Delhi District Court
Punjab National Bank vs Smt. Meenakshi Monga on 31 July, 2023
IN THE COURT OF SH. ARUN GOEL, ADJ-03,
SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI
CS No. 110/2018
CNR No. DLSH01-000741-2018
Punjab National Bank
7, Bhikaji Cama Place
Africa Avenue, New Delhi.
...Plaintiff
Versus
1. Smt. Meenakshi Monga
D/o late Sh. D. P. Monga
R/o H. NO. 7, First Floor,
Pocket G-1, Sector 11,
Rohini, Delhi.
2. Sh. Munish Monga
S/o late Sh. D. P. Monga
R/o H. No. 114, First Floor,
Pocket F-2, Sector 16,
Rohini, Delhi.
3. Smt. Madhu Monga
D/o late Sh. D. P. Monga
R/o H. No. 91, Bhogal Road,
Jungpura, Bhogal,
New Delhi.
4. Sh. B. K. Kalra (now deceased)
through LRs
(a) Smt. Meena Kalra (wife)
(b) Sh. Kunal Kalra (son)
(c) Ms. Swati Kalra (daughter)
All R/o House No. 196, Second Floor,
Old Gupta Colony,
Maharana Pratap Bagh, Delhi.
...Defendants
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 1 of 23
Date of Institution of suit : 13.10.1999
Date of final arguments : 31.07.2023
Date of Judgment : 31.07.2023
JUDGMENT
1. This is a suit for recovery of Rs.56,98,830/- along with interest pendente lite and future filed by the Plaintiff bank against the Defendants.
2(a). The case of Plaintiff is that it is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head office at Africa Avenue, New Delhi and branch office and Rani Bagh. Plaintiff state that its Manager Sh. B. M. Aggarwal is well conversant with the facts of present suit and is empowered and competent to sign, verify and institute the suits on behalf of Plaintiff bank.
(b). It is stated that during course of business, Defendants no. 1 to 3 opened a Joint Savings Fund Account bearing No. 20479 on 08.08.1993 with the Plaintiff bank at Rani Bagh branch with instructions that any of them can operate the same. Several cheques books were issued to them, details of which are mentioned herein as under:-
Cheque Book No. Date of issue
866781- 866800 22.06.1994
559101-599120 23.04.1997
700541-500760 01.01.1998
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 2 of 23
(c). It is stated that Defendants no. 1 to 3 kept
operating the aforesaid account with the Plaintiff bank from time to time and the cheques issued by Defendant no. 1 were presented in clearing and honoured by Plaintiff bank from time to time.
(d). Plaintiff alleged that Defendant no. 4 was posted as its Special Assistant in Branch office at Rani Bagh, Delhi from 02.07.1992 to 06.03.1998.
(e). It is alleged that during routine inspection of Rani Bagh Branch, it was discovered that on 06.03.1998 there had been a large sale bungling and irregularities in several accounts of the said branch and aforesaid account No. 20479 in the name of 'Defendants no. 1 to 3' was one of those. Plaintiff alleged that during period of November 1996 to January 1998, Defendants with intend to defraud the Plaintiff bank, conspired with each other and adopted the following modus operandi :-
-(i). by giving credit through transfer voucher to the party and debiting the ODD account of the Plaintiff bank without any supporting documents viz. Cheque, draft etc.
-(ii). By giving credit, without instrument on the basis of mere clearing voucher and debiting the amount to the imprest clearing account of Plaintiff bank.
-(iii). By destroying the cheques issued by the account holders received by Plaintiff bank in CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 3 of 23 Inward Clearing and debited the amount of cheque to Clearing Imprest Account of Plaintiff bank instead of debiting the same to the account of party and thereby not affecting the balance of the account of Account holder on which the cheques were drawn.
(f) Plaintiff narrated various incidences in plaint about the fraud committed by Defendants no. 1 to 3 in connivance with Defendant no. 4, which are as follows :-
● that on 02.11.1996, Defendants no. 1 to 3 got a Credit voucher of Rs.2,30,000/- prepared without any supporting instrument and got the said amount credited in SF Account no.20479 in the name of Defendants no. 1 to 3 by debiting the imprest clearing account of plaintiff.
● that on 05.11.1996, Defendant no. 1 withdrew amounts of Rs.1,00,000/- and Rs.75,000/- vide Cheques no. 866791 and 866792. Again on 09.11.1996, Defendant no. 1 withdrew an amount of Rs.50,000/- via Cheque no. 866793 dated 09.11.1996.
● that on 10.04.1997, Defendants no. 1 to 3 got a credit clearing voucher of Rs.1,37,375/- prepared without any supporting instrument and got the amount credited in SF Account no.20479 in the name of Defendants no. 1 to 3 by debiting the imprest clearing account of plaintiff.
● that on 19.04.1997, Defendants no. 1 to 3 got a sum of Rs.60,000/- transferred to S.F. Account no. 23872 to one Mr. R .K. Singla.CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 4 of 23
● that on 21.04.1997, Defendant no. 1 to 3 got a credit clearing voucher of Rs.1,68,500/- prepared without any supporting instrument and got the amount credited in S. F. Account No. 20479 by debiting the imprest account of plaintiff and on 23.04.1997, Defendant no. 1 withdrew an amount of Rs.1,70,000/- through Cheque No. 559101 dated 23.04.1997.
● that on 17.05.1997, Defendants no. 1 to 3 in connivance with Defendant no. 4 got a Cheque no. 559105 of Rs.2,30,000/- destroyed when the said cheque was received by Plaintiff in Inward clearing from Bank of America, Delhi and got the amount of said cheque debited to Imprest account of Plaintiff bank instead of debiting the cheque amount to the account of Defendants no. 1 to 3 and thus not affecting the account of Defendants no. 1 to 3.
● that on 31.05.1997, aforesaid incident again took place in respect of Cheque no. 559107 of Rs.50,000/- which was received by Plaintiff bank in Inward clearing from Punjab National Bank, Maharani Bagh, New Delhi.
● that on 12.06.1997, defendants no. 1 to 3 got a credit clearing voucher of Rs.49,500/- prepared without any supporting instrument and got the amount credited in S. F. Account No. 20479 in the name of Defendants no. 1 to 3 by debiting the CDPC suspense account of plaintiff bank and on 12.06.1997 & 14.06.1997, Defendant no. 1 withdrew amounts of Rs.35,000/- and Rs.21,000/- through withdrawal forms.CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 5 of 23
● that on 21.08.1997, Defendants no. 1 to 3 got a credit clearing voucher of Rs.2,33,000/- prepared without any supporting instrument and got the aid amount credited in S. F. Account no. 20479 by debiting the imprest account of Plaintiff.
● that on 27.09.1997, Defendant no. 1 withdrew an amount of Rs.40,000/- through withdrawal form.
● that on 27.09.1997, Defendants no. 1 to 3 transferred an amount of Rs.75,000/- to S. F. Account no. 19222 of Sh. R. P. Kalra and Sh. B. K. Kalra, defendant no 4 herein and a sum of Rs.75,000/- to S. F. Account no.
23872 of Sh. R. K. Singla.
● that on 01.10.1997, Defendant no. 1 withdrew sum of Rs.33,000/- through withdrawal form.
● That Defendant no. 1 issued Cheque no. 575323 dated 23.09.1997 of Rs.9,600/- against the aforesaid credit and said cheque was paid by plaintiff bank in clearing on 27.09.1997.
● that on 01.11.1997, defendants no. 1 to 3 got two Cheques No. 559113 and 55914 of Rs.2,50,000/- and Rs.4,90,000/- destroyed when the same were received in Inward clearing from Canara Bank, Asaf Ali Road, New Delhi and Canara Bank, Connaught Circus, New Delhi and got the said amounts debited to Imprest account of plaintiff instead of debiting the same to account of defendants no. 1 CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 6 of 23 to 3 and thus not affecting the account of Defendants no. 1 to 3.
● that on 09.12.1997, Defendant no. 1 to 3 got the Cheque no. 559118 of Rs.3,00,000/- destroyed when the same was received in Inward clearing from Canara Bank, Connaught Place, New Delhi and got the amount debited to imprest account of plaintiff instead of debiting the cheque amount to their accounts and thus not affecting their account; that on 27.12.1997, similar destroy of Cheque no. 559112 of Rs.17,000/- and debit of amount from Imprest account took place.
● that on 03.01.1998, Defendants no. 1 to 3 got two credit transfer vouchers of Rs.1,00,000/- each prepared without any supporting instrument and got the amount credited in S.F.Account no. 20479 by debiting the imprest clearing account of plaintiff.
● that Defendants no. 1 to 3 issued 2 Cheques No. 700541 and 700542 both dated 01.01.1998 of Rs.1,00,000/- each and total sum of Rs.2,00,000/- in favour of M/s. Sumangal & Company against the aforesaid credit and the said chques were duly paid by Plaintiff bank in clearing on 03.01.1998 ● that again on 05.01.1998, incident of destroy of cheque no. 700543 of Rs.60,000/- when received in Inward clearing and debit of cheque amount from imprest account took place.
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 7 of 23● that again on 10.01.1998, preparation of Credit voucher of Rs.25,000/- and credit of amount in S.F. Account by debiting ODD account took place; and on the same day, defendant no. 1 withdrew an amount of Rs.25,000/- through withdrawal form .
● that on 16.01.1998, incident of destroy of 5 cheques no. 700544 (though mentioned as '700543' in plaint), 700551, 700554, 700552 and 700547 of Rs.2,50,000/- when received in Inward clearing and debit of cheque amount from imprest account took place.
(g). Plaintiff alleged that in the aforesaid manner, Defendants no. 1 to 3 in connivance with Defendant no. 4 during the period from November 1996 to January 1998 got credited total amount of Rs.42,00,375/- in their account no. 20479 on different dates, out of which, an amount of Rs.40,99,260.65 was withdrawn by them from time to time and made a wrongful gain of the said amount to themselves which they had utilized for their own gain and advantage and they are jointly and severally liable to refund the said amount to plaintiff along with interest.
(h). Plaintiff alleged in para no. 26 of Plaint that defendant no. 4 being officials posted at the branch had an access to the account books, documents and other materials of plaintiff bank; had managed to remove and destroy some of records. However, from the lists of clearing house, Plaintiff bank has been able to discover/detect the cheques in question. Plaintiff further alleged that defendant no. 4 unauthorizedly credited the aforesaid imprest account by debiting Head office CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 8 of 23 account of erstwhile New Bank of India which was a frozen account and could not be operated without specific authority in writing from the Head office.
(i) Plaintiff alleged that it has made several efforts to recover the said amount from defendants along with interest of Rs 15,99,569.35/- but in vain. Plaintiff sent Legal Notice dated 10.02.1999 upon defendants but defendants failed to make payment of aforesaid amount.
(j) Plaintiff in para no. 33 of Plaint alleged that on 06.03.1998, when the fraud was detected by it, an FIR No. 144/98 was registered under Section 406/409/420/468, 471/477A/120B of IPC with Police station Saraswati vihar, Delhi. Hence, the present suit has been filed for recovery of Rs 56,98,830.00/- alongwith pendente lite and future interest at rate of 16.32% per annum.
3(a). Summons of the suit were served upon Defendants. Joint written statement was filed by Defendants no. 1 to 3, wherein they took preliminary objection that this court has no jurisdiction to entertain and try the present suit. They denied of having opened any account being Joint Savings Fund Account No. 20479 and its operation. They stated that it is a case of fraud and cheating perpetrated and engineered by Plaintiff's own staff of Rani Bagh Branch in connivance with each other and with the sole purpose of duping the bank by stealthily opening various fictitious accounts in the name of known persons who are not even aware of their accounts. The factum of registration of FIR against them as well as Defendant CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 9 of 23 no. 4 not denied by them, however, defendants no. 1 and 2 state that they were dropped during police investigation. Defendants claimed that there is no recoverable debt against them. Defendant states that documents supplied by plaintiff are not complete and legible and some of important documents like Transfer Vouchers, Cheques issued by Defendants with photocopy of the back side of the cheques containing signature of the person encashing the cheque etc. have not been supplied and therefore, it is not possible for the defendants to find out who has encashed the cheques.
(b). On merits, they denied of having opened any Joint Savings Fund account on 8.08.1993 and issuance of cheque books as alleged by plaintiff in para no. 2 of plaint. They stated that they have no knowledge of the Joint Savings Fund Account No. 20479 being operated in their names. They admitted that Defendant no. 4 was employee of Plaintiff. They admitted that Defendant no. 4 happens to be nephew (sister's son) of Defendant no. 3 and first cousin of defendants no .1 and 2. They stated that they are no way connected or concerned with the large scale bungling and irregularities etc. or conspiracy with any one as alleged by Plaintiff. Contents of plaint are denied to the extent that defendants no. 1 to 3 in connivance with Defendant no. 4 got prepared credit vouchers on different dates for different amounts without any supporting instruments and got the amount credited in Saving Fund Account no. 20479 by debiting the imprest clearing account of the plaintiff ban.
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 10 of 23(c). Defendants stated that no account holder or any outsider can have any access to the account books, registers, bank records, credit vouchers, transfer vouchers etc. and use or misuse the same for his personal unlawful gains. Defendants further stated that it is the handiwork of the staff members of the bank branch who have the access and working knowledge of the banking system. Connivance and conspiracy of staff member is the essential components of such a bungling and fraud are apparent on the face of it and the innocent account holders like the answering defendants cannot be made scape goats and liable merely because their names have been misused.
(d). Defendants denied of incidents mentioned in the plaint. Rest of averments made in the plaint are denied. Defendants prayed for rejection of plaint.
4(a). Defendant no. 4 filed his written statement, wherein he took preliminary objections that plaintiff has come to this court with clean hands and has suppressed the relevant facts with a view to abuse the process of law & to defraud the answering defendant; that plaintiff has filed various documents and it has failed to produce the same despite notice under Order 12 Rule 8 CPC. It is alleged that present suit against defendant no. 4 is alleged to be on account of fraud a FIR No. 144/98 under Section 406/409/420/468/471/477A/120-B of IPC on 06.03.1998 and the criminal court proceedings are still pending and yet not decided nor any charge has been framed against him, therefore, plaintiff has no cause of action to sue the answering defendant.
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 11 of 23(b). Defendant stated that present suit is pre-matured and matter in issue is directly and substantially issue in criminal proceedings between the parties. Defendant alleged that present civil proceedings are identical set of facts as of criminal proceedings. Defendant stated that the allegations are not only grave but also discloses complicated question of law and facts and as such, he prayed for stay of present proceedings during the pendency of criminal proceedings.
(c). Defendant no. 4 stated that present suit is based upon a transaction between Plaintiff bank and other defendants, who are customer of bank and there is no privity of contract between Plaintiff and the defendant no.4 regarding such transactions. It is specifically stated by Defendant no. 4 that the Plaintiff has admitted in plaint that amount sought to be recovered being the outstanding against the other Defendants, hence there cannot be said to be a cause of action against the defendant no. 4.
(d). Defendant no. 4 stated that Plaintiff has filed various suits in different courts including Hon'ble High Court of Delhi. Defendant specifically alleged that Defendant no. 4 is not liable to pay any amount to the Bank for omission, commission and negligence on the part of the Bank and other employees of Plaintiff bank. Defendant stated that present suit is bad for non joinder of necessary parties i.e. M/s. Nutan Associates and M/s. Sugam Investment as well as misjoinder of answering defendant against whom no cause of action arose.
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 12 of 23(e). On merits, defendant no. 4 denied that Sh. B. M. Aggarwal is the GPA of Plaintiff bank and is not competent & duly authorized person to sign, verify and institute the present suit. Defendant stated that it is wrong and denied that there had been a large scale bungling or irregularity found in several account of the said branch and Savings Fund Account no 20479 in the name of Defendant no. 4. He has denied that he had conspired with Defendants no. 1 to 3 to defraud the plaintiff bank in the manner it is alleged. He denied all the allegations are false, frivolous, vexatious and baseless and without any authenticated proof or documents. Defendant no. 4 submitted that he is the victim of omission and negligence on the part of other employees of the plaintiff bank who had been involved in false, frivolous and vexatious criminal litigation by the vested interest of the plaintiff bank's other employees for wrongful gain with a view to defame and lower the prestige of the answering defendant in the estimation of his relatives, friends and associates. He denied all the allegations against him in toto.
(f). Defendant no. 4 specifically denied that any fake voucher was prepared to debit of ODD account of the Plaintiff bank without any supporting document. Defendant no. 4 further denied the fact that he connived with Defendants no. 1 and 2 and got the fake credit vouchers prepared and got credited the amount mentioned thereunder in the aforesaid account without any instrument while the credit is always made on submission of the instrument for collection by the customers. Defendant no. 4 denied that any cheque was destroyed by him in connivance with CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 13 of 23 Defendants no.1 to 3. He also denied the fact that any such amount was debited to clearing Imprest Account without any authority. He stated that all the charges are false and malicious just to defame the Defendant no. 4.
Rest of allegations in the plaint are denied and he prayed for dismissal of the suit.
5. Replication filed by plaintiff to the written statement of Defendant no. 4, wherein he denied the contents of written statement and reiterated the averments made in plaint.
6. Vide Order dated 13.08.2008, Hon'ble High Court of Delhi had framed the following issues:-
1. Whether this Court has pecuniary jurisdiction to entertain the suit? OPP
2. Whether the suit is bad for suppression of material facts? OPD
3. Whether the suit is barred under Order 2 Rule 2 Code of Civil Procedure? OPD
4. Whether the suit is barred by limitation? OPD
5. Whether the suit is bad for non joinder of necessary parties? OPD
6. Whether the suit discloses no cause of action?
OPD
7. Whether there is no privity of contract between the plaintiff and defendant no. 2, Sh. B. K. Kalra, CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 14 of 23 regarding transaction in dispute in respect of the account in question? OPD
8. Whether the suit has been filed by a duly authorized person? OPP
9. Whether the plaintiff is entitled to the suit amount? If so, to what amount? OPP
10. Relief.
Thereafter, matter was posted for evidence of plaintiff.
7. Perusal of Order dated 03.04.2006 reveals that Defendant no. 4 expired on 02.06.2005. Record reveals that opportunity was given to his LRs to file their defence, if any, by Order dated 24.04.2019. However, none appeared for them. Record further reveals that Defendants no. 1 to 4 were proceeded exparte vide Order dated 09.08.2019 of Ld. Predecessor.
8(a). Plaintiff examined its AR Sh. B. M. Agarwal as PW-1, who tendered his affidavit in evidence as Ex. PW1/A. He proved following documents:-
S. Marked/Exhibite Name of documents No. d documents
1. Ex. PW1/1 Copy of power of attorney
2. Ex. PW1/2 Statement of acount duly certified under Bankers Books Evidence Act CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 15 of 23
(b). Plaintiff also examined Sh. J. B. Gupta, Chief Manager at Punjab National Bank, Retail Asset Branch (RAB), Rohtak, Haryana, Delhi as PW-2, who has filed his affidavit Ex.
PW2/A in evidence. PW-2 relied upon documents viz. Ex. PW2/1, Ex. PW2/3, Ex. PW2/5 to Ex. PW2/11, Ex. PW2/13 to Ex. PW2/25, Ex. PW2/27 to Ex. PW2/29, Ex. PW2/31 to Ex. PW2/47 and the bank is not able to produce Ex. PW2/2, Ex. PW2/4, Ex. PW2/12, Ex. PW2/26 and Ex. PW2/30.
S. Marked/Exhi Name of documents No. bited documents
1. Ex. PW2/1 Account opening form
2. Ex. PW2/2 Specimen signatures Card
3. Ex. PW2/3 Cheque book issue register
4. Ex. PW2/4 Certified copy of Cheque no. 866791
5. Ex. PW2/5 Certified copy of Cheque no. 866792
6. Ex. PW2/6 Certified copy of Cheque No. 866793
7. Ex. PW2/7 Credit clear voucher of Rs.1,37,375/-
dated 09.04.1997
8. Ex. PW2/8 & Debit and credit dated 19.04.1997 9
9. Ex. PW2/10 Credit clearing voucher dated 21.04.1997 of Rs.1,68,500/-
10. Ex. PW2/11 Cheque No. 559101
11. Ex. PW2/12 Inward clearing list of cheque no.
559105
12. Ex. PW2/13 Inward clearing list of Cheque no.
559107
13. Ex. PW2/14 Credit clearing voucher of Rs.49,500/-
14. Ex. PW2/15 Withdrawal forms of Rs.35,000/- and & 16 Rs.21,000/-
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 16 of 2315. Ex. PW2/17 Credit clearing voucher of Rs.2,73,000/- dated 21.08.1997
16. Ex. PW2/18 Withdrawal slip dated 27.09.1997 of Rs.40,000/-
17. Ex. PW2/19 Debit vouchers of Rs.75,000/- dated & 20 27.09.1997
18. Ex. PW2/21 Withdrawal slip dated 01.10.1997
19. Ex. PW2/22 Clearing list regarding Chque no.
573523 dated 23.09.1997
20. Ex. PW2/23 Imprest clearing Account register in respect of Cheques no. 559113 and 559114
21. Ex. PW2/24 Imprest clearing Account register in respect of Cheques no. 559116 and 559117 on 01.12.1997
22. Ex. PW2/25 Inward clearing list showing presentation of Cheque no. 559118 of Rs.3,00,000/- on 09.12.1997
23. Ex. PW2/26 Inward clearing list showing presentation of Chqeu no. 559112 on 27.12.1997
24. Ex. PW2/27 Two credit transfer vouchers of & 28 Rs.1,00,000/- each dated 03.01.1998
25. Ex. PW2/29 Clearing list showing presentation of Cheques no. 700541 and 700542 on 03.01.1998
26. Ex. PW2/30 Inward clearing list showing presentation of Cheque no. 700543
27. Ex. PW2/31 Debit voucher dated 10.01.1998 of & 32 Rs.25,000/- and withdrawal form
28. Ex. PW2/33 Inward clearing list of presentation of Cheques n o. 700543, 70551, 700554,700552, 700547 of Rs.2,50,000/- each on 16.01.1998
29. Ex. PW2/34 Copy of legal demand notice dated 10.02.1999 CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 17 of 23
30. Ex. PW2/35 Postal receipts to 41
31. Ex. PW2/42 UPC
32. Ex. PW2/43 Returned envelops to 47
9. Record reveals that though PW-2 tendered his affidavit in evidence and relied upon various documents, however, submissions were made by Ld. Counsel for plaintiff bank that the relevant documents were filed in another criminal case and opportunity was given to Plaintiff bank to file those documents. Record further reveals that despite opportunity, PW- 2 failed to file certified copies of such documents and vide Order dated 15.10.2014, opportunity of Plaintiff bank to file such documents stands closed.
10. I have heard final arguments of Ld. Counsel for plaintiff and perused the material available on record.
11. My issuewise findings are as under:-
ISSUES NO. 2 to 7:
2 :Whether the suit is bad for suppression of material facts? OPD 3 :Whether the suit is barred under Order 2 Rule 2 Code of Civil Procedure? OPD 4: Whether the suit is barred by limitation? OPD 5: Whether the suit is bad for non joinder of necessary parties? OPD 6: Whether the suit discloses no cause of action?
OPD CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 18 of 23 7: Whether there is no privity of contract between the plaintiff and defendant no. 2, Sh. B. K. Kalra, regarding transaction in dispute in respect of the account in question? OPD
12. The aforesaid issues are taken up together as findings on aforesaid issues are inter connected. The onus to prove these issues were upon Defendants. Though written statement was filed by Defendants no. 1 to 3 as well as Defendant no. 4, however, they have not come into witness box to prove their stand. They were proceeded exparte by Order dated 09.08.2019. Since there is no evidence led by Defendants, the aforesaid issues are answered against the defendants.
ISSUE NO. 1:Whether this Court has pecuniary jurisdiction to entertain the suit? OPP
13. The onus to prove this issue was upon Plaintiff. Plaintiff has filed the present suit for recovery of Rs.56,98,830/- along with interest pendente lite and future against the Defendants. Objection was raised by Defendant no. 1 to 3 regarding pecuniary jurisdiction of this court. However, no evidence was led on their behalf in this suit to support their plea. Plaintiff examined Sh. B. M. Agarwal as PW-1 in support of its suit but he was not cross examined by the defendants on this aspect. Plaintiff has filed recovery of Rs.56,98,830/- and this amount is well within the pecuniary jurisdiction of this court. As such, issue no. 1 stands decided in favour of plaintiff.
CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 19 of 23ISSUE NO.8 :Whether the suit has been filed by a duly authorized person? OPP
14. The onus to prove this issue was upon Plaintiff. It is stated by Plaintiff bank that Sh. B. M. Agarwal is the duly authorized person to file the present suit and examined him as PW-1. In examination in chief, he has relied upon his power of attorney Ex. PW1/1 . Photocopy of the same was produced and it was objected to the mode of proof as the original was not produced. In his cross examination, Ld. Counsel for Defendant no. 4 had specifically asked about the original power of attorney, but PW-1 stated that the same is not traceable.
15. The suit was AR on behalf of plaintiff and an objection regarding his authority was taken then it was essential for the Plaintiff bank to produce the original power of attorney relating to its authorized person Sh. B. M. Agarwal showing that he was duly authorized person to sign and verify the plaint/facts. However, the same has not been produced by PW-1. In such circumstances, issue no. 8 stands decided against the plaintiff.
ISSUES NO. 9:Whether the plaintiff is entitled to the suit amount? If so, to what amount? OPP
16. The onus to prove this issue was upon Plaintiff bank. Plaintiff in this suit has examined two witnesses I.e. Sh. B. M. Agarwal as PW-1 and Sh. J. B. Gupta as PW-2 to substantiate its CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 20 of 23 plea that Defendants no.1 to 3 in connivance with Defendant no. 4 has cheated the Plaintiff bank, which resulted in loss of Rs.56,98,830/- to the Plaintiff bank.
17. It is relevant herein to mention that PW-2 during examination has not produced the original documents and time was sought to produce the same as the same were filed in a criminal case. He was also given an opportunity to file the certified copies of the same but despite opportunities, PW-2 failed to file certified copies of the same and opportunity was closed vide Order dated 15.10.2014. Thereafter, matter was listed for cross examination of PW-2. Order dated 03.09.2019 reveals that it was stated on behalf of plaintiff that it could not secure presence of PW-2 for presenting him for cross examination as PW-2 has retired from services and as such, vide said Order, PW-2 was discharged as having not been submitted for cross examination. As such, there is only examination-in-chief of PW-2 on record and defendants have not been given an opportunity to cross examine this witness.
18. It is settled law that in absence of any cross/ evidence of witness, the same cannot be read in evidence. The Hon'ble Delhi High Court in case titled as Varinder Pal Singh v Davinder Pal Singh 2018 SCC OnLine Del 12220 while dealing with the right to cross-examine has observed as follows:
"11.Since the defendant failed to appear before this court, the right of the defendant to lead evidence was closed on 1st May, 2018 and he was proceeded ex- parte on 9th August, 2018. The defendant has only produced his examination-in-chief. It is settled law CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 21 of 23 that an affidavit is not evidence within Section 3 of The Evidence Act, 1972. Filing of an affidavit of one's own statement in one's own favour, cannot be regarded as sufficient evidence for any court. Where the deponent is available for cross-examination, an opportunity has to be given to the other side to cross examine him. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination (See Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465). Therefore, the defendant has failed to prove the oral family settlement and has failed to discharge the onus cast on him."
19. Further, PW-1 has only relied upon statement of account Ex.PW1/2 to show that amount is due against the Defendants. Section 34 of the Indian Evidence Act deals with the relevancy of the statement of account the same is reproduced as below:
"34. Entries in books of account including those maintained in an electronic form when relevant.-- Entries in books of accounts including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 22 of 23
20. Perusal of Section 34 of the Indian Evidence Act reveals that statement of account alone is not enough to fix the liability of the opposite party. There has to be supporting evidence to establish the liability of the defendant. The statement of account can only be a corroborating piece of evidence to the other evidence establishing the liability.
21. In this case, Plaintiff has stated that fraud has been committed by Defendants no. 1 to 3 in connivance with Defendant no. 4. The essential thing for the Plaintiff bank is to bring on record showing as to how the fraud was committed and amount was due against Defendants.
22. In absence of any cogent evidence on record, the aforesaid issues were not proved by the Plaintiff bank. Plaintiff has failed to establish the liability of defendants and hence, same are answered against the Plaintiff bank.
Relief.
23. In view of my findings on aforesaid issues, present suit stands dismissed with no order as to costs. Decree sheet of dismissal be prepared. Thereafter, file be consigned to record room.
Announced in the Open Court Digitally signed on this 31st day of July, 2023 ARUN by ARUN GOEL Date:
2023.07.31 GOEL 17:57:28 +0530 (ARUN GOEL) ADDITIONAL DISTRICT JUDGE -03, SHAHDARA, KKD COURTS, DELHI CS no. 110/2018 Punjab National Bank v. Smt. Meenakshi Monga Page 23 of 23