Delhi District Court
Through Its Authorized Representative vs Ms. Raman Manocha on 4 August, 2022
DLCT010007372021
IN THE COURT OF SH. SANJEEV KUMAR AGGARWAL : DISTRICT
JUDGE (COMMERCIAL) 01 : CENTRAL, TIS HAZARI COURTS, DELHI
CS (Com.) No. 192/2021
ICICI Bank Ltd.
Having its registered office at :
Near Chakli Circle, Old Padra Road,
Vadodaram, Gujarat 390007
And having its branch office at:
2nd Floor, Videocon Tower,
BlockE1, Jhandewalan Extn.,
New Delhi.
Through its authorized representative
Sh. Pankaj Jain. .....Plaintiff
VERSUS
Ms. Raman Manocha
D/o Sh. Arjun Das Sachdeva
R/o H. No. 105, Manocha Appt.,
Vikas Puri, Mata Modern Sr. Secondary
School, Delhi110018. ...Defendant
Date of Institution : 16.01.2021
Date of reserving judgment : 11.07.2022
Date of Judgment : 04.08.2022
CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 1 of 17
SUIT FOR RECOVERY OF RS. 6,35,976.32.
JUDGMENT
1. Vide this judgment, I shall decide a suit for recovery of Rs. 6,35,976.32 filed by plaintiff bank against the defendant.
2. Briefly stated the case of the plaintiff is that plaintiff is a banking company and the present suit has been filed through its authorized representative Mr. Pankaj Jain.
3. It is further stated that in the month of September, 2014 defendant had approached the plaintiff bank to avail credit card facility from plaintiff bank. It is further stated that plaintiff bank informed the defendant about all the terms and conditions governing the usage of the credit card issued by the plaintiff bank. It is further stated that defendant thereafter on her own consent decided to avail credit card facility from the plaintiff bank and executed some documents on 10.09.2014. It is further stated that plaintiff bank issued a credit card bearing no. 4375510558740004 in the name of defendant which was duly accepted and received by the defendant.
4. It is further stated that despite sufficient time and opportunity, the defendant failed to clear the outstanding amount of Rs. 6,35,976.32 as CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 2 of 17 per statement of account as on 13.02.2020 against the credit card facility to the plaintiff bank. It is further stated that defendant lastly paid an amount of Rs. 10,000/ on 29.11.2019 towards part payment of her outstanding dues. It is further stated that due to nonpayment of outstanding amount by the defendant, plaintiff bank issued the legal notice on 23.01.2020 through its counsel calling upon the defendant to make the payment of the outstanding amount within seven days of the receipt of the aforesaid legal notice but defendant failed to make the payment. Hence, the present suit is filed.
5. Summons of the suit were sent to defendant and and defendant contested the same by filing written statement. In her written statement, defendant has taken following preliminary objections :
i. That defendant is an aged lady who has never done transactions with the alleged credit card ; ii. That this court has no territorial jurisdiction to entertain the present suit as the defendant lives in Vikaspuri and the said credit application form was signed at defendant's home in Vikaspuri. Hence, no cause of action arose in the territorial jurisdiction of this Court;
iii. That plaintiff has filed the present suit with the malafide CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 3 of 17 intention to harass the defendant ;
6. On merit defendant has denied the contents of plaint. It is stated that signature of the defendant was taken on blank form by plaintiff stating that same is application form. It is further stated that plaintiff bank approached the defendant and forced the defendant to take credit card and portrayed the rosy picture and facility of the plaintiff bank. It is denied that defendant is liable to pay a sum of Rs. 6,35,976.32, however, it is admitted that defendant has paid a sum of Rs. 10,000/ as stated in the plaint and thus, defendant has prayed for dismissal of the suit.
7. Plaintiff did not choose to file replication.
8. On the basis of the pleadings of the parties, the Ld. Predecessor has framed following issues vide order dated 8.11.2021 for consideration :
1. Whether the plaintiff bank is entitled to recover a sum of Rs. 6,35,976.32 from the defendant ? OPP.
2. Whether the plaintiff bank is entitled to recover any interest from the defendant, if so on which amount and at what rate and for which period ? OPP.
3. Whether this Court has no territorial jurisdiction to CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 4 of 17 try the present suit in view of preliminary objection no. 5 of the written statement ? OPD.
4. Relief.
9. In order to prove its case, the plaintiff bank has examined only one witness i.e. Mr. Pankaj Jain, its Authorized Representative as PW1 who has led his evidence by way of affidavit Ex.PW1/A. He also relied upon copy of power of attorney Ex. PW1/1, Credit Card application form Ex. PW1/2, Statement of account dated 13.02.2020 Ex. PW1/3 and certificate u/s 65B of Indian Evidence Act, 1872 Ex. PW1/4.
10. On the other hand, in order to prove her case defendant has examined herself as DW1 and led her evidence by way of affidavit Ex.DW1/A. She also relied upon the document i.e., copy of Aadhar Card Ex. DW1/1. Defendant has also examined Smt. Aastha Manocha as DW 2 who has led her evidence by way of affidavit Ex.DW2/A and also relied upon the document i.e., copy of Aadhar Card Ex. DW2/1.
11. Arguments heard from Sh. Manish Dewan, Ld. Counsel for the plaintiff and Sh. Suhail Shah, Ld. Counsel for the defendant.
12. I have considered the arguments and have gone through the record. My issuewise findings are as follows :
13. First of all, I shall decide issue No. 3 as if this issue is decided CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 5 of 17 against the plaintiff then, this court would have no jurisdiction to decide the other issues.
ISSUE NO. 3.
Whether this Court has no territorial jurisdiction to try the present suit in view of preliminary objection no. 5 of the written statement ? OPD.
14. Ld. Counsel for the defendant has contended that neither defendant has taken the credit card from the plaintiff bank at Videocon Tower branch nor has gone their to fill up the form for credit card. The defendant resides in Vikas Puri which does not fall within the jurisdiction of this court therefore, this court has no territorial jurisdiction to decide the case.
15. On the other hand, Ld. Counsel for the plaintiff has argued that since the defendant has come to fill the form for credit card in Videocon Tower branch of ICICI Bank and the credit card was issued after approval of the credit card application form from the said branch therefore, this court has the jurisdiction to decide the present suit.
16. Section 20 of the Code of Civil Procedure provides about the jurisdiction of the court which is reproduced as under : CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 6 of 17 "20. Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court where the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises".
17. Thus from section 20 of CPC it is evident that suit can be file where defendant resides or where cause of action arise. It is undisputed fact that defendant does not resides or carry on business work for gain with in the jurisdiction of ths court. Hence now it is to be seen whether cause of action arose either wholly in part with in jurisdiction of this Court or not.
CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 7 of 17
18. On perusal of testimony of PW1 Sh. Pankaj Jain who is authorized representative of the plaintiff, it is evident that in his testimony led through affidavit Ex. PW1/A, he has deposed that defendant has its Branch office at E3 Jhandewalan Delhi and in the month of Sept. 2014 defendant approached to the plaintiff bank for issuance of credit card and on his written request credit card no. 4375510558740004 was issued which was received by the defendant. He has proved the credit card application form as EXPW1/2.
In his testimony he has not specifically deposed that the defendant has come to the branch of ICICI Bank at Videocon Tower, E3 Jhandelwalan. In his cross examination, he has admitted the suggestion that the plaintiff bank offers for credit card facility to the public at large to the third party through direct sale agents and voluntarily deposed that there job is only to get the application form filled and signed from the customers and to submit the same with the plaintiff bank along with all necessary documents. He has also deposed that direct sales agents have been empaneled with the plaintiff bank and are also authorized to carry out various drives for public at large so as to provide information with regard to credit card facilities and they get the necessary form filled and signed from interested customers during the course of such drives. He CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 8 of 17 also voluntarily deposed that the home visit is however carried out as and when need and requirement is felt by the direct sales agents. He also deposed that he does not aware as to whether credit card application form Ex. PW1/2 was got signed from defendant at her home or not and voluntarily deposed that a different team of officials look into the said aspect and he cannot admit or deny the suggestion that credit card application form Ex. PW1/2 was got filled up from the defendant at her home or not. Thus, from the testimony of PW1, plaintiff bank has failed to prove that the defendant approached to Videocon Tower to sign the application for issuance of credit card.
19. On the other hand defendant / DW1 has categorically deposed that credit card application was filled at her home i.e. 105, Manocha Appt. Vikas Puri Delhi. She has denied that credit card application form was signed at Videocon Tower Branch of plaintiff bank. Considering the testimony of both PW1 and DW1 I found testimony of DW1 more reliable as it she who filled the form and on the other hand it is not the case of DW1 that credit card application form was filled in his presence, rather he even does not know whether same was got filled by agent or where same was got filled. however, I am agree with the contention of Ld. Counsel for plaintiff that on perusal of application form, it is evident that the same CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 9 of 17 bears the place Videocon Tower, New Delhi which is the office of plaintiff bank hence, even if the form was filled at the residence of defendant, same has been processed at the Videocon Tower and after that processing, the credit card was issued to the defendant therefore, in my view part of cause of action has also arose at the office of plaintiff bank at Videocon Tower branch therefore, this court has the territorial jurisdiction to decide the present suit. Issue No. 3 is decided in favour of the plaintiff and against the defendant.
20. ISSUE NO. 1.
Whether the plaintiff bank is entitled to recover a sum of Rs. 6,35,976.32 from the defendant ? OPP.
The onus to prove this issue is upon the plaintiff. Ld. Counsel for the plaintiff has argued that from the testimony of PW1 Sh. Pankaj Jain and documents proved by him Ex. PW1/1 to Ex. PW1/4 it is proved that the defendant was issued a credit card bearing No. 4375510558740004 and the defendant used the credit card but did not pay the amounts and a balance sum of Rs. 6,35,976.32 was due on 2.2.2020 as per statement of account Ex. PW1/3. Thus, the plaintiff is entitled to recover the said amount from the defendant. He further argued that the defendant in the written statement has not taken the ground that she has not used the said CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 10 of 17 credit card as stated by defendant / DW1 in her evidence affidavit Ex. DW1/A therefore, the same cannot be read being beyond pleadings.
21. On the other hand, Ld. Counsel for the defendant has argued that first of all plaintiff through the testimony of PW1 has failed to proved that the person who gave authority to him to file present case has any authority to appoint PW1 as attorney on behalf of plaintiff bank and thus PW1 was not authorized to institute present suit.
22. Ld. Counsel for defendant further argued that the plaintiff has not complied the provision as prescribed in rule 6 of order XI as amended by Commercial Courts Act 2025. He further argued that through the testimony of PW1 Sh. Pankaj Jain has failed to prove that the credit card in question was used by the defendant. He argued that the statement of account Ex. PW1/3 is not proved as per the law because the plaintiff bank has not examined any person who has taken the print out of the said statement of account. He argued that the certificate under Section 65B of the Indian Evidence Act which is Ex. PW1/4 is not as per the provisions of Commercial Courts Act and further, the same is not signed by anyone therefore, the same cannot be relied upon. He further argued that the plaintiff has placed no document to prove that the said credit card was used by the defendant hence, the plaintiff has miserably failed to prove CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 11 of 17 that the plaintiff is entitled to recovery a sum of Rs. 6,35,976.32 from the defendant.
23. I have considered the submissions and have gone through the record.
24. From pleadings of parties and testimonies of PW1 and DW1, it is evident that the defendant has not denied that she has been issued credit card No. 4375510558740004. However, in her testimony she has denied of doing the transaction mentioned in the credit card statement Ex. PW1/3. Order XI of CPC has been amended through Commercial Court amendment Act Act, 2015 and Rule 6 of Order XI Commercial Courts Act, 2015 deals about electronics record which is reproduced as under : "6. Electronic Records. (1) In case of disclosures and inspection of Electronic Records (as defined in the Information Technology Act, 2000) (21 of 2000), furnishing of printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio or video content), copies of electronic records may be furnished in electronic form either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on oath to be filed by a party shall CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 12 of 17 specify
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such electronic record;
(d) the source of such electronic record and date and time when the electronic record was printed;
(e) in case of email ids, details of ownership,
custody and access to such email ids;
(f) in case of documents stored on a computer or
computer resource (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource;
(g) deponent's knowledge of contents and
correctness of contents;
(h) whether the computer or computer resource used
for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource. (4) The parties relying on the printouts or copy in electronic form, of any electronic records, shall not be required to give inspection of electronic records, provided a declaration is CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 13 of 17 made by such party that each such copy, which has been produced, has been made from the original electronic record. (5) The Court may give directions for admissibility of Electronic Records at any stage of the proceedings. (6) Any party may seek directions from the Court and the Court may of its motion issue directions for submission of further proof of any electronic record including metadata or logs before admission of such electronic record".
25. Though certificate under Section 65B of the Indian Evidence Act was filed by the plaintiff alongwith plaint but in the said certificate no details as mention in section 6 above was mentioned in the plaint or certificate / affidavit accompanied with the plaint and thus plaintiff has not complied the provision of rule 6 of order XI. In my view effect of non compliance of provision of rule 6 of order XI will be that electronic record i.e. statement of account cannot be relied upon and has to be excluded.
26. Further, statement of account Ex. PW1/3 is computerized print out can be proved by the manner as provided in Section 65B of Indian Evidence Act. PW1 in his cross examination has admitted that the print out of the statement of account Ex. PW1/3 was taken during the period 13.2.2020 and did not remain in his custody as the same passes through CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 14 of 17 an official channel of the bank before it reaches the concern lawyer with instructions to file the suit. He also admitted that the print out of the same was not taken by him. Further, he stated that the certificate under Section 65B of the Indian Evidence Act bears the name of Manish Mishra who had taken out the print out of the same but on perusal of certificate under Section 65B of the Indian Evidence Act, I found that the same does not bear the signatures of Manish Mishra. Further, Sh. Manish Mishra, who has allegedly issued the said certificate, has not been examined to prove that he has taken the print out of the said statement of account from the computer which has remained in his custody. Therefore, in my view the statement of account Ex. PW1/3 has not been proved as per the provisions of Section 65B of the Indian Evidence Act
27. Further, I am agreed with the submissions of Ld. Counsel for the defendant plaintiff did not proved through any other evidence that that any transaction mentioned in the statement of account Ex. PW1/3 was done by the defendant. Therefore, in these circumstances, I held that the plaintiff has miserably failed to prove its case that the defendant has used the credit card No. 4375510558740004 and a sum of Rs. 6,35,976.32 was due against the defendant. Therefore, I held that the plaintiff is not entitled for recovery of any amount from the defendant. Issue No. 1 decided CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 15 of 17 accordingly in favour of the defendant and against the plaintiff.
28. ISSUE NO. 2.
Whether the plaintiff bank is entitled to recover any interest from the defendant, if so on which amount and at what rate and for which period ? OPP.
The onus to prove this issue is also upon the plaintiff. In view of my findings on issue No. 1, I held that when the plaintiff is not entitled to recovery any amount from the defendant, no question of grant any interest arise. Further, Ld. Counsel for the defendant has also argued that the PW1 as failed to prove that he has been authorized by the plaintiff bank to depose in this case as he has only proved his attorney which is issued by Ms. Vishakha Mulye, Executive Director and Ms. Shanthi Venkatesan, Deputy General Manager in his favour but has not proved any document that Ms. Vishakha Mulye and Ms. Shanthi Venkatesan have any authority to issue power of attorney in favour of Sh. Pankaj Jain PW1.
29. I am fully agreed with the counsel for the defendant that first of all the plaintiff has failed to prove that Sh. Pankaj Jain is the duly constituted attorney of the plaintiff bank as he has only proved the power of attorney which was issued in his favour by Ms. Vishakha Mulye and Ms. Shanthi Venkatesan and has placed no document that they were CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 16 of 17 authorized to issue power of attorney in his favour and thus he was authorized to institute the present suit therefore, the suit may be dismissed on this ground alone. Therefore, this issue is decided against the plaintiff.
30. RELIEF.
In view of my findings on issues No. 2 and 3, I held that the plaintiff is not entitled to any relief and the suit of the plaintiff is dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev Kumar Aggarwal)
on 04.08.2022 DJ (Commercial)01, Central,
THC/Delhi / 04.08.2022.
CS (Comm.) No. 192/2021 ICICI Bank Ltd. Vs. Raman Manocha Page 17 of 17