Delhi District Court
Corporate Office At vs M/S Green Shield Consumer Care Pvt. Ltd on 6 January, 2021
IN THE COURT OF MS. SWARANA KANTA SHARMA
PRINCIPAL DISTT. & SESSIONS JUDGE,
NORTH DISTRICT, ROHINI COURTS, DELHI.
CS No. 59193/16
ICICI Bank Ltd.
Having its branch office at :
2nd Floor, Videocon Tower
Block E1, Jhandewalan Extension
New Delhi - 110055
Registered office at :
Landmark, Race Course Circle
Alkapuri, Vadodara390007
Corporate Office at :
ICICI Bank Towers
Bandra Kurla Complex
Mumbai 400051 .........Plaintiff
Vs.
1. M/s Green Shield Consumer Care Pvt. Ltd.
Having its office at :
81C, Platinum Enclave, IBlock
Sector18, Rohini
Delhi - 110085
2. Sh. Manoj Gautam
s/o Sh. Radhey Sham
1409/18, Mohalla Sainiam, Hisar
Haryana125001
CS No. 59193/16 Page 1 of 24
3. Sh. Tuhin Chaudhary
s/o Sh. Tapas Chaudhary
92C, Platinum Appt., 2nd Floor
Sector18, Near Mountnbu Inter School, Rohini
New Delhi110085 ...........Defendants
Date of institution : 22.07.2015
Date of clarifications : 06.01.2021
Date of pronouncement : 06.01.2021
Appearance :
Sh. Manish Deewan, learned Counsel for the plaintiff bank.
Sh. Sunil Kumar Aggarwal, learned Counsel for the defendants.
JUDGMENT (Through video conferencing)
1. By this Judgment, I shall decide the present suit filed by the plaintiff against the defendants thereby seeking recovery of Rs. 4,10,532.28 along with interest, averring therein that the plaintiff is a banking company registered under the Indian Companies Act, 1956, and is engaged in the business of financing vehicles apart from other portfolios; that the plaintiff has authorized its Regional Debt Manager Sh. Neeraj Sainger to file, sign, verify and institute the present suit and to follow the legal proceedings on behalf of the plaintiff bank.
2. It is the case of the plaintiff bank that defendants no. 2 & 3, who are Directors of defendant no. 1 company, had approached and requested the plaintiff bank on behalf of defendant no. 1 for grant of overdraft facility and accordingly, in view of the documents submitted CS No. 59193/16 Page 2 of 24 by defendants no. 2 & 3, the plaintiff bank had sanctioned and granted an overdraft facility for an amount of Rs. 4,00,000/ to them in the month of September 2007 by way of current account no. 036905000736 on certain terms & conditions as contained in Terms & Conditions Governing the OD Facility dated 22.09.2007. The said overdraft facility was granted by the plaintiff bank to the defendants for a validity period of 12 month w.e.f. the date of its sanction i.e. 22.09.2007 and the facility was revolving in nature. As per the terms & conditions, the defendants were liable to deposit the interest on the said facility in the account and on all amounts shown as outstanding from time to time at the foot of the relevant account monthly in each year on the 30th day of each month at the rate of interest which was 1.75% per annum above the sum of the ICICI Bank Benchmark Advance Rate and the Cash Credit Risk Premium prevailing on each day that such facility remain outstanding (the "Applicable Rate - ODF"), plus applicable interest tax or other statutory levy, if any. As on date of said Terms & Conditions Governing The OD Facility dated 22.09.2007, the ICICI Bank Benchmark Advance Rate was 15.75% per annum, the Cash Credit Risk Premium was 0.50% per annum and Applicable Rate - Facility was 18.00% per annum. The defendants had further agreed to pay processing fee of Rs. 10,000/ of the facility plus applicable interest or other statutory levies.
3. It is further averred that after availing the said overdraft CS No. 59193/16 Page 3 of 24 facility upto the maximum limit of Rs. 4,00,000/, the defendants failed to reach the milestones fixed by the plaintiff bank and failed to adhere to the financial discipline and acted contrary to the terms & conditions as they constantly defaulted in repayment of contractual dues/charges and interest and further failed to regularize the account, despite repeated reminders, requests and demands made by the officials/officers of the plaintiff bank.
4. It is further averred that thereafter, finding no other alternative, the plaintiff bank got issued a legal notice dated 13.02.2014 to the defendants calling upon them to make payment of contractual dues/charges/interest amounting to Rs. 4,10,532.28 which was due as on 01.02.2014, within seven days from the receipt of the said legal notice. Despite receipt of the said legal notice, the defendants failed to comply with the terms of the same.
5. It is further averred that as per the statement of account dated 20.01.2014 maintained by the plaintiff bank in its ordinary and usual course of business, an amount of Rs. 4,10,532.28 was due and payable by the defendants to the plaintiff bank.
6. It is further averred that defendant no. 1 is a private limited company and defendants no. 2 & 3 are the Directors of defendant no. 1 and are responsible for the day to day affairs of defendant no. 1.
CS No. 59193/16 Page 4 of 24Defendants no. 2 & 3 had stood as guarantors at the time of availing aforesaid overdraft facility from the plaintiff bank and had undertaken that they will make the payments of outstanding amount in case of default.
On these allegations, the plaintiff bank has filed the present suit against the defendants seeking recovery of outstanding amount of Rs. 4,10,532.28 along with interest.
7. The defendants have contested the suit of the plaintiff and have filed a joint written statement thereby taking various preliminary objections to the effect that there is no cause of action in favour of the plaintiff for filing the present suit; that the suit has been filed on the basis of forged and fabricated documents and the defendants are not liable to pay even a single penny to the plaintiff bank in respect of any overdraft facility.
8. It is further stated that the plaintiff has failed to bring on record any letter written by any of the defendants requesting it for grant of alleged overdraft facility. It is further stated that the letter dated 22.09.2007 was signed on 14.09.2007 by the officer of the plaintiff bank, which shows its fabrication as how can a document be signed before the creation of the same. It is further stated that no such overdraft facility account was ever maintained by the plaintiff bank at its Rohini Branch and that the defendant no. 1 was/is only CS No. 59193/16 Page 5 of 24 having its bank account at Shalimar Bagh Branch of the plaintiff bank.
9. It is further stated that alleged guarantee agreement brought on record by the plaintiff bank is absolutely illegal, unlawful and void as it does not contain the date of its execution by any of the defendants. Receipt of alleged legal notice dated 13.02.2014 is also denied by the defendants.
10. It is further stated that all the statements of account brought on record by the plaintiff bank are absolutely false and fabricated documents which can be seen from the following facts :
(a) The officials of Shalimar Bagh Branch of the plaintiff bank had approached the defendants at their office in the month of August 2007 and had represented to the defendants that overdraft facility shall be granted to defendant no. 1 company at the total rate of simple interest of 12% per annum without any other charges by way of promotional financing policy of the plaintiff for helping small and new enterprises like defendant no. 1 to grow at a very low cost and charges suiting their capacity.
(b) The officials of the plaintiff bank had further asked for copy of PAN card and phone bills of the defendants and had taken their signatures on several blank papers representing that they need the same as a proof that they had contacted the defendants and that CS No. 59193/16 Page 6 of 24 after approval of the overdraft facility by the senior officers, the defendants will be called for the preparation, signatures and finalization of the documents of overdraft facility and one copy of fully executed and approved documents will be retained by the bank while the second copy shall be given to the defendants for their record.
(c) For months together, none of the defendants were intimated about grant of such overdraft facility on any particular date by the plaintiff.
(d) None of the defendants ever authorized the officials of the plaintiff bank to illegally draw/print/filling the blanks of the blank documents signed by the defendants;
(e) The officials of the plaintiff bank had never taken consent of any of the defendants for such illegal drawing/printing/filling the blanks of the blank documents;
(f) The blank documents were drawn/printed/filled by the officials of the plaintiff bank with false information and it was never brought to the knowledge of any of the defendants;
(g) The false and fabricated documents were used by the officials of the plaintiff bank to grant overdraft facility without the knowledge of the defendants in violation of RBI "Guidelines on Fair Practices Code for Lenders" DBOD. Leg. No. BC. 104/09.07.007/200203;
(h) The copy of such false and fabricated documents were never shown and given to any of the defendants in violation of RBI guidelines;
CS No. 59193/16 Page 7 of 24(i) Through such false and fabricated documents, the plaintiff is illegally claiming the interest @ 18% per annum on false basis of Benchmark Advance Rate of 15.75% together with Cash Credit Risk Premium of 0.5% and unknown over charging of 1.75% whereas its officials represented that the rate of interest will be simple interest of 12% per annum;
(j) That each and every entry of the summary of accounts filed by the plaintiff bank is false and wrong;
(k) The defendants have given full details of fraud being committed by the plaintiff in their summary of accounts even in the calculation of the interest at the alleged and false rate of 18% per annum which shows a total difference of Rs. 47,224.97 even in the calculation of interest by the plaintiff;
(l) The defendants have given full details of fraud being committed by the plaintiff in their summary of accounts by levying false and baseless charges against the guidelines of RBI viz;
(i) The plaintiff is illegally claiming processing fee of Rs. 10,000/ which it cannot even claim and levy as per BCSBI Code of banks commitment to micro & small enterprises and the business of defendant no. 1 falls within the parameter of "Micro & Small Enterprises";
(ii) Further, the summary of accounts shows deposit by officials of the plaintiff bank in violation of RBI Guidelines contained in Master Circular - Prudential norms on CS No. 59193/16 Page 8 of 24 income recognition, asset classification and provisioning pertaining to advances to evade BCSBI commitments to MSEs in regards to Nursing Sick MSE and for settlement of dues.
(m) The stamp and initials on summary of accounts filed by the plaintiff bank are of its Sector8, Rohini Branch, Delhi, whereas defendant no. 1 maintained its account at Shalimar Bagh Branch of plaintiff bank, which itself shows falsity, forgery and fabrication of accounts by the officials of Rohini Branch of the plaintiff bank who had no knowledge of the facts of the case.
11. It is further stated that except the month of overdraft facility being September 2007 and the date of legal notice being 13.02.2014, no other dates are found mentioned in the entire suit. It is further stated that the plaintiff has failed to bring on record alleged legal notice dated 13.02.2014 and its postal receipt to prove the service of the same upon the defendants.
It is accordingly prayed by the defendants that the present suit may be dismissed as the same is based on false, forged and fabricated documents and is without any cause of action.
12. From the pleadings of the parties and documents on record, following issues were settled on 15.10.2015 :
(i) Whether the plaintiff is entitled to money decree for a sum of Rs. 4,10,532.28 as on 20.01.2014 along with CS No. 59193/16 Page 9 of 24 pendente lite and future interest @ 24% p.a. with cost of the suit against the defendants? OPP.
(ii) Relief.
13. In order to prove its case, the plaintiff bank has examined its Regional Debt Manager (AR) Sh. Neeraj Sainger who appeared in the witness box as PW1 and tendered his affidavit as Ex. PW1/A in evidence, which is on the identical lines as per the plaint. PW1 also relied upon various documents i.e. Exs. PW1/1 to PW1/5 and Mark A.
14. The document Ex. PW1/1 is the copy of Power of Attorney;
Ex. PW1/2 is the original copy of terms & conditions regarding the said overdraft facility; Ex. PW1/3 is the guarantee executed by defendants no. 2 & 3; Ex. PW1/4 is the statement of account; Ex. PW1/5 is the copy of legal notice dated 13.02.2014 and Mark X is the copy of postal receipt.
PW1 has been duly cross examined.
No other PW has been examined by the plaintiff except PW1.
15. On the other hand, defendant no. 3 Sh. Tuhin Chaudhuri appeared in the witness box as DW1 on behalf of the defendants and tendered his affidavit as Ex. DW3/A in evidence, which is on the identical lines as per the written statement. DW1 has also relied upon various documents, the details of which are hereas under :
CS No. 59193/16 Page 10 of 24(i) Ex. DW3/1 is the certified copy of power of attorney handed over to defendant no. 3 by defendants no. 1 & 2;
(ii) Ex. DW3/2 is the Circular dated 22.08.2007 of Reserve Bank of India;
(iii) Ex. DW3/3 are the Guidelines of RBI dated 05.05.2003;
(iv) Ex. DW3/4 are Annexures D1 i.e. summary of accounts;
(v) Ex. DW3/5 is Annexures D2 i.e. summary of account;
(vi) Ex. DW3/6 is the copy of BCSBI;
(vii) Ex. DW3/7 is the copy of master circular and
(viii) Ex. DW3/8 is the copy of Code of Bank's Commitment to MSE.
16. DW1 has been cross examined by learned Counsel for the defendant. No other DW has been examined by the defendant.
17. I have heard arguments addressed by the learned Counsel for both the parties and have also gone through the entire record carefully.
18. Considering the pleadings, issues settled, evidence led and arguments addressed, my issuewise findings are as under : ISSUE No. (i) :
Whether the plaintiff is entitled to money decree for a sum of Rs. 4,10,532.28 as on 20.01.2014 along with pendente lite and future interest @ 24% p.a. with cost of the suit against the defendants? OPP.CS No. 59193/16 Page 11 of 24
19. The onus to prove this issue is upon the plaintiff.
20. The plaintiff has filed the present suit for recovery of Rs.
4,10,532.28 along with interests and in support of its contentions, it has examined its Regional Debt Manager (AR) Sh. Neeraj Sainger who appeared in the witness box as PW1 and tendered his affidavit as Ex. PW1/A in evidence, which is on the identical lines as per the plaint and has proved various documents on record, as mentioned above.
21. During his cross examination, PW1 has admitted that he has not filed or proved on record any application submitted by any of the defendants with the plaintiff bank for grant of said overdraft facility in current account no. 036905000736. He has voluntarily added that the bank issues sanction of facilities to its customers and the same was duly acknowledged by the defendants. He has further stated that he has brought on record sanction of facility vide Ex. PW1/2. He has further admitted that Ex. PW1/2 (wrongly mentioned as Ex. PW1/A in cross examination) is dated 22.09.2007 at point X to X. He has further admitted that Ex. PW1/2 is predated and was signed by the officer of the plaintiff bank at point Y to Y on 19.09.2007. He denied the suggestion that Ex. PW1/2 is a forged documents being dated 22.09.2007 and signed on 19.09.2007. He has further admitted that whenever the plaintiff bank sanctions any CS No. 59193/16 Page 12 of 24 overdraft facility, it sends intimation of the same to the person on whose favour the same is sanctioned. He has further admitted that the plaintiff has not filed any document which shows that intimation of sanction of overdraft facility was sent to the defendants. He did not know that as per RBI guidelines and BCSBI codes, whether the plaintiff bank specifes the rate of interest offered to the customer on OD application form as he is not from sales department. He further did not know whether the plaintiff bank is charging processing fee for loan upto 5,00,000/ against the guidelines of RBI and BCSBI codes. He has further admitted that none of the documents exhibited by him has been signed by the executants in his presence. He has further admitted that he was not present when Exs. PW1/1 to PW1/5 (colly) were signed by the executing persons. He has denied the suggestion that he has wrongly exhibited the documents Exs. PW1/1 to PW1/5 (colly). He has further stated that he does not have any document or register of the plaintiff bank which can show that any of the defendants were ever supplied the copies of Exs. PW1/2 and PW1/3. He does not know who had filled up the blanks which were existing on Ex. PW1/2.
22. During his further cross examination, PW1 further admitted that none of the alleged signatures of the defendants on Ex. PW1/2 bear date of their signing the document. He has further admitted that para no. 9 of Ex. PW1/2 shows that the OD facility was to seize on CS No. 59193/16 Page 13 of 24 expiry of 12 months from the date of issuance. He has further admitted that he does not have any document to show that any of the defendants had ever demanded/authorized the plaintiff bank to renew the OD facility after its cessation on 21.09.2008 as he was not from the concerned department of the plaintiff bank. He did not know whether continuation of the OD facility after 22.09.2008 was illegal and without consent and authority of the defendants. He further did not know whether the defendants had ever sent any request letter for renewal of said OD facility. He further did not know whether defendants no. 2 & 3 in their personal capacity had ever sent any letter of no objection for their continuing as guarantor after the renewal of OD in favour of defendant no. 1 by the plaintiff bank. He further did not know whether guarantee Ex. PW1/3 is illegal, unlawful and void and does not bind the defendants no. 2 & 3. He has admitted that Ex. PW1/3 does not contain the date of its signing by any of defendants no. 2 & 3. He does not know whether Ex. PW1/3 was never accepted by defendants no. 2 & 3. He further did not know whether defendants no. 2 & 3 in their personal capacity never authorized the plaintiff for continuation of the OD facility after 22.09.2008. He has admitted that Ex. PW1/4 is not certified by any of the authorized officials of Shalimar Bagh Branch of the plaintiff bank. He voluntarily added that it is certified by Rohini Branch of the plaintiff bank as a central process. He has further admitted that even Rohini Branch of the plaintiff bank as a central process has not CS No. 59193/16 Page 14 of 24 certified Ex. PW1/4 as per Banker's Books of Evidence Act. He has further admitted that the affidavit is also not filed along with Ex. PW1/4 as per Evidence Act. He did not know whether each and every entry in Ex. PW1/4 is false and wrong. He further did not know whether the plaintiff bank is a member of DCSBI. He has further admitted that the business of defendant no. 1 falls within micro and small enterprises. He has further admitted that the maximum interest amount for OD if daily used on Rs. 4,00,000/ for the entire amount at the rate of 18% per annum for a month will be Rs. 6000/. He has denied the suggestion that the plaintiff has made false calculation of interest or has levied false charges. He has admitted that he does not have or any such document on record of acknowledgment of debt by any of the defendants. He did not know when the OD account of the defendants was declared as 'NPA'. He has further admitted that after the account was declared 'NPA', interest is not charged by the plaintiff bank, however, the NPA tagging is not reflected in the statement of accounts.
23. PW1 has further admitted that the legal notice Ex. PW1/5 (colly) shows demand of Rs. 4,20,532.28 and not Rs. 4,10,532.28 as mentioned in the suit. He voluntarily added that the notice Ex. PW1/5 was issued before the account was declared as 'NPA'. He did not know whether none of the defendants had received any legal notice from the plaintiff bank demanding any debt amount. He CS No. 59193/16 Page 15 of 24 voluntarily added that the said notice was issued and the copy of the same along with the copy of postal receipt to all defendants have been filed. He has denied the suggestion that the document Mark X (colly) exhibited by him is a false and fabricated document. He has further admitted that Ex. PW1/5 (colly) at point X to X shows the date of notice as 13.02.2014. He has further admitted that Mark X at point A to A shows the date of 12.02.2014.
24. On the other hand, Defendant no. 3 Sh. Tuhin Chaudhuri appeared in the witness box as DW1 and tendered his affidavit as Ex. DW3/A in evidence, which is on the identical lines as per the written statement. DW1 has also relied upon various documents on record, as discussed herein above.
25. During his cross examination, DW1 has stated that he is the Director of defendant no. 1 company since the inception of the same. He has further stated that he never approached the plaintiff bank for grant of any loan, however, the signatures on the documents are of his. He voluntarily added that there were blank spaces on the proforma agreement and that the officials of the plaintiff bank had taken his signatures on blank papers to show that the bank officials approached his company and he showed interest for overdraft facility. He has further stated that the blank spaces on the documents were not filled and they had not consented for any CS No. 59193/16 Page 16 of 24 contract of loan. He has further stated that the terms & conditions mentioned in the loan agreement were blank and were not filled by hand at the time of taking their signatures by the officials of the plaintiff bank.
26. DW1 has further stated that the document "Guarantee" Ex.
PW1/3 bears his signatures. He voluntarily added that it was a proforma agreement with blank spaces and was undated. He has further stated that he had never given guarantee through Ex. PW1/3. He has further stated that one copy of PAN card was also provided bearing his signatures just to show their interest the bank OD and their identity. He has further stated that he came to know about the fraud played by the plaintiff bank when he had received summons of the suit filed by the plaintiff bank.
27. DW1 has further stated that he did know about any deduction made by the plaintiff bank from his bank account since the year 2008 till the date of filing of the suit and the receipt of summons by him. He did not lodge any complaint or FIR against the bank officials for the said fraud. He has further stated that the documents exhibited by the bank official in the present suit, are not genuine. He has admitted that he has not filed any police complaint or lodged any FIR against the bank officials after coming to know about the false suit filed by the plaintiff bank. He has further stated that he did not CS No. 59193/16 Page 17 of 24 approach the plaintiff bank for the return of documents signed by him or for any inquiry which were given to bank officials at the time of their first visit to the defendant company.
28. The defendants have not denied their signatures on the documents proved on record by the plaintiff, however, they have stated that their signatures were obtained by the officials of the plaintiff bank on blank spaces on proforma agreements which were later on misused by the plaintiff bank. The plaintiff bank has proved on record documents the original copy of terms & conditions regarding the said overdraft facility/sanction of facilities as Ex. PW1/2; the guarantee executed by defendants no. 2 & 3 as Ex. PW1/3; the statement of account as Ex. PW1/4; the copy of legal notice dated 13.02.2014 as Ex. PW1/5 and Mark X is the copy of postal receipt.
29. The defendants have taken a stand that the letter dated 22.09.2007 addressed by the plaintiff bank to the defendants informing them about sanction of alleged overdraft facilities was signed by the Officer of the plaintiff bank on 14.09.2007, which proves fabrication of the said document as how can a document be signed before the creation of the same. During his cross examination, PW1 Sh. Neeraj Sainger i.e. Regional Debt Manager (AR) of the plaintiff bank has admitted that he has not filed or proved CS No. 59193/16 Page 18 of 24 on record any application submitted by any of the defendants with the plaintiff bank for grant of said overdraft facility in current account no. 036905000736. He has voluntarily added that the bank issues sanction of facilities to its customers and the same was duly acknowledged by the defendants. He has proved on record sanction of overdraft facility vide Ex. PW1/2. He has, however, admitted that Ex. PW1/2 (wrongly mentioned as Ex. PW1/A in cross examination) is dated 22.09.2007 at point X to X. He has also admitted that Ex. PW1/2 is predated and has been signed by the officer of the plaintiff bank at point Y to Y on 19.09.2007. This admission made by PW1 creates doubt regarding genuineness of Ex. PW1/2. The plaintiff bank is totally silent about the date of 19.09.2007 which has been put by its officer on Ex. PW1/2 which was executed on 22.09.2007. The plaintiff bank even did not chose to file replication to the written statement to clarify this mistake and in the written arguments as well, the plaintiff bank has not clarified about the said discrepancy on Ex. PW1/2.
30. PW1 has further admitted that whenever the plaintiff bank sanctions any overdraft facility, it sends intimation of the same to the person in whose favour the same is sanctioned. He has further admitted that the plaintiff has not filed any such document which shows that intimation of sanction of overdraft facility was sent to the defendants in the present case. He has further admitted that none of CS No. 59193/16 Page 19 of 24 the documents exhibited by him have been signed by the executants in his presence. He has further admitted that he was not present when Exs. PW1/1 to PW1/5 (colly) were signed by the executing persons. He has denied the suggestion that he has wrongly exhibited the documents Exs. PW1/1 to PW1/5 (colly). He has further stated that he does not have any document or register of the plaintiff bank which can show that any of the defendants were ever supplied the copies of Exs. PW1/2 and PW1/3. He did not know who had filled up the blanks which were existing on Ex. PW1/2.
31. During his further cross examination, PW1 has further admitted that none of the alleged signatures of the defendants on Ex. PW1/2 bears any date of their signing the document. He has further admitted that para no. 9 of Ex. PW1/2 shows that the OD facility shall seize on expiry of 12 months from the date of letter. He has further admitted that he does not have any document to show that any of the defendants ever demanded/authorized the plaintiff bank to renew the OD facility after its cessation on 21.09.2008. He could not prove that the defendants had ever sent any request letter for renewal of said OD facility or as to whether defendants no. 2 & 3 in their personal capacity had ever sent any letter of no objection for their continuing as guarantor after the renewal of OD in favour of defendant no. 1 by the plaintiff bank. The plaintiff could not prove as to whether defendants no. 2 & 3 in their personal capacity had never authorized CS No. 59193/16 Page 20 of 24 the plaintiff for continuation of the OD facility after 22.09.2008. The witness admitted that Ex. PW1/4 is not certified by any of the authorized officials of Shalimar Bagh Branch of the plaintiff bank or by Rohini Branch of the plaintiff bank as a central process.
32. PW1 has further admitted that the legal notice Ex. PW1/5 (colly) shows demand of Rs. 4,20,532.28 and not Rs. 4,10,532.28 as mentioned in the suit. He does not know whether none of the defendants had received any legal notice from the plaintiff bank demanding any debt amount. He voluntarily added that the said notice was issued and the copy of the same along with the copy of postal receipt to all defendants have been filed. He has denied the suggestion that the document Mark X (colly) exhibited by him is a false and fabricated document. He has further admitted that Ex. PW1/5 (colly) at point X to X shows the date of notice as 13.02.2014. He has further admitted that Mark X at point A to A shows the date of 12.02.2014.
33. In my considered opinion, the above admissions made by PW1 during his cross examination together with the fact that the statement of account Ex. PW1/4 which is a computerized document is not supported by requisite certificate under provisions of Banker's Books of Evidence Act have weakened the case of the plaintiff bank. The plaintiff bank has not proved on record any document to the CS No. 59193/16 Page 21 of 24 effect that intimation of sanction of alleged overdraft facility was ever sent to the defendants. The plaintiff bank has also not proved on record any document or register which could show that any of the defendants had ever been supplied with copies of Exs. PW1/2 and PW1/3. The plaintiff bank has also not proved on record any documents to show that any of the defendants had ever demanded/authorized the plaintiff bank to renew the alleged overdraft facility. The plaintiff bank has also not proved on record any document to prove acknowledgment of debt by any of the defendants towards the plaintiff bank.
34. Further, the statement of account Ex. PW1/4 mentioned hereinabove is a computer generated statement which is secondary evidence in the electronic form, and no certificate U/s 65 B of the Evidence Act or Section 2(A) of Banker's Books of Evidence Act, has bee proved/placed on record.
35. Further, in the matter of "Om Prakash vs. Central Bureau of Investigation", decided by the Honble Delhi High Court on 05.09.2017, it has been held that :
"Thus, in case the statements of accounts exhibited on record are accompanied by certificate as envisaged under Section 2A of the Bankers' Books Evidence Act, the statements of accounts would be admissible in evidence. An objection as to the person exhibiting the said statements of account i.e. an objection to the mode of proof and not admissibility, has to be taken at the time of exhibition of the CS No. 59193/16 Page 22 of 24 documents. Therefore, if certified copies of the statements of accounts have been exhibited as per the requirement of Section 2A of the Act, the statement of account would be admissible and in case no objection to the witness proving the same is taken at the time when the document is exhibited, the document would be validly read in evidence. However, if the statements of accounts have been exhibited without the necessary certificate as contemplated under Section 2A of the Act, the same being inadmissible in evidence, even in the absence of an objection taken as to the mode of proof during trial, this Court cannot read the same in evidence even though marked as an exhibit".
36. Therefore, in the totality of evidence on record, pleadings and considering the doctrine of preponderance of probabilities and the aspect of adverse inference liable to be drawn against the plaintiff bank, the claim of the plaintiff bank is not sustainable.
37. Accordingly, in view of my above discussion as well as the fact that the plaintiff has failed to clarify about the date of 19.09.2007 which has been put by the officer of the plaintiff bank on Ex. PW1/2 which was executed on 22.09.2007, this issue is as per law, therefore, decided against the plaintiff and in favour of the defendants.
Relief :
In view of discussions made herein above, no relief can be granted to the plaintiff. The suit of the plaintiff is, therefore, dismissed. However, parties are left to bear their own costs. Decree CS No. 59193/16 Page 23 of 24 sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by SWARANA SWARANA KANTA Announced through video conferencing KANTA SHARMA Date: 2021.01.07 on 06.01.2021 SHARMA 17:32:54 +0530 (SWARANA KANTA SHARMA) Principal Distt. & Sessions Judge (NORTH) Rohini Courts, Delhi CS No. 59193/16 Page 24 of 24