Delhi District Court
Markeat vs Sh. Rayapati Rajendra Prasad on 27 April, 2016
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IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.294/14
Unique Case ID No 02401C0167002014
Corporation Bank
LIC Card Centre, New Delhi, A body corporate constituted under the Banking
Companies (Acquisition and Transfer of Undertakings) Act 1980 (Act 3 of 1980)
having its Head Office at Mangalore, South Kanara, Karnataka State) and having
a branch at Corporation Bank, LIC Card Centre, 13 & 14, First Floor, Old
Markeat, Tilak Nagar, New Delhi 110018.
........................PLAINTIFF
VERSUS
Sh. Rayapati Rajendra Prasad
S/o Sh. Sundaraiah Rayapati
R/o 140, Nelaballi, Doravari Satram,
Naidupet, Nellore - 523126 (AP)
Office At :
NBKR, Institute of Science & Technology Vidyanagar, Nellore -
524413 (AP)
....................DEFENDANT
Suit filed on - 09/04/2014
Judgment Reserved on - 27/04/2016
Date of decision - 27/04/2016
Suit No.294/14 Page1/6
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SUIT FOR RECOVERY OF RS.1,20,107.24Paise (Rupees One Lakh Twenty
Thousand One Hundred Seven And Paise Twenty Four Only)
ALONGWITH PENDENTELITE AND FUTURE INTEREST @ 2.50%
PER MONTH
EXPARTE JUDGMENT:
By this exparte judgment I shall dispose off a suit for recovery of
Rs.1,20,107.24Paise filed by the plaintiff against the defendant. It is pertinent to
mention here that initially the suit was filed U/O 37 CPC, but the same was
converted into an ordinary suit vide order dt.21/04/14 and thereafter summons for
settlement of issues were issued against the defendant.
1.The facts in brief relevant for the judgment as per plaint are that the plaintiff is a corporate body constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. That Mrs. Anuja Mehta, Manager/Constituted Attorney/Principal Officer of the plaintiff bank is duly authorized and empowered to institute and sign the present suit, verify and affirm all the pleadings, affidavits and vakalatnama, etc. on behalf of plaintiff bank.
It is further the case of the the plaintiff that they issue LIC Card in association with the LIC Cards Services Limited and keep record of the same and maintain the same and the LIC Card is marketed by the LIC Cards Services Limited.
It is further the case of the plaintiff that the defendant approached them for issuing a LIC Credit Card and submitted a duly filled and signed Suit No.294/14 Page2/6 3 application on 18/08/10 alongwith relevant documents. It is further averred that considering the application of the defendant, a LIC Credit Card No. 4628460015090004 was issued to the defendant of which plaintiff is keeping and maintaining the record in regular course of business.
It is further the case of the plaintiff that the defendant accepted the terms and conditions and used the said LIC Credit Card for purchasing goods/things/services from different stores/shops/services and also withdrew cash from ATM by using the said Card. It is further averred by the plaintiff that in lieu of use of the said Card the defendant was issued with monthly statements/bills on regular basis to which defendant did not raise any dispute and was liable to pay the entire amount demanded by the plaintiff through the said statements/bills.
It is further the case of the plaintiff that it repeatedly called upon the defendant to clear and liquidate the dues with respect to the said LIC Credit Card but the defendant failed to maintain the financial discipline and to deposit regular minimum amount in the Card account. That the plaintiff issued a recall notice dt. 11/12/13 thereby calling upon the defendant to pay the outstanding amount of Rs. 1,14,404.36Paise but despite the receipt of the notice the defendant failed to pay any heed to the same and also failed the clear the dues.
It is further the case of the plaintiff that as on 21/12/13 a sum of Rs. 1,20,107.24Paise was found due and payable by the defendant to the plaintiff alongwith interest @ 2.50% per month. Hence, the present suit has been filed by the plaintiff for recovery of Rs.1,20,107.24Paise alongwith interest.
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2. The defendant was duly served with summons for settlement of issues and was given opportunity to file the WS, but as none appeared on behalf of defendant despite the service, he was proceed with exparte vide order dt. 19/01/15.
3. Exparte evidence has been led, arguments have been heard & record has been carefully perused.
4. In exparte evidence in order to prove its case the plaintiff got examined Sh. Ashwin Tirkey, Manager of the plaintiff bank as PW1 who reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under : Ext. PW1/1 is the application of the defendant for LIC Credit Card. Mark A to E are the photocopies of PAN Card, Passport, Employee ID, Salary Slip, Form16 filed alongwith the application. The Credit Card statements/bills issued by the plaintiff from 21/03/11 to 21/12/13 are exhibited as Ext. PW1/2 to PW1/35. The copy of legal demand notice dt.11/12/13 is Ext. PW1/36 and its speed receipt is Ext. PW1/37. The computer generated card holder's details/screen shot is Ext. PW1/38. The certificate under Banker's Books of Evidence Act is Ext. PW1/39. Ext. PW1/40 is the copy of terms and conditions (MITC). The agreement dt.30/03/09 between the plaintiff and LICCSL is Ext. PW1/41. The agreement between the plaintiff and Opus Software Solutions Pvt. Ltd. are Ext. PW1/42. The copy of power of attorney in favour of Ms. Anuja Mehta is Ext. PW1/43. The copy of power of attorney in favour of Sh. Ashwin Tirkey is Ext. PW1/44.
Suit No.294/14 Page4/6
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5. The testimony of PW1 remains unchallenged and unrebutted and I find no reason to disbelieve the same. The documents have been duly proved as per law. The plaintiff has proved the service of legal notice and as the same was not replied, an adverse inference may safely be drawn against the defendant. There is no reason to doubt the genuineness of credit card statements which are Ext. PW1/2 to PW1/35. I also find it necessary to elucidate one other vital aspect over here. Even though it appears from the material on record that there was no specific contract between the defendant and the plaintiff bank but one thing which clearly can be culled out from the evidence on record that the defendant did utilize the credit card services which were eventually financed by the plaintiff bank and Section70 of Indian Contract Act clearly puts a restriction on unjust enrichment. Section70 of Indian Contract Act reads as under : "Section - 70. Obligation of person enjoying benefits of non gratuitous act - Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."
What Section70 prevents is unjust enrichment and the section is not founded on any contract but embodies the equitable principle of restitution and unjust enrichment (AIR 1986 SC 1218) and this section enables the courts to do substantial justice in cases where it would be difficult to impute to the persons concerned relations created by the contract (AIR 1962 SC 779). Applying this analogy to the facts of present suit it can safely be said that the plaintiff bank was not intending to finance the Credit Card Services gratuitously and the defendant Suit No.294/14 Page5/6 6 was bound to make the payment for the Credit Card Services. The suit is filed within the period of limitation and has been proved on the scale of preponderance of probabilities.
6. The plaintiff has also prayed for pendentelite and future interest @ 2.50% per month from the date of filing of the suit till the realisation of decreed amount. But there is no such contract placed on record and, moreover, in my considered opinion, the rate of interest claimed by the plaintiff is found to be excessive and the plaintiff is entitled to receive a pendentelite and future interest @ 6% per annum from the date of the filing of the suit till the date of realisation of the decreed amount. Accordingly, the suit is decreed in favour of plaintiff and against the defendant and following reliefs are granted to the plaintiff:
1. A money decree for a sum of Rs.1,20,107.24Paise (Rupees One Lakh Twenty Thousand One Hundred Seven And Paise Twenty Four Only) as principal amount alongwith with pendentalite and future interest @ 6% per annum from the date of filing of the suit till the date of realization of the amount.
2. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
(SANDEEP GUPTA) Civil Judge, Delhi (West)02 Announced in the open court on 27/04/2016.
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