Delhi District Court
Canara Bank vs Mst. Heena on 5 February, 2013
IN THE COURT OF MS. RAVINDER BEDI, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS: DELHI.
CIVIL SUIT NO. 101 OF 2011
(UNIQUE CASE I.D. NO.02402C0200842011)
CANARA BANK
(A Body corporate, Incorporated under
Banking Companies (Acquisition and
Transfer of Undertakings) Act 1970
having its Head Office at 112, J.C. Road,
Bangalore and amongst others a branch
at Gyan Deep Vidya Bhawan, CBlock,
Yamuna Vihar, Delhi110 053. ........... PLAINTIFF
Versus
MST. HEENA
Proprietor M/s. Heena Embroidery
B321, Gali No.5, Kabir Nagar,
Shahdara, Delhi110032. ........... DEFENDANT
Date of institution : 12.07.2011
Order reserved on : 14.01.2013
Date of Decision : 05.02.2013
SUIT FOR RECOVERY
EX PARTE JUDGMENT :
1.Plaintiff bank has filed the present suit for recovery of Rs.
Suit No.101/11 Page : 1/7 41,954/ against the defendant alongwith interest & costs.
2. The facts of the case, in nutshell, are that plaintiff bank is a body corporate constituted under Banking Companies Act 1970 and Sh. Anand Singh kutiyal is the Manager and constituted attorney of the bank to institute the proceedings.
3. It is stated that defendant as the proprietor of M/s. Heena Embroidery, a proprietorship firm, was maintaining a current account no.CA2947201000395 with plaintiff bank since 10.05.2007; that defendant was provided various customer services and facilities such as cheque books, Temporary Overdraft Facility (hereinafter as TOD) etc.; that in the month of June 2008, defendant had issued two cheques bearing no. 843585 and 843586 for the sums of Rs.15,000/ each in her current account with the plaintiff bank for temporary overdraft (TOD) against said cheques by allowing the cash withdrawal; that the said cheques were got cleared by the plaintiff bank on 3.6.2008 and 4.6.2008 thereby granting a TOD of Rs.19,189/ in her current account; that defendant again approached the plaintiff bank to grant another TOD for a sum of Rs.4,000/ against another cheque no.843587 issued by her which was also Suit No.101/11 Page : 2/7 passed by plaintiff bank on 11.6.2008, reflecting thus a total outstanding amount of Rs.23,189/.
4. It is stated that on 13.6.2008 and 10.7.2008, defendant had deposited two cheques bearing no33621 and 33691 for a sum of Rs.20,000/ and for Rs.35,234/ respectively, thereby bringing down her overdues in her current account; that meanwhile, on 16.6.2008, defendant had also withdrawn another sum of Rs.20,000/ by issuing cheque no.843588 dated 14.6.2008 and availed another TOD of Rs.20,000/ in the name of one Sanjay; that on 10.7.2007, defendant had deposited cheque no.033691 for a sum of Rs.35,234/ and on 11.7.2008, there was a credit of Rs.11,548/ in the aforesaid current account; that on 14.7.2008, defendant had again approached plaintiff bank for grant another TOD facility of Rs.35,000/ against another cheque no.843599 dated 13.7.2008 in the name of Sanjay, issued by her. As such, it had resulted an overdue of Rs.23,452/ in her current account; that defendant has failed to clear the aforesaid overdue in her current account within 15 days despite repeated requests and visits of bank officials; that since defendant did not clear the outstanding dues of Rs.
Suit No.101/11 Page : 3/7 23,452/ alongwith interest, an interest was being levied on the said overdue amount as per bank procedures and her overdue account was transferred to loan past due (LPD) account on 11.2.2010; that plaintiff bank got issued legal notice dated 5.7.2011 but still defendant has not repaid the outstanding amount. Finding no other alternative, the present suit was filed by the plaintiff.
5. The summons of the suit were served upon the defendant. Defendant has contested the suit by filing the Written Statement raising certain preliminary objections. It is contended that plaintiff has not come to the court with clean hands and is guilty of concealment of true and correct facts; that no cause of action arose in favour of plaintiff. It is contended that para 1 to 2 of plaint were denied for want of knowledge. It is contended that para 3 to 10 of plaint were matter of record and plaintiff bank was directed to prove the same. Similarly, rest of the paras of plaint were contended as denied and wrong. All other allegations made in plaint are denied and a prayer has been made for dismissal of the suit.
6. Plaintiff filed replication denying the contents of the Written Suit No.101/11 Page : 4/7 Statement in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
7. Thereafter, none appeared for defendant and vide order dated 16.10.2012, defendant was proceeded ex parte. However, defendant continued to appear through her advocate till final proceedings.
8. Plaintiff was directed to lead evidence in support of its case. Plaintiff has examined its Manager Sh. Anand Singh Kutiyal as PW1 who tendered his examination in chief by way of affidavit Ex.PW1/A wherein he reiterated the facts stated in the plaint. PW1 also proved on record the documents i.e. copy of power of attorney dated 28.8.2004 as Ex.PW1/1, statement of account as Ex.PW1/2 (colly.), legal notice dated 5.7.2011 alongwith its postal receipt as Ex.PW1/3 (colly.) and certified statement of account alongwith certificate under Bankers Books Evidence Act as Ex.PW1/4 (colly.). Plaintiff bank also examined its Manager Sh. Ramesh Prasad as PW2 who tendered his examination in chief by way of affidavit Ex.PW2/A. PW2 also proved on record the documents i.e. account opening form as Ex.PW2/1 (colly.), cheque no.843588 Suit No.101/11 Page : 5/7 dated 14.6.2008 for Rs.20,000/ as Ex.PW2/2, cheque no. 843599 dated 13.7.2008 for Rs.35,000/ as Ex.PW2/3.
9. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for defendant and have perused the record in the light of statutory provisions of law.
10.The testimony of PW1 and PW2 have remained unrebutted and unchallenged and there is no reason to disbelieve the same. The plaintiff bank has proved that the defendant had availed the overdraft facility of Rs.35,000/ against cheque no.843599 on 14.7.2008, issued by her in her current account. This is duly reflected in her statement of account Ex.PW1/2. Despite having received legal notice Ex.PW1/3, she did not clear the dues and as per final statement of account alongwith certificate Ex.PW1/4, a sum of Rs.41,954/ inclusive of interest upto filing of the suit is outstanding against her. The document i.e. account opening form and cheque are proved by another witness PW2 Ramesh Prasad. In view of the testimony of plaintiff's witnesses as well as the documents proved by them, plaintiff bank has established its case against the defendant.
11.Thus, in view of the aforesaid discussion, the suit is decreed in Suit No.101/11 Page : 6/7 favour of the plaintiff and against the defendant in the sum of Rs.41,954/. Plaintiff shall also be entitled to simple interest on the aforesaid amount @ 9% per annum from the date of filing of the suit till its realization. The plaintiff shall also be entitled to the costs of the suit. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 5th February, 2013 (MS. RAVINDER BEDI) Senior Civil JudgeCumRent Controller (NE) Karkardooma Courts, Delhi.
Suit No.101/11 Page : 7/7
Suit No.101/11
05.02.2013 :
Present : None.
Vide separate judgment announced in open court today, the suit of plaintiff is decreed with interest and costs in the manner indicated therein.
File be consigned to record room.
SCJCUMRC (NE) KKD. COURTS/DELHI/05.02.2013.
Suit No.101/11 Page : 8/7