karol Bagh, New Delhi110005.
3. It is averred that the LIC Card is issued by the Corporation Bank in association with LIC Card Services Limited. The Corporation Bank keeps records of the LIC Cards and maintains the same. The LIC Card is marketed by the LIC Cards Services Limited.
4. It is contended that the defendant approached the plaintiff bank for issuing a LIC Credit Card and submitted duly filled and signed application along with self attested copies of identity proof.
5. The plaintiff avers that it sanctioned a limit of Rs. 15,000/ on 08.03.2010 and issued a LIC Credit Card No. 4628460006924005 to Suit No. 63/13 Corporation Bank Vs. Krishan Pal 2/10 defendant. Pursuant to the delivery of the LIC Credit Card to the defendant, plaintiff has been keeping and maintaining the records of the said LIC Credit Card in the name of defendant in its ordinary and regular course of business. The plaintiff contends that the defendant could avail and use the LIC Credit Card by signing on the signature panel of the LIC Credit Card or making use of the LIC Credit Card by using part or full credit or cash limits or by purchasing of goods and services from the Member Establishment or withdrawal of the cash from ATMs. It is averred that the whole transaction of buying and purchasing by the defendant is a part and parcel of tripartite agreement entered into by the plaintiff with the VISA and Merchant Establishments.
6. It is further contended that as per the terms and conditions of the LIC Credit Card, the defendant was under an obligation to sign the original charge slip at the time of purchasing from the Sellers/Member Establishments and to collect original bill from the Sellers/Member Establishments at the time of purchasing of goods/service etc.
7. It is submitted that the defendant purchased goods/things from the stores/shops (Member Establishments) by using the LIC Credit Card on 20.03.2010 and the amount of those goods/things has been claimed by the Seller/Member Establishment through VISA and the same have been paid by Suit No. 63/13 Corporation Bank Vs. Krishan Pal 3/10 the plaintiff by debiting the said LIC Card account of the defendant which was duly reflected in the periodical Statement/Bills of the defendant. The defendant by making use of the LIC Credit Card had accepted the terms and conditions of the LIC Credit Card and the defendant has also agreed to reimburse/remit the outstanding amount within 15 days of the receipt of the st Statement/Bills which were prepared on 21 of every month and the same were regularly dispatched to the defendant by the plaintiff.
8. It is averred that the defendant has been regularly billed by means of periodical monthly Statement/Bills issued by the plaintiff through courier, email and SMS etc. Thereafter, upon receiving the Statement/Bills sent by the plaintiff, the defendant did not raise any dispute and, therefore, defendant was liable to pay the entire amount demanded by the plaintiff regularly by means of periodical monthly Statement/Bills.
9. The plaintiff avers that it repeatedly called upon the defendant to clear and liquidate the dues in respect to the said credit card. The defendant failed to maintain financial discipline and to deposit regular minimum amount in the Card account.
10. Recall Notice dated 01.12.2012 was issued by the plaintiff through Registered Post on 05.12.2012 calling upon the defendant to pay sum of Rs. 87,131.91/ which was due and outstanding in December 2012 against the Suit No. 63/13 Corporation Bank Vs. Krishan Pal 4/10 defendant.
11. No response was received by the plaintiff to the Recall Notice dated 01.12.2012 neither any amount was paid by the defendant in the LIC Credit Card account.
12. The plaintiff states that as on 21.01.2013, an amount of Rs. 96,767.35/ was due and payable by the defendant to the plaintiff with further interest at the rate of 2.50% p.m. alongwith finance charges, late payment, over limit and other charges thereon over and above the agreed rate of interest for the default in making payments which is also payable from the date of filing of the suit till the date of realization. The suit amount of Rs. 96,767.35/ includes outstanding (Principal) of Rs. 15,000/ and finance charges, late payment, over limit, other charges and interest of Rs. 81,767.35/.
13. The suit was initially filed under the summary provisions of Order 37 CPC however vide statement of the counsel and order dated 17.07.2013 the suit was converted to an ordinary suit. The defendant was served by way of publication in the newspaper 'Veer Arjun' dated 26.01.2014 but did not appear despite service and was proceeded exparte on 15.07.2014.
14. In order to prove its case the plaintiff in exparte evidence has examined Sh. Ashwin Tirkey, Manager of the plaintiff bank. He has relied upon the following documents which have been exhibited as Ex. PW1/1 to Suit No. 63/13 Corporation Bank Vs. Krishan Pal 5/10 Ex.PW1/43.
(i) Ex. PW1/1 is the application form for credit card submitted by the defendant to the plaintiff.
(ii) Ex. PW1/2 to Ex. PW1/35 are the statements/bills from 21.04.2010 to 21.01.2013.
(iii)Ex. PW1/36 is the Recall Notice dated 01.12.2012.
(iv) Ex. PW1/37 is the Speed post Post receipt dated 05.12.2012.
(v) Ex. PW1/ 38 is the computer generated Card Holder's Detail/Screen Shot.
(vi)Ex. PW1/39 is the Certificate under Banker's Book of Evidence Act.
(vii)Ex.PW1/40 is the Most Important Terms and Conditions document.
(viii)Ex.PW1/41 is the Agreement for issue of CoBranded/White Label Credit Card (OSR).
(ix) Ex.PW1/42 is the Agreement executed between Opus Software Solutions Pvt. Ltd. and the plaintiff. (OSR)
(x) Ex.PW1/43 is the Power of Attorney in favour of Sh. A.V. Ambastha executed on 29.01.1992. (OSR)
(xi) Mark A is the photocopy of the PAN Card of the defendant.
(xii) Mark B is the photocopy of the Voter I Card of the defendant.
(xiii) Mark C is the photocopy of the ITR of the defendant. Suit No. 63/13 Corporation Bank Vs. Krishan Pal 6/10
15. Thereafter exparte final arguments were advanced by counsel for the plaintiff. Heard and perused.
16. The plaintiff has proved the Agreement for Issue of CoBranded/White Label Credit Card executed between the plaintiff and LIC Cards Services Limited as Ex. PW1/41 (OSR) and the LIC CardMost Important Terms & Conditions document as Ex. PW1/40. These two documents read in conjunction and especially clause F SubClause (2) of Ex. PW1/40 pertaining to recovery procedure in case of default, sufficiently establish the plaintiff's locus to file the present suit for recovery of amount. The testimony of PW1 has been duly corroborated from the documents placed on record. The Credit Card application form submitted by the defendant which has been exhibited as Ex. PW1/1 along with the photocopies of the PAN Card, Voter I Card and Income Tax Return (ITR) of the defendant i.e. Mark A to Mark C and the Credit Card statements Ex. PW1/2 to Ex. PW1/35 which have gone completely uncontroverted duly prove that the defendant availed of the Credit Card services. Despite issuance of the demand notice Ex. PW1/36, the postal receipt of which is exhibited as Ex. PW1/37 and which proves due service thereof on the defendant, the defendant failed to make the payment or reply to the notice. As per the Credit Card statement Ex. PW1/2 the defendant last carried out the transaction through the credit card in question on 20.03.2010. Suit No. 63/13 Corporation Bank Vs. Krishan Pal 7/10 The statement Ex. PW1/2 is dated 21.04.2010 and the payment due date is mentioned therein as 06.05.2010. Obviously the plaintiff would wait till the due date has elapsed in order to initiate recovery proceedings against the defendant in case of default. Calculating the limitation period from the payment due date as mentioned in Ex. PW1/2 i.e. 06.05.2010, the present suit filed on 19.03.2013 is within the three years limitation period. I do not find any reason as to why the unrebutted testimony of the plaintiff's witness PW1 should not be believed, especially when it is duly corroborated by the documents placed on record. Defendant has not appeared despite service and hence it can be safely presumed that he had no defence to put forth.
17. In an ex parte suit, where defendant does not file a written statement or does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition, hence plaintiff is required only to prove a prima facie case, which has been successfully done by the plaintiff in this case atleast so far as the claim relates to the principal/transaction amount which as mentioned in the demand notice Ex. PW1/36 as well as in the plaint is Rs. 15,000/. So far as the plaintiff has sought interest/service charges and penalties the counsel for plaintiff had argued that the interest had been calculated in terms of the document Ex. PW1/40 @ 2.50% per month. However, admittedly the defendant's account became a Non Performing Asset Suit No. 63/13 Corporation Bank Vs. Krishan Pal 8/10 from 03.08.2010 (as is mentioned in the demand notice Ex. PW1/36 itself) and the plaintiff was unable to show any specific agreement with the defendant in relation to interest, penalties and charges to be charged on the defendant's account after the same became a Non Performing Asset. In absence of the same, the interest being sought @ 2.50% per month and other charges like penalties etc. appear to be exorbitant and ends of justice would be met if the plaintiff is awarded simple interest @ 8% per annum on the decreetal amount.
18. As regards the service tax amount which has been claimed by the plaintiff the same is a statutory liability owed to the Government and it was for the defendant to appear and rebut the plaintiff's claim of entitlement to service tax charges or to establish that the service tax has not actually been paid by the plaintiff but defendant failed to do so therefore the plaintiff's claim for service tax charges must be accepted. The plaintiff has filed the calculation sheet of the service tax amount wherein the service tax has been calculated to be Rs. 8,298.80/ and the calculation tallies with the credit card statements on record i.e. Ex. PW1/2 to Ex. PW1/35 wherein the service tax amounts have been mentioned. Thus, the plaintiff is entitled to recovery of the principal amount of Rs. 15,000/ along with the service tax amount of Rs. 8,298.80/ i.e. total amount of Rs. 23,298.80/.
19. Therefore the plaintiff's suit is decreed for a sum of Rs. 23,298.80/ Suit No. 63/13 Corporation Bank Vs. Krishan Pal 9/10 along with simple interest thereon @ 8% per annum from the date of filing of the suit till realization of the amount. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 05.12.2014 Civil Judge - 10 (Central)
05.12.2014
Suit No. 63/13 Corporation Bank Vs. Krishan Pal 10/10