Bangalore District Court
; Anoop Vayath Narikutty vs The Manager on 30 June, 2015
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 30th june, 2015
PRESENT
SRI K.AMARANARAYANA B.Com., LL.M.
XVIII Addl.City Civil & Sessions Judge.
O.S.No.2786/2008
Plaintiff ; Anoop Vayath Narikutty,
S/o N.Prasadan,
Aged about 39 years,
R/at No.511, 1st Floor,
1st Main Road,
Sadanandha Nagar,
NGEF Layout,
B A N G A L O R E - 560 039.
[Rep.By Sri.L.M., Adv for plaintiff]
--V/s--
Defendants : 1. The Manager,
M/s. ICICI Bank Limited,
RAPG Collections, East Wing,
2nd Floor, Mytree Center,
No.4/10, Hosur Road,
Beside Oxford Engineering
& Dental College,
Bommanahalli,
B A N G A L O R E - 68.
--2-- O.S.No.2786/2008
Also has registered Office at:
"Landmark"
Race Course Circle,
Vadodara - 390 007.
2. The Manager,
M/s. First India Corporation Pvt. Ltd.,
Office at 5th Floor, Block-A,
Lakeview, Bagman Technology Park,
C.V.Raman Nagar, Byrasandra,
B A N G A L O R E - 93.
[Rep.By Sri.V.S., Adv., for D1]
[Rep.By.Sri.S.V.K., Adv., for D2]
Date of institution of suit ; 15.04.2008
Nature of the suit ( Pronote, ; Perpetual & Mandatory
suit for declaration and Injunction and damages.
possession, suit for
injunction etc.)
Date of commencement of ; 11.03.2014
recording of evidence.
Date on which the Judgment ; 30-06-2015
was pronounced.
Total duration: Year/s Month/s day/s
07 02 15
[K.AMARANARAYANA]
XVIII Addl.City Civil & Sessions Judge,
--3-- O.S.No.2786/2008
JUDGMENT
The plaintiff filed this suit against the defendants 1 & 2 prays to pass judgment and decree for perpetual injunction restraining the 1st defendant from exercising general lien and right of set off over his saving bank A/c. No.004701528131 without due process of law when there is dispute pending with 1st defendant, for mandatory injunction directing the 2nd defendant to credit his salary to pay either by cash/cheque/deposit in his schedule nationalized bank SB A/c.No.62004778906 State Bank of Hyderabad, Indiranagar Branch, Bangalore and also to direct defendants either jointly or severally to pay an amount of Rs.1,00,000/- as damages/ compensation and for costs.
2. Case of the plaintiff in brief is as follows:
(a). Plaintiff is an employee of second defendant with employee code No.10761. His salary has been credited to his SB A/c. No.004701528131 with first defendant. The first defendant issued credit cards bearing No.4477 4680 1437 8001 with a running account option permitting him to pay minimum amount until the date of complete repayment. He
--4-- O.S.No.2786/2008 was also issued credit card bearing No.4477 4680 5465 0002 during October 2007 and within one month, while he was using the credit card ATM machine of first defendant bank swallowed the said card without any reasons. However, he was assured with the issuance of new card until date but first defendant failed to substitute the same. He paid minimum amount of Rs.700/- per month for November 2004, later he did not receive monthly statement pertaining to the credit card No.4477 4680 5465 0002 from November 2004 onwards. He was not receiving regular monthly statements pertaining to the credit card No.4477 4738 1437 8001, he was paying monthly minimum through his standing instructions of ECS debit from his SB A/c.No.004701528131 held with first defendant. During November 2007, he suffered from Hepatitis - A and Typhoid.
During October 2007 and onwards, the first defendant without giving any intimation to him exercised their right of general lien by freezing the entire money held in his SB account.
(b). It is further the case of the first defendant, complaining its arbitrary act and calling for cancellation of illegal charges he was advised to lodge his complaint through email. Due to the unilateral act of the first defendant many
--5-- O.S.No.2786/2008 ECS authorization to other banks in respect of personal loan mobile phone bills payments etc., issued by him through his S.B account held with first defendant as dishonored and plaintiff was penalized for the same and lost reputation. The ATM cash withdrawals made by him were returned with a remarks "Transaction declined." first defendant has refused and adamantly continued the lien, and has withdrawn a sum of Rs.72,828/- from his S.B Account and credited to credit card Account No.4477 4738 1437 8001 and made zero balance in his account. The arbitral act of first defendant in exercising their right of set-ff and general lien over the plaintiff's SB Account even while there is pendency of unsolved dispute raised by him through email is against the principles of law and natural justice.
(c). It is further the case of the plaintiff that the defendant has taken away his right of living and the right of his family. The first defendant has not allowed him to draw even part of the amount for livelihood for more than 3 months. He has not executed any documents mentioning the terms and conditions empowering the first defendant to exercise their right to general lien. He came to know through the statement
--6-- O.S.No.2786/2008 of account that the first defendant is not maintaining the accounts properly and there is suppression of facts. The first defendant also claimed additional charges under various head to the credit card accounts in order to make wrongful gain and cause wrongful loss to him. The second defendant colluding with first defendant refused to credit his salary to his another S.B Account. No.62004778906. He had preferred WP.No.9721/2008 before Hon'ble High Court of Karnataka for prohibiting the first defendant's act in exercising the said general lien over his S.B Account. No.004701528131 and for Writ of Mandamus directing first defendant to allow him to draw money from his S.B Account etc. and the same were dismissed reserving his liberty to approach appropriate court of law. On 16.11.2007, the second defendant has deposited his medical bill reimbursement amount also in first defendant S.B Account. Hence, the suit is filed for the above reliefs.
3. Defendants 1 & 2 appeared and filed their written statements. The first defendant in his written statement denied plaint averments besides contending that plaintiff is having SB Account with it. It has admitted about issuing of three credit cards. Further contended that plaintiff is having due a sum of
--7-- O.S.No.2786/2008 Rs.31,597-81 as on 10.3.2008 which was due for payment on 30.3.2008 under credit card No.4477-4680-5465-002, Rs.54,936-74, as on 19.3.2008 which was due for payment on 8.4.2008 under credit card No.5176-3702-0964-6003 and Rs.97,828-88 as on 28.3.2008 which was due for payment on 20.4.2008 under credit card No.4477-4738-1437-8001 in all Rs.1,84,363-43 was due till March 2008 in the credit cards Accounts of plaintiff. They cannot be blamed for swallowing of credit card by ATM machine, plaintiff has not approached them. The plaintiff has given ECS Mandate to the 1st defendant with regard to the payment for the usage made under the credit cards on his SB A/c. No.004701528131. They have every right to exercise its right of "General Lien" on the deposits/ account with first defendant of plaintiff towards due amounts payable to the loan accounts and the same can be adjusted under the right of "set off". Once first defendant blocks the SB Account by exercising lien question of honouring other transactions does not arise. Since there is sufficient balance in all the 3 credit card accounts, 1st defendant is entitled to charge additional charges on the due amount, though SB account of plaintiff is blocked. There is no cause of action for the suit. There are no bonafides in filing
--8-- O.S.No.2786/2008 this suit. On the above grounds prays to dismiss the suit.
(b) The second defendant in its written statement admitted that plaintiff is their employee. The second defendant in its written statement denied all the plaint averments and contended that plaintiff was informed that his salary would be credited to his account to be maintained by the first defendant bank, and he has agreed for the same. ICICI bank is the only bank for salary account of its employees. The salary of the plaintiff has been diligently and regularly credited to his account with first defendant. On the request of the plaintiff, they have paid the salary by issuing a cheque for the month of February & March 2008 on humanitarian grounds. They have been unnecessarily dragged and made as a party in this suit. The damages and the compensation claimed by the plaintiff is barred by limitation. On the above grounds prays to dismiss the suit.
4. Based on the above pleadings, the predecessor in office framed the following issues:
1. Does the plaintiff prove that the first
--9-- O.S.No.2786/2008 defendant has been illegally exercising right of set off and general lien over Saving Bank Account No.004701528131?
(2) Whether the plaintiff is entitled for mandatory injunction against second defendant pertaining to SB A/c.
No.62004778906?
(3) What order or decree the parties are entitled to?
Addl.Issue framed on 2.7.2014:
(1) Whether the second defendant proves that the damages or compensation claimed by the plaintiff is barred by limitation?
5. The plaintiff in order to prove his case examined himself as PW1, got marked Ex.P.1 to P.17 and closed his side. The first defendant got examined its Power of Attorney holder as DW1, got marked Ex.D1 to 5 and closed its side.
6. Heard the arguments of learned counsels Sri.V.S and Sri.S.V.K appearing for defendant No.1 & 2. The learned counsel appearing for defendant No.1 filed written arguments.
--10-- O.S.No.2786/2008 The learned counsel Sri.L.M appearing for plaintiff has not submitted the arguments. .
7. My answer to the above issues are as follows:
Issue No.1 : Negative
Issue No.2 : Negative
Issue No.3 : As per final order.
Addl.Issue No.1 : Negative.
For the following reasons:
REASONS
8. Issue No's.1 to 3 & Addl.Issue No.1: To avoid repetition all the issues are taken together for my consideration. The fact that the plaintiff is working with second defendant vide employee code; 10761 is not in dispute. It is an admitted fact that the plaintiff opened Savings Bank Account with the first defendant. Admittedly, the plaintiff's salary was credited to his S.B.Account No.004701528131 maintained by the first defendant. There is no dispute about the fact that the first defendant issued credit cards bearing No's (1) 4477 4680 5465 0002, (2) 5176 3702 0964 6003,
--11-- O.S.No.2786/2008 (3) 4477 4738 1437 8001 to the plaintiff. The plaintiff asserts that his credit card No.4477 4680 5465 0002 was swallowed in ATM machine during the month of October 2004 and he intimated the same to the first defendant, further the credit card No.4477 4738 1437 8001 was also irregular. The plaintiff further asserts that he as paying minimum payment amount for credit card No.5176 3702 0964 6003 through ECS from his SB Account No.004701528131 and first defendant unilaterally exercised general lien on his SB Account No. 004701528131 and such a lien is illegal and unauthorized. It is to be noted that the first defendant denied the assertion of the plaintiff, and contended that the plaintiff became due a sum of Rs.31,597-81 as on 10.3.2008 which was due for payment on 30.3.2008 under credit card No.4477 4680 5465 0002, Rs.54,936-74 as on 19.3.2008 which was due for payment on 8.4.2008 under credit No.5176 3702 0964 6003 and Rs.97,828-88 as on 28.3.2008 which was due for payment on 20.4.2008 under credit card No.4477 4738 1437 8001 in all Rs.1,84,363-43 was due till March, 2008 in the credit card accounts of plaintiff. It is the contention of the first defendant that they got every right to exercise its right of General Lien on the deposits/account of the plaintiff towards due amounts
--12-- O.S.No.2786/2008 payable to the loan accounts and the same can be adjusted under the right of set-off. Looking to the contention taken by the first defendant it is incumbent upon the plaintiff to prove that the General Lien and set-off exercised by the first defendant over his SB Account No.004701528131 is illegal.
9. Let me go through the evidence placed on record both oral and documentary by both plaintiff and the first defendant. PW1 who is no other than the plaintiff has re- iterated the averments of plaint. As per the admission made by PW1 during cross-examination, the plaintiff was using two credit cards of first defendant and ECS facility was given from his salary account to debit the account of the credit cards. PW1 also admits in the cross-examination that he has not paid any amount since October, 2007. It is seen from the admission made by PW1 during cross-examination that the plaintiff was getting the credit card statement through e-mail. Looking the admission made by PW1 the plaintiff was using the credit cards of first defendant under ECS facility to debit the account of the credit cards from his salary account. Further, the plaintiff has not paid any amount due to the first defendant towards credit card withdrawals since 2007 and was getting
--13-- O.S.No.2786/2008 the credit card statement through e-mail. It is clear from the admission made by PW1 that the withdrawal made by the plaintiff through credit cards from the first defendant was well within the knowledge of plaintiff. The version of PW1 as stated during cross-examination would go to show that the plaintiff had agreement with the first defendant while receiving the credit cards. Thus, the plaintiff is bound by the terms and conditions therein. Therefore, the plaintiff cannot go back the terms and conditions as agreed under the agreement with first defendant.
10. Ex.P1 is the statement of saving bank account of plaintiff for the period from 2005 to 2009. Ex.P1 evident the debit and credit entries of plaintiff. Ex.P1 evident that the plaintiff-withdrawn amount from the first defendant through credit card facility availed by him. Ex.P2 is the mini statement of plaintiff discloses the available balance at Rs.1,24,478.49/-. As per Ex.P2-mini statement there was no balance available as on 27.05.2010. The plaintiff has produced Ex.P2 to show that there was ten transactions done by me January 2009 to March 2009, there must be balance still. The first did not dispute the issuance of notice by the plaintiff through The
--14-- O.S.No.2786/2008 Credit Card Holders Association of India (Regd) as per Ex.P3.
11. A perusal of Ex.P3 it does not disclose the details of withdrawals from the first and the payments made to them through salary by the plaintiff. Ex.P3 is a statement issued at the instance of plaintiff without any details. Therefore, Ex.P2 and Ex.P3 would be of no help to the case of the plaintiff. Ex.P5 is the photocopy of surrendered credit cards. Ex.P5 does not disclose whether the plaintiff surrendered the credit cards prior March, 2008. Ex.P6 is the salary slips of the plaintiff for the months October, 2007 to December, 2007. It is significant to note that the first defendant did not dispute salary particulars of plaintiff for the months October, 2007 to December, 2007. Ex.P9 evident that the plaintiff left the job with second defendant and joined the job with Infosys on 5.10.2009. Ex.P9 evident that the plaintiff ceased to be the employee of second defendant since 5.10.2009. Thus, the suit filed against second defendant does not survive.
12. The plaintiff asserts that the credit card No.4477 4680 5465 0002 was swallowed by ATM machine in the month of March, 2004. There is nothing on record to indicate that the
--15-- O.S.No.2786/2008 said credit card was swallowed by ATM machine. It was the duty cast upon the plaintiff to intimate the first defendant about the swallowing of credit card. Admittedly, no intimation was given to the first defendant immediately after swallowing of the said credit card. There is no evidence on record to indicate that the plaintiff did not use the aforesaid credit card since March, 2004. Therefore, the first defendant cannot made liable for the same. Thus the contention of the plaintiff that there was no withdrawals made through the credit card No.4477 4680 5465 0002 cannot be accepted.
13. DW1 has re-iterated the defense taken by the first defendant in his written statement. DW1 speaks about the documents Ex.D1 to Ex.D5. It is significant to note that the plaintiff has not challenged the evidence of DW1. Therefore no reason to disbelieve the evidence of DW1 and the contents of Ex.D1 to Ex.D5. Ex.D1 to Ex.D3 are the credit card applications given by the plaintiff for issue of credit cards by the first defendant. It is pertinent to note that the plaintiff did not dispute the obtaining of credit cards from the first defendant. Therefore appreciating the contents of Ex.D1 to Ex.D3 would be of no consequence. Ex.D4 is the statement of
--16-- O.S.No.2786/2008 accounts of credit cards issued by the plaintiff. Ex.D4 discloses the statement of plaintiffs account from 25.1.2007 to 26.12.2014. Ex.D4 indicates that the plaintiff became overdue a sum of Rs.95,508/- towards installment and a sum of Rs.1,42,286 /-towards other over dues. There is nothing to discard the entries made in Ex.D4. Therefore from Ex.D4 it could be inferred that the plaintiff due a sum of Rs.2,39,450/- which includes all dues to the first defendant bank. The entries made in Ex.D4 establish the fact that the plaintiff withdrawn the amount through three credit cards issued by the first defendant with the terms and conditions laid down by the first defendant.
14. Looking to the admission made by PW1 the plaintiff availed credit card facility from the first defendant bank and holding three credit cards of first defendants bank. It is seen from the cross-examination of PW1 the plaintiff has not paid any amount since October, 2007. It is clear that the plaintiff became defaulter and committed breach of contract as per MIT form. As per the admission made by PW1 during cross-examination the terms and conditions stipulated in the agreement binds the plaintiff. In the event of default the first
--17-- O.S.No.2786/2008 defendant bank gets right to exercise its lien and set-off clause in terms and conditions governing credit card facilities. The card agreement stipulates that the plaintiff is obliged to be regular and prompt in discharge of his liabilities towards his card account. There is a clear violation of terms and conditions of the card agreement by the plaintiff. Absolutely there is no fault on the part of the first defendant in exercise of the statutory authority stipulated under section 171 of Indian Contract Act in initiating the Bankers power to "Right to Lien and Set-Off" and captioned the SB account of the plaintiff and set-off the amount in SB Account No.004701528131 against the card dues. Therefore, it is clear that the plaintiff has failed to prove that the first defendant has been illegally exercised right of set-off and general lien over Savings Bank Account No.004701528131.
15. The plaintiff sought for issue of direction to the second defendant to remit his salary to SB Account No.62004778906 and not to remit the same to the SB Account No.004701528131. It has come up in the evidence of PW1 and Ex.P9 that the plaintiff left the job with second defendant and joined Infosys on 14.09.2009. Looking to the termination of
--18-- O.S.No.2786/2008 job of plaintiff with second defendant the relief claimed against the second defendant become infructuous. The plaintiff became defaulter of repayment of amount drawn through the credit card. Therefore, the plaintiff does not deserve for issue of directions to the second defendant.
16. The first defendant contended that the suit filed by the plaintiff for compensation and damages is barred by time. The plaintiff filed the suit in the year 2008 in respect of the dues as on 31.3.2008. The plaintiff filed this suit on 15.4.2008. The suit is filed within one year from the date of overdue. Thus, the contention of the first defendant that the suit is barred by time is not sustainable.
17. Therefore in view of foregoing reasons and under the circumstances it is held that the plaintiff is not entitled for a decree of perpetual injunction against the defendants 1 and
2. The plaintiff is also not entitled for a decree of mandatory injunction directing the second defendant to credit his salary to SB. A/c No.62004778906 of State Bank of Hyderabad, Indiranagar Branch and also not entitled for a direction to the defendants jointly and severally to pay compensation /
--19-- O.S.No.2786/2008 damages and costs. Hence I answered Issue No.1, 2 and Addl. Issue No.1 accordingly and proceed to pass the following;
ORDER The suit filed by the plaintiff against the defendants 1 and 2 to pass judgment and decree for perpetual injunction st restraining the 1 defendant from exercising general lien and right of setoff over his Saving Bank Account No.004701528131 without due process of law and for mandatory injunction directing the 2nd defendant to credit his salary to pay either by cash /cheque /deposit to his schedule nationalized bank Saving Bank Account No.62004778906 State Bank of Hyderabad, Indiranagar Branch, Bangalore and also to direct the defendants either jointly or severally to pay an amount of Rs.1,00,000/- as damages/compensation is hereby dismissed.
Under the circumstances no order as to costs.
Draw decree accordingly.
[Prepared by me on the Laptop, Print out by the judgment
--20-- O.S.No.2786/2008 writer, corrected and then pronounced by me in the open court dated this day the 30th June, 2015].
[K. AMARANARAYANA] XVIII Addl. City Civil & Sessions Judge Bengaluru.
A N N E X U R E S:
No. of witnesses examined on behalf of the plaintiff:
PW1 : Anoop Vayath Narikutty.
No. of documents marked on behalf of the plaintiff:
Ex.P1 : SB account statement of first defendant bank.
Ex.P2 : Mini statement of account of first defendant bank.
Ex.P3 : Surrender letter of credit cards issued by first defendant bank.
Ex.P4 : Postal acknowledgment.
Ex.P5 : Photocopy of surrendered credit cards.
Ex.P6 : Salary slip issued by second defendant.
Ex.P7 : Copy of cheque issued by second defendant.
Ex.P8 ; Copy of DD issued by the second defendant.
Ex.P9 ; Appointment letter issued by Infosys.
Ex.P10 ; Covering letter issued by first defendant
bank for opening new salary account.
Ex.P11 ; Letter issued by First Source Solutions Co.,
for job offer as Senior Customer Service
Associate to the plaintiff.
--21-- O.S.No.2786/2008
Ex.P12 ; Certified copy of letter sent to first defendant
bank seeking list of documents pertaining to Plaintiff's bank account.
Ex.P13 ; Photocopy of postal receipt and acknow -
lodgment.
Ex.P14 ; Copy of police complaint.
Ex.P15 ; Daily newspaper midday dated; 9.02.2008.
Ex.P16 ; Daily newspaper Bangalore Mirror dated;
9.2.2008.
Ex.P17 ; e-mail sent by the plaintiff to second
defendant.
No. of witnesses examined on behalf of the defendant:
DW1 ; Vishal Kumar Shukla.
No. of documents marked on behalf of the defendant:
Ex.D1 ; Credit Card Application.
Ex.D2 ; Credit Card Application.
Ex.D3 ; Credit Card Application.
Ex.D4 ; Five true copy of statement of accounts.
Ex.D5 ; Certified copy of GPA.
XVIII Addl. City Civil & Sessions Judge,
Bengaluru.