Delhi District Court
Smt. Rekha Devi vs Canara Bank on 23 September, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 16
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 289/11
Smt. Rekha Devi
W/o Late Sh. Gian Chand
R/o 26/40, Shakti Nagar
Delhi110007.
.......... Plaintiff
VERSUS
Canara Bank
Through its Manager
Shakti Nagar Branch,
Nagia Park, Delhi07.
.........Defendant
SUIT FOR DECLARATION, PERMANENT INJUNCTION AND
MANDATORY INJUNCTION
Date of institution : 30.09.2011
Date for reserving for orders : 31.08.2013
Date of decision : 23.09.2013
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff against the defendant thereby seeking following reliefs:
a. Declaration that the defendant is not entitled to effect any recovery of excess payment of pension from the pension account no.
Suit no. 289/11 Rekha Devi Vs. Canara Bank 1/14 1170101023121 of the plaintiff.
b. Permanent injunction thereby restraining the defendant bank, its employee, attorneys, representatives etc. from recovery of excess payment of pension by debiting pension saving bank account no. 1170101023121.
c. Mandatory Injunction directing the defendant to allow the plaintiff to withdraw her pension from pension account no. 1170101023121 and further directing the defendant to credit the pension account by Rs. 64,000/ illegally recovered by the defendant bank from the plaintiff.
2. Briefly stated the facts necessary for the disposal of the present suit as averred by the plaintiff in the plaint are that the plaintiff is the wife of late Sh. Gian Chand who was employee of Central Govt., CPWD and the husband of the plaintiff took retirement and was granted pension vide. Pension Pay Order (herein after wards referred as P.P.O.) No. 431449500679 dated 24.4.1995.
3. It is further pleaded that the husband of the plaintiff died on 05.09.1996 and revised P.P.O No. 431449500679 dated 12.01.2000 was issued by Central Pension Accounting Officer (herein after wards referred as CPAO), M/o Finance, Trikoot II, Complex, Bhikaji Cama Place, New Delhi and the plaintiff being wife of Late Sh. Gian Chand is entitled to the family pension after the death of her husband.
4. It is further stated that as per the revised P.P.O No. 431449500679 Suit no. 289/11 Rekha Devi Vs. Canara Bank 2/14 dated 12.1.2000, the revised pension was fixed as under: At enhanced rate of Rs. 2,634/ from 1.1.1996 to 27.8.2003. At normal rate of Rs. 1,474/ from 28.8.2003 till death/remarriage.
5. It is further stated that the defendant, however, negligently disbursed the enhanced pension even after 28.08.2003 till December 2009 and the plaintiff being an illiterate lady withdraw whatever amount was credited to her.
6. It is further stated that the defendant in January 2010 started disbursing the pension at normal rate and the factum of excess amount came to the knowledge of the plaintiff in May 2010 when the officials of the defendant bank called the plaintiff in the bank. It is averred that the plaintiff along with her daughter in law went to the defendant bank on 19.05.2010 and the defendant threatened her and her daughter in law with the fear of police and obtained cheque of Rs.19,000/ from the plaintiff and also procured the signatures on certain documents and thereafter the defendants started debiting amount from the savings account of the plaintiff with the defendant bank and till date, the bank have debited Rs.64,000/.
7. It is further pleaded that when the plaintiff is not receiving any further pension she is almost at the verge of starvation and finding no alternative she had filed the present suit.
8. It is averred that on 03.02.2011, the defendant had debited the Suit no. 289/11 Rekha Devi Vs. Canara Bank 3/14 pension account of plaintiff by Rs. 45,000/ and on 24.01.2011, the plaintiff had issued a cheque no. 016430 for Rs. 20,000./ in favour of Sh. G. N. Gautam, but despite the fact that on said date, the plaintiff had sufficient amount in her pension account, the said cheque was dishonored by the defendant on 28.01.2011 and the defendant are not allowing the plaintiff to withdraw the pension.
9. It is further pleaded that since the disbursement of the excess amount was because of the negligent act of the defendant, therefore, they are not entitled to recover the same and since the document procured by the defendant from the plaintiff is by exercise of coercion, misrepresentation, therefore, the alleged writing is not binding the plaintiff.
10. The plaintiff further averred that she had issued a legal notice dated 18.03.2010 which was duly replied by the defendant vide reply dated 12.04.2010 and the plaintiff further stated to have sent rejoinder dated 28.6.2010 and on these facts the plaintiff averred to filed the present suit.
11. The defendant contested the suit by filing written statement (herein after wards referred as W.S) wherein he had taken preliminary objections to the effect that the plaint is hit by doctrine of acquiescence and estoppel. It is further averred that suit is bad for nonjoinder of necessary party as CPAO is the necessary party.
12. It is further pleaded that pension is received from the Govt.
Suit no. 289/11 Rekha Devi Vs. Canara Bank 4/14 department and the bank is duty bound to release only the pension for which the pensioner is entitled to receive as per instruction from the concerned department and therefore, the excess amount paid by mistake is recoverable and the same is recovered under intimation/notice to the pensioner.
13. It is further stated that since it is an admitted fact that the plaintiff had received excess amount and in acknowledgment of the same, the plaintiff executed a writing with her own free will whereby assuring the defendant to pay back the entire excess amount of Rs. 1,90,087/, therefore, the defendant is well within its right to debit the pension account.
14. It is further stated that under the authorization of the plaintiff herself, the pension amount of Rs.4,445/ p.m was adjusted towards the satisfaction of excess amount and thus the suit of the plaintiff is not maintainable.
15. The plaintiff had filed replication to the W.S of the defendant wherein the plaintiff denied the contents of the W.S and reiterated the averments made in the plaint.
16. After conclusion of the pleadings, following issues were framed on 15.12.2012:
1. Whether the suit of the plaintiff is bad for non joinder of necessary party?OPD Suit no. 289/11 Rekha Devi Vs. Canara Bank 5/14
2. Whether the plaintiff is not entitled for the relief as claimed because the claim of the plaintiff is hit by acquiescence and estoppel ? OPD
3. Whether the plaintiff is entitled for relief of declaration as prayed for? OPP
4. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP
5. Whether the plaintiff is entitled for relief of mandatory injunction as prayed for? OPP
6. Relief if any.
17. In support of her claim, the plaintiff had examined herself as PW1 and her examination in chief by way of affidavit is Ex. PW1/1 and PW1 had placed reliance on the following documents :
Ex. PW1/A : Cheque bearing no. 016430 dated
24.01.2011 amounting to Rs. 20,000/
Ex. PW1/B : Cheque returning memo dated
28.01.2011.
Ex. PW1/C : Legal notice dated 18.03.2010
Ex. PW1/D : Postal receipt.
Ex. PW1/E : Copy of reply dated 12.04.2010
Ex. PW1/F : Rejoinder dated 28.05.2010.
18. The plaintiff had further examined her daughter in law as PW2 and and her examination in chief by way of affidavit is Ex. PW2/A.
19. In support of his defence the defendant had examined Sh. Rajesh Kumar, Officer of the defendant bank, Canara Bank as DW1 and his Suit no. 289/11 Rekha Devi Vs. Canara Bank 6/14 examination in chief by way of affidavit is Ex. D1 and he had placed reliance on Ex. DW1/A (OSR) but at the time of putting exhibit mark on the same, it was marked as Ex. D/1A.
20. After conclusion of evidence of both the parties, final arguments were addressed by Ld. Counsel for both the parties.
21. Arguments heard and on perusal of the records of the case in the light of rival submissions of both the parties and relevant provision of law, issue wise findings of this court are as follows:
ISSUE No. 1Whether the suit of the plaintiff is bad for non joinder of necessary party?OPD
22. The onus of proving this issue is on the defendant and as per the defendant, CPAO (Central Pension Accounting Officer) is a necessary party, however, in the present case, the court has suo moto impleaded CPAO as a party U/o I Rule 10 CPC, vide order dated 28.11.2011, thus with the impleadment of CPAO, the objection of the defendant as to nonjoinder of necessary party goes.
This issue is decided accordingly.
ISSUE No. 2Whether the plaintiff is not entitled for the relief as claimed because the claim of the plaintiff is hit by acquiescence and estoppel ? OPD Suit no. 289/11 Rekha Devi Vs. Canara Bank 7/14
23. The onus of proving this issue is on the defendant. The defendant had raised the objection that the present suit is hit by doctrine of acquiescence and estoppels.
24. Doctrine of acquiescence means acceptance or agreement by keeping quiet or by not making objections. Thus, the common law doctrine of estoppel by acquiescence is applied when one party gives legal notice to a second party of a fact or claim and second party fails or refute that claim within a reasonable time and thus the second party is said to have acquiesced to the claim, and is thus estopped from challenging it.
25. Thus, by raising the said defense, the defendant had averred that when the plaintiff was made aware of the excess disbursement of pension, then she had willfully signed an under taking, letter dated 18.02.2010 (Ex. D/1A) by virtue of which the defendant become entitled to debit the excess amount as per understanding and now she can not challenge the same by filing the present suit.
26. In the present case, the plaintiff had admitted that she had signed the undertaking, but it is averred that she was forced to sign the same by the defendant by putting her under threat and PW1 duly withstood the testimony during her cross examination and the testimony of PW1 was further corroborated by PW2 who deposed that she accompanied PW1 at the relevant time i. e. 18.02.2010.
27. Further, the plaintiff had relied on legal notice dated 18.03.2010, wherein raising the pleas as stated in the plaint and challenging the Suit no. 289/11 Rekha Devi Vs. Canara Bank 8/14 acknowledgment letter i.e Ex. D/1A, thus it can not be said that the plaintiff has acquiesced to the claim of the defendant, thus the doctrines are not applicable to the facts of the present case.
This issue is thus decided against the defendant.
ISSUE No. 3Whether the plaintiff is entitled for relief of declaration as prayed for? OPP
28. The onus of proving this issue is on the plaintiff and the plaintiff had claimed decree of declaration to the effect that the defendant is not entitled to effect any recovery of excess payment of pension from the pension account no. 1170101023121 of the plaintiff.
29. The plaintiff averred that the defendant negligently disbursed the pension at enhanced rate instead of normal rate even after 28.08.2003 till December 2009 without any fraud, misrepresentation or deception by the plaintiff, thus the defendant is not entitled to recover the same from the plaintiff.
30. The defendant had denied the entitlement of the plaintiff averring that the plaintiff had given a written authorization letter to the Senior Manager to debit the excess amount and it is averred that same was filed as annexure A, but same was not filed by the defendant along with the W.S and was filed on the date of tendering the affidavit and same is exhibited as Ex. D/1A on 18.05.2013.
Suit no. 289/11 Rekha Devi Vs. Canara Bank 9/14
31. The plaintiff/PW1 had reiterated the factum that same was got signed from her by putting her under threat and coercion and the testimony of PW1 went unrebutted during her cross examination and the testimony of PW1 was corroborated by PW2 who had admittedly accompanied the plaintiff at the relevant time.
32. Now, the onus shifts on the defendant to prove absence of any threat or coercion. In order to rebut the same, the defendant had examined DW1, but DW1 had denied any personal knowledge as to Ex. D/1A, averring that he was not posted in defendant's branch at Shakti Nagar at the relevant time and the defendant had failed to get any other witness examined in whose presence Ex. D/1A was signed, to prove Ex. D/1A .
33. Thus, the defendant had failed to rebut the testimony of plaintiff as to exercise of coercion, threat etc. by the defendant, thus the defendant have no right to debit any excess amount from the pension account of the plaintiff.
34. The defendant further averred that since the defendant bank is acting as an intermediary in disbursing pension and the factum of crediting of excess payment is an admitted fact, thus the plaintiff is not entitled to withhold it.
35. To this submission this court is of the considered opinion that the decisions relied by the plaintiff applies to the present case and the defendant is not entitled to recover the amount already paid.
Suit no. 289/11 Rekha Devi Vs. Canara Bank 10/14
36. The plaintiff had placed on reliance on several decisions i. e. decision of Hon'ble Punjab and Haryana High Court in U.O.I Vs. Om Prakash Kapoor (Civil Writ Petition No. 3137 of 2008), wherein it was observed that where an employee is recipient of the benefits extended to them on an erroneous interpretations of any way rule, regulation, circular and instruction and have not in any way contributed to such erroneous interpretation nor have committed any fraud, misrepresentation or deception to obtain the grant of such benefit, the benefit so extended may be stopped for the future, but the amount already paid can not be recovered from them.
37. The plaintiff had further placed reliance on the decision of Hon'ble Apex Court in General Manager, North West Railways & Co. Vs. Chanda Devi ( Civil Appeal No. 5833 of 2007) Decided on 12 December 2007, wherein it was observed that benefit including family pension wrongly granted not to be recovered.
38. Thus, perusal of the aforesaid decisions reveals that if any sum of money is wrongly disbursed to the beneficiary not because of fraud or misrepresentation by beneficiary and which the beneficiary under normal circumstances would not be aware of, if granted can't be recovered from them.
39. In present case, it is nowhere the defence of the defendant that the plaintiff had knowledge of disbursement earlier or that any fraud or deception was played by the plaintiff resulting in disbursement of excess amount, thus the defendant can not recover the excess amount from the Suit no. 289/11 Rekha Devi Vs. Canara Bank 11/14 plaintiff.
Thus the plaintiff is entitled for declaration as prayed.
ISSUE No. 4Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP
40. The onus of proving issue no. 4 is on the plaintiff and since it is decided in issue no. 3 above, that the defendant has no right to deduct the excess amount disbursed to the plaintiff and it is an admitted fact that they are debiting the excess amount from the pension account of the plaintiff bearing no. 1170101023121, thus the plaintiff had duly proved right or obligation existing in his favour and infringement of the same by the defendant, thus plaintiff is entitled for permanent injunction as prayed.
41. Thus, the defendant, its employees, attorneys, representatives etc. are restrained permanently from debiting any amount towards excess payment disbursed to the plaintiff from the pension account bearing no. 1170101023121.
This issue is decided in favour of the plaintiff.
ISSUE No. 5Whether the plaintiff is entitled for relief of mandatory injunction as prayed for? OPP
42. The plaintiff had claimed mandatory injunction claiming direction Suit no. 289/11 Rekha Devi Vs. Canara Bank 12/14 against the defendant from allowing the plaintiff to withdraw her monthly pension from her pension account bearing no. 1170101023121 and further to release Rs. 64,000/ wrongly debited by them from the pension account of the plaintiff.
43. In the present case, since it is already decided in issue no. 3 and 4 above, that the defendant has no right to deduct the excess amount disbursed by them and further they are restrained from debiting any further amount from the pension account of the plaintiff bearing no. 1170101023121, consequently the plaintiff is entitled for a direction against the defendant to allow the plaintiff to withdraw her monthly pension from her pension account bearing no. 1170101023121, thus the plaintiff is entitled for the mandatory injunction as prayed for.
44. The plaintiff had further claimed mandatory injunction thereby directing the defendant to credit the pension account of the plaintiff by Rs. 64,000/ illegally recovered by the defendant from the plaintiff, but perusal of relief prayed reveals that the plaintiff is seeking recovery of Rs. 64,000/ from the defendant in the garb of mandatory injunction without annexing court fee and thus efficacious remedy is to seek recovery of Rs. 64,000/ from the defendant and not mandatory injunction, thus the prayer of mandatory injunction is barred U/s 41 (h) of Specific Relief Act, 1963 and hence the same is denied.
This issue is partly decided in favour of the plaintiff.
Relief Suit no. 289/11 Rekha Devi Vs. Canara Bank 13/14
45. In view of findings of this court on the aforesaid issues, the suit of the plaintiff is partly decreed and the plaintiff is entitled for declaration, permanent injunction as prayed for.
46. The plaintiff is further entitled for mandatory injunction and the defendant, its employees, attorneys, representatives etc. are directed to allow the plaintiff to withdraw her monthly pension from her pension account bearing no. 1170101023121. Parties to bear their own cost.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court today i. e. on 23.09.2013.
(SHAMA GUPTA) CIVIL JUDGEC16/THC DELHI /23.09.2013 Suit no. 289/11 Rekha Devi Vs. Canara Bank 14/14 CS No. 289/11 Rekha Devi Vs. Canara Bank 23.09.2013 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is partly decreed and the plaintiff is entitled for declaration, permanent injunction as prayed for.
The plaintiff is further entitled for mandatory injunction and the defendant, its employees, attorneys, representatives etc. are directed to allow the plaintiff to withdraw her monthly pension from her pension account bearing no. 1170101023121. Parties to bear their own cost.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
(SHAMA GUPTA) CIVIL JUDGEC16/THC DELHI /23.09.2013 Suit no. 289/11 Rekha Devi Vs. Canara Bank 15/14