Delhi District Court
Corporation Bank vs Ms. Bondili Geeta Bai on 12 January, 2016
IN THE COURT OF JITENDRA PRATAP SINGH, CIVIL JUDGE, TIS
HAZARI COURTS, DELHI
Suit No. 446/14
Case ID No. C____________
Corporation Bank
LIC Card Centre, Delhi.
A body corporate constituted
under the Banking Companies
(Acquisition and Transfer of
Undertakings) Act, 1980 having its
Head Office at Mangalore, Karnataka
and Having its branch at :
Corporation Bank, LIC Card Centre,
16/10, FF, Main Arya Samaj Road,
Karol Bagh, New Delhi110005. ......Plaintiff
Versus
Ms. Bondili Geeta Bai,
W/o Sh. Kishore Singh,
R/o 5524/1, Bank Colony,
Tuni, East Godavari Distt.,
Andhra Pradesh - 533401. ......Defendant
Suit No. 446/14 Page No. 1 of 17
SUIT FOR RECOVERY OF RS. 1,16,234.76 ALONG WITH
PENDENTELITE AND FUTURE INTEREST @ 2.25% PER MONTH
Date of Institution : 02.07.2013
Date of reserving Judgment : 12.01.2016
Date of pronouncement : 12.01.2016
JUDGMENT
This Judgment shall dispose the suit of the plaintiff filed against the defendant praying for a decree of recovery of Rs. 1,16,234.76 along with pendente lite and future interest @ 2.25% per month.
2. Brief facts necessary for deciding the present suit are as follows: The plaintiff is a body corporate constituted and functioning under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head Office at Mangalore, Karnataka and having its branch at Corporation Bank, LIC Card Centre, 16/10, FF, Main Arya Samaj Road, Karol Bagh, New Delhi110005. The present suit has been filed by Sh. A.V. Ambastha, Chief Manager and Suit No. 446/14 Page No. 2 of 17 Constituted Attorney of the Plaintiff bank duly authorized in this regard.
3. It is the case of the plaintiff that the LIC Card is issued by LIC Cards Services Ltd. in association with the Corporation Bank. The LIC Card account is maintained by the Corporation Bank and the LIC Card is distributed and marketed by LIC Cards Services Ltd. The defendant approached the plaintiff and applied for grant of LIC Credit Card facility for which she submitted dully filled and signed application along with copies of his various identity cards. In pursuance of the same, the plaintiff bank had sanctioned and issued an LIC credit card bearing No. 4628460010710002 with a limit of Rs. 20,000/ on 11.6.2010. Subsequently, plaintiff opened an LIC Credit Card account No. 4628460010710002 in the name of the defendant. The defendant utilized the said credit card for making purchases and withdrawing cash from ATMs but he failed to make the payment against the bills raised.
4. It is stated that the defendant had been regularly billed by way of monthly statements issued by the plaintiff with respect to the said credit card. The plaintiff has repeatedly called upon the defendant to clear and liquidate the dues in respect to the said credit card but the Suit No. 446/14 Page No. 3 of 17 defendant became highly irregular in clearing the dues. The defendant failed to maintain financial discipline and to deposit regular minimum amount in the card account. Thereafter, the defendant's account was classified as a Non Performing Asset on 2.11.2010. A legal notice dated 20.2.2013 was issued to the defendant demanding the outstanding amount of Rs. 94,922.98 which was due and payable as on 20.2.2013. It is stated that as per the terms and conditions of the card user agreement, the defendant is liable to pay interest on the overdue amounts @ 2.25% per month along with financial charges, late payment etc. It is stated that as on 21.5.2013, an amount of Rs. 1,16,234.76 was due in accounts of the plaintiff from the defendant. However, when the payment was not made by the defendant even after receiving the notice, the instant suit was filed to recover the aforesaid amount of Rs. 1,16,234.76.
5. Originally the suit was filed under the provisions of Order 37 of the CPC. However, vide order dated 3.3.2014, the same was directed to be treated as an ordinary suit.
6. The defendant entered her appearance and had raised Suit No. 446/14 Page No. 4 of 17 following preliminary objections to the suit : i. The plaintiff bank has no locus standi since no privity of contract exists between the plaintiff bank and the defendant; and ii. The transaction of Rs. 19,500/ dated 21.7.2010 on the basis of which the suit has been filed for a claim of Rs. 1,16,234.76 was never conducted by the defendant and hence, the suit is baseless.
7. On merits, the defendant had denied that she had approached the plaintiff for issuance of LIC credit card or had submitted any document to it or that the plaintiff bank had issued the credit card in question on 11.6.2010. She denied that she had a credit card account with the plaintiff bank. It is stated that she had never visited Delhi or plaintiff's LIC card center at Karol Bagh in her lifetime. She again denied using said card for any commercial transaction. She refuted the averments that the plaintiff had called upon her to pay any due in respect of the credit card. Rest of the allegations made in the plaint including receiving of monthly statements or bills through courier, e mail, SMSs as well as receiving of any legal notice were denied. Suit No. 446/14 Page No. 5 of 17
8. The plaintiff did not file any rejoinder to the written statement and it's right to file the same was closed on 11.11.2014 on which date the following issues were framed by this court for considerations :
1. Whether there is a privity of contract between the plaintiff and the defendant whereby the plaintiff bank has locus standi to file the present suit? OPP.
2. Whether the suit is maintainable as per law and / or on the facts? OPP.
3. Whether the plaintiff is entitled to a decree of recovery of Rs. 1,16,234.76? OPP.
4. Whether the plaintiff is entitled to any interest on the aforesaid amount? If so, at what rate of interest and for what period? OPP.
5. Relief.
The plaintiff was then called upon to lead its evidence to prove its case.
9. In its evidence the plaintiff bank examined Sh. Ashwin Tirkey, Authorized Representative of the plaintiff bank as PW1 who in Suit No. 446/14 Page No. 6 of 17 his evidence by way of affidavit reiterated most of the averments as made in the plaint. The said PW1 relied upon and produced on record the following documents :
1. Power of attorney of the previous AR as Mark A.
2. Original Credit Card application form and supporting documents as Ex. PW1/3 (Colly.).
3. Most important terms and conditions (MITC) as Ex.
PW1/4.
4. Screen shot providing the details regarding the defendant and that of credit card as allotted to the defendant as Ex. PW1/5.
5. Copy of legal notice with registered post receipt as Ex. PW1/6 (Colly.).
6. Copy of while label / cobranded credit card features as Ex. PW1/8 (OSR).
7. Plaint along with the supporting documents as Ex. PW1/10.
8. Photocopy of Power of Attorney in favour of the PW1 as Ex. PW1/1 (OSR).
9. Photocopy of agreement between the Corporation Suit No. 446/14 Page No. 7 of 17 Bank and the LIC Cards Ltd. as Ex. PW1/2A (OSR).
10. Photocopy of the agreement between the Corporation Bank and M/s. Opus Software Solutions as Ex. PW1/9 (OSR).
11. Statement of account and the certificate under Section 65B of Indian Evidence Act as Ex. PW1/7.
10. In defence evidence, Sh. B. Kishore Singh, Attorney and husband of the defendant was examined as the witness DW1. In his evidence by way of affidavit, the said DW1 stated that neither the defendant nor he had made any transaction dated 21.7.2010 for a sum of Rs. 19,500/ as alleged by the plaintiff. He stated that for this reason, the defendant is not liable to pay any amount including penalty or interest to the plaintiff. He reiterated that the defendant had never came to Delhi approaching the plaintiff for issuance of any credit card. It is stated that the defendant could not appear before this court as she has been suffering from Bronchial Ashtma and Frequent Angina Pain and has been advised to refrain from traveling etc. as per the medical certificate Ex. DW1/4. In addition to this medical certificate, the DW1 has relied upon the deed of power of attorney dated 9.5.2015, written Suit No. 446/14 Page No. 8 of 17 statement of the defendant and photocopy of the Adhar Card of the DW1 as Ex. DW1/1, Ex. DW1/2 and Ex. DW1/3 respectively.
11. Both the witnesses have been cross examined by the respective counsels of the opponent.
12. I have heard the Ld. Counsels for the parties and have perused the case file. My issuewise findings are as follows :
13. ISSUE NO. 1.
Whether there is a privity of contract between the plaintiff and the defendant whereby the plaintiff bank has locus standi to file the present suit? OPP.
The onus to prove this issue was placed upon the plaintiff. The plaintiff bank has contended that the LIC card was issued by the LIC Cards Services Ltd. in association with the Corporation Bank and that the LIC card account is maintainable by Corporation Bank and that the LIC card is distributed and marketed by LIC Cards Services Ltd. It is stated in the plaint that the defendant had approached the plaintiff bank for issuing an LIC credit card and Suit No. 446/14 Page No. 9 of 17 submitted a duly filled and signed application form along with copies of her identity and residential proofs. It is next contended that accepting the request of the defendant, the plaintiff bank issued the credit card in question whereafter the plaintiff opened and maintained an account in the name of the defendant in its ordinary and regular course of business. Defendant denies ever approaching the plaintiff bank for applying for the credit card in question. She stated that she had never visited Delhi or the plaintiff's LIC card center located at Karol Bagh in her lifetime.
14. To prove the contention, the plaintiff has placed reliance on the original application form for credit card, Ex. PW1/3 which, as per the plaintiff, was filled by the defendant and submitted to the plaintiff bank. A perusal of this application form reveals that it does not contain anywhere the name of the plaintiff bank in its original print. In fact, the title of the form reads, "LIC Credit Card Services Ltd.". Thus, while applying for the credit card, the defendant cannot be stated to be making such application to the plaintiff bank as the said bank is not the addressee mentioned in the said application form. Suit No. 446/14 Page No. 10 of 17
15. The plaintiff has contended that the application form bears its stamp and signatures of its official at point A and as such there is a privity of contract between the parties. This court finds this arguments unacceptable for the reason that the reading of the contents of this stamp reveal that it was affixed subsequently to the defendant making the application and furthermore, nothing has been placed on record to prove that this endorsement was ever read over to and accepted by the defendant. The plaintiff has also failed to explain as to where the defendant had approached the plaintiff for applying the LIC credit card as alleged. In absence of any material filed on behalf of the plaintiff, this court cannot accept the contention that the defendant had approached the plaintiff in Delhi at the address mentioned in the memo of parties in the plaint.
16. The plaintiff has contended that the defendant had read the Most Important Terms and Conditions, Ex. PW1/4 as has been declared by her in the application form, Ex. PW1/3. On the other hand, the defendant has argued that these terms and conditions were never informed to her by the plaintiff or by the LIC cards at the time of applying for the said credit card. The plaintiff has not placed on record Suit No. 446/14 Page No. 11 of 17 any material to show that these terms and conditions were brought to the knowledge of the defendant when she had applied for the credit card as alleged in the plaint. The copy of the terms and conditions, Ex. PW1/4 placed on record does not bear any signatures of the defendant or her agent etc. from which it can be inferred that she had been informed about these terms or that they form part of any contract between the parties to the suit.
17. The plaintiff has further argued that it had entered into the agreement dated 30.3.2009, Ex. PW1/2 with M/s. LIC Credit Card Services Ltd. whereby it has been authorized to collect payment from the plaintiff. In his crossexamination dated 8.12.2015, the PW1 has admitted that this agreement was not signed by the defendant. There has been placed no material on record by the plaintiff to show that the defendant was made aware of this agreement between it and M/s. LIC Credit Card Services Ltd.
18. Considering all of the above, this court is of a conclusion that no material has been produced on record by the plaintiff to show that the defendant had ever entered into an agreement with it for the Suit No. 446/14 Page No. 12 of 17 purpose of getting a credit card. Thus, the plaintiff has failed to prove that the defendant had approached it for issuing the credit card in question or that accepting the request of the defendant, the plaintiff had issued the said card.
Issue stands decided against the plaintiff.
19. ISSUE NO. 2.
Whether the suit is maintainable as per law and / or on the facts? OPP.
The onus of proof of the present issue has been placed upon the plaintiff.
In view of the findings of issue No. 1 hereinabove, since there exists no privity of contract between the parties, the suit against the defendant is not maintainable. Issue stands decided against the plaintiff.
20. ISSUE NO. 3.
Whether the plaintiff is entitled to a decree of recovery of Rs. 1,16,234.76? OPP.
Suit No. 446/14 Page No. 13 of 17
The onus of proof of the present issue has been placed upon the plaintiff.
The counsel for the plaintiff has argued that the plaintiff has used the credit card for making a transaction of Rs. 19,500/ on 30.6.2010 as is recorded in Ex. PW1/7. The defendant denied making such transaction using the card in question. It is pertinent to note that the plaint is silent about the defendant using the card for Rs. 19,500/ on 30.6.2010 and it is in paragraph number 18 of the plaint that it is recorded for the first time that the defendant had used the credit card on 30.6.2010 and it is on the basis of aforesaid recording in the statement of account, Ex. PW1/7 that the plaintiff has claimed the sum of Rs. 1,16,234.76 by way of the present suit.
21. In view of this court, the claim of the plaintiff is not maintainable as no material has been placed on record by the plaintiff in support of the contention that the card in question was used for making purchase to the tune of Rs. 19,500/ on 30.6.2010 as recorded in computerized statement of account, Ex. PW1/7 (Colly.). There had been placed no material on record to show that at any time prior to issuing the legal notice dated 20.2.2013, Ex. PW1/6, the said statement of Suit No. 446/14 Page No. 14 of 17 account, Ex. PW1/7 (Colly.) was communicated to the defendant by the plaintiff bank.
22. No evidence or documentary proof has been produced before this court to show that M/s. Next Retail India Ltd. had sold any goods or provided any services to the defendant on 30.6.2010 using the card in question. The Ld. Counsel for the plaintiff has argued that in his crossexamination dated 26.5.2015, the DW1 had denied the suggestion that the card was never used by the defendant which implied that it was used by her. This court finds itself unable to agree with the counsel for the reason that immediately prior to this reply, the DW1 has stated that the defendant has not made any payment as the card was never used by her. It has also not been explained as to what made the plaintiff to suggest to the witness that the card was never used by the defendant and if such suggestion was made, it was clear that the counsel for the plaintiff had accepted defendant's contention that she had never used the card. This reply which the plaintiff seeks to take benefit of, appears to this court to be suffering from a typographical mistake and hence, it is not of any help to the plaintiff. The PW1 in his crossexamination had admitted that defendant aas never informed in Suit No. 446/14 Page No. 15 of 17 writing about the use of credit card on 30.6.2010 and that the plaintiff has not filed any bill, invoice etc. of the merchant M/s. Next Retail India Ltd. with which the credit card was used.
23. In view of the aforesaid discussion, this court is of a conclusion that the plaintiff has failed to prove any transaction made by the defendant using card in question and as such the defendant is neither liable to pay the principal sum of Rs. 19,500/ or the sum claimed in the present suit. Issue stands decided against the plaintiff.
24. ISSUE NO. 4.
Whether the plaintiff is entitled to any interest on the aforesaid amount? If so, at what rate of interest and for what period? OPP.
The onus of proof of the present issue has been placed upon the plaintiff.
Since the plaintiff has failed to prove its entitlement to recover any principal amount from the defendant, it is not entitled to the recovery of any interest from the defendant. Issue stands decided against the plaintiff.
Suit No. 446/14 Page No. 16 of 17
25. RELIEF.
As a sequel to the aforesaid discussion and the decision of the issues, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Jitendra Pratap Singh) on 12.01.2016. Civil Judge, Central 09 Tis Hazari Courts, Delhi 12.01.2016 This Judgment consists of 17 pages and all the pages are duly signed by me.
Suit No. 446/14 Page No. 17 of 17 CS No. 446/14 12.01.2016 Present : None.
Be awaited for the parties. Put up at 12.00 pm. (Jitendra Pratap Singh) CJ/C/DELHI/12.01.2016 12.00 pm. Present : Sh. Upender Gupta, counsel for the defendant.
None for plaintiff.
Final arguments heard for the defendant. Be listed for Judgment in the post lunch session today.
(Jitendra Pratap Singh) CJ/C/DELHI/12.01.2016 12.20 pm. At this stage, Sh. Keshav Kumar, counsel for the plaintiff has appeared and sought permission to advance arguments in the matter.
At request, the arguments in the case as advanced by the plaintiff have been heard. Be listed for Judgment in the post lunch session.
(Jitendra Pratap Singh)
CJ/C/DELHI/12.01.2016
Suit No. 446/14 Page No. 18 of 17
3.30 pm.
Present : None.
Vide separate Judgment of even date the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet is directed to be prepared accordingly. File be consigned to the record room after necessary compliance.
(Jitendra Pratap Singh) CJ/C/DELHI/12.01.2016 Suit No. 446/14 Page No. 19 of 17