Delhi District Court
Shikha Sharma vs Hdfc Bank Ltd on 28 September, 2024
IN THE COURT OF SH. NISHAT BANGARH,
CIVIL JUDGE-02, SOUTH WEST, DWARKA COURT
NEW DELHI.
CS No. 853/2019
CNR No. DLSW03-001385-2019
IN RE:
SHIKHA SHARMA D/O SH. ASHOK KUMAR, R/O- J-58/59,
ARUNODAYA APARTMENTS, POCKET-2, SECTOR-7,
DWARKA, NEW DELHI.
.....Plaintiff.
Vs.
HDFC BANK LTD., OFFICE AT- DLF CYBER CITY
DEVELOPERS LTD., BUILDING NO. 10, UGF, TOWER-A,
GURUGRAM, HARYANA.
.....Defendant.
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
Date of Institution : 22.07.2019
Date of reserving judgment : 10.09.2024
Date of judgment : 28.09.2024
Final Judgment : Dismissal.
Suit No. 853/2019
Shikha Sharma Vs. HDFC Bank Ltd. Page no.1/26
JUDGMENT
1. The brief facts of the case necessary for deciding the matter are that since the joining of job plaintiff is getting her monthly salary in her salary account bearing number 09201140104321 maintained with defendant that is HDFC Bank, DLF cyber city developers, building No. 10, UGF, Tower A Gurgaon. On 29.05.2019 plaintiff received SMS on personal from HDFC Bank stating that "your contact number has been updated with your HDFC credit card bearing first 6 digits 462917 and last digits 1121. Thereafter the plaintiff started getting calls from the officials of defendant stating that there is an amount of more than ₹ 2 lakhs due on her credit card and asked her to pay the due amount at the earliest. Thereafter, on 30.05.2019, the plaintiff received several text messages that a credit card has been updated with the mobile number and account of plaintiff.
2. The plaintiff has alleged that she has never applied for the credit card, hence she complained regarding the issue telephonically and through emails to the defendant bank, she has also filed complaint in PS Palam Village regarding the issue. However, despite filing of complaints, without resolving the issue, the defendant bank kept on making phone calls and sending messages to plaintiff, as a reminder for payment of dues of credit card.
3. Thereafter, she received an email dated 09.07.2019 from the defendant bank stating that a lien of Rs. 2,19,139 is created Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.2/26 on savings account bearing No. 09201140104321 (Salary account of plaintiff) at the request of the plaintiff. It is alleged by the plaintiff that she has never requested for any such lien, in fact she has complained against issuance of credit card in her name without applying for the same. It is alleged the officials of HDFC Bank in connivance with each other issued a credit card in dispute by committing forgery of the signatures of the plaintiff. S
4. Further, on 10.07.2019 the plaintiff received an SMS from the HDFC Bank, which reflected that bank has illegally debited Rs. 88,181/- from plaintiff's saving account without her permission.
5. It is alleged that, plaintiff has never applied for any credit card in her life, she has never requested for any lien on her savings/salary account, her account was mishandled by the bank officials, the officials of HDFC bank have cheated the plaintiff by committing forgery of her signatures for issuing credit card in her name without her consent and the amount of Rs. 88,181/- is deducted from her account by HDFC Bank illegally without her consent.
6. The defendant has sought following prayers in the present suit:-
a. A permanent injunction in favour of plaintiff and against the defendant thereby restraining it from claiming dues of credit card 46391XXXXXX 5829 from the plaintiff. b. Of mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant to cancel the Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.3/26 debit entry dated 11.07.2019 thereby the saving account no. 09201140104321 was debited with outstanding of credit card.
c. Of money decree for amount of ₹ 50,000 in favour of plaintiff and against the defendant as compensation.
7. Thereafter, on filing of the present suit summons were issued to the defendant. Defendant appeared and contested the case by filing written statement.
8. Defendant has alleged in the written statement that the suit of the plaintiff is liable to dismissed for not having any cause of action against the defendant under Order VII Rule 11 (a) of CPC and for non-joinder or mis-joinder of parties. As the defendant bank has acted in ordinary course of banking. Defendant bank has issued the credit card on receiving online application filed by plaintiff using net banking facility, the messages regarding status of online application were sent on the registered mobile number of the defendant, the message regarding approval of online application was also sent on the registered mobile number of the plaintiff, the credit card was sent on the registered address of the plaintiff using services of Blue Dart and the credit card was received by the brother of the plaintiff namely Prashant Sharma, hence if any cause of action arises in favour of plaintiff then it arises only against Prashant Sharma or Blue Dart.
9. Further to establish that the Prashant Sharma who received the credit card is known to the plaintiff, the defendant stated that on 28.06.2018, the plaintiff issued a cheque bearing no.
Suit No. 853/2019Shikha Sharma Vs. HDFC Bank Ltd. Page no.4/26 480498 drawn on HDFC Bank Ltd. for an amount of Rs. 2,50,000/- in favour of Prashant Sharma and accordingly, the amount of the plaintiff was debited from her salary account bearing no. 09291140104321 and got credited into the Standard Chartered Bank account no. 53510823534 of Prashant Sharma.
10.It is alleged that the plaintiff has used the online credentials provided by defendant at the time of opening account, applied for credit card by filing online application bearing no. 1812260916963001 via IP Address: 150.242.175.212. The bank approved the application, the credit card bearing no. 4639 17XX XXXX 1121 was picked up by Blue Dar Express Ltd. on 29.01.2018 at 20:50 (via Waybill/Ref. no. 36080937970/1836360928401533) from the Defendant Bank to deliver the same to the Plaintiff and same was delivered on 31.12.2018 at 14:16 to Prashant Sharma (brother of the plaintiff).
11.It is alleged that it is the duty of the plaintiff to keep the credentials of her net-banking in her safe custody and further, not to share the same with anyone else. It is also alleged that not she has issued a cheque in favour of Prashant Sharma, but he was added as a beneficiary to HDFC Bank Net Banking, for online transfer of funds through NEFT/RTGS/IMPS by the plaintiff and she cannot be allowed to plead contrary in the plaint that she does not know Prashant Sharma.
12.On the basis of the pleadings on record, the following issues were framed:
Suit No. 853/2019Shikha Sharma Vs. HDFC Bank Ltd. Page no.5/26
1. Whether the present suit is barred by Order 7 Rule 11(a) CPC? OPD
2. Whether the present suit is bad in law for non-joinder of necessary party? OPD
3. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
4. Whether the plaintiff entitled to a decree of a mandatory injunction as prayed for? OPP
5. Whether the plaintiff is entitled to decree of money of amount of Rs. 50,000/- as prayed for? OPP
6. Relief.
13. In order to prove her case, the plaintiff examined herself as plaintiff witness, she tendered her evidence affidavit Ex. PW- 1/A bearing her signature at points A and B. She relied upon the following documents:-
Nature of documents Exhibited As
1. Printout of SMS dt. PW1/1
30.05.2019
2. Copy of complaint Mark A
dt.31.05.2019
3. Printout of email dt. PW1/3
31.05.2019.
4. Printout of email dt. PW1/4
07.06.2019.
5. Printout of email dt. PW1/5
25.06.2019
6. Printout of email dt. PW1/6
09.07.2019
7. Print out of SMS dt. PW1/7
10.07.2019
8. Copy of Complaint dt. PW1/8
12.07.2019
Suit No. 853/2019
Shikha Sharma Vs. HDFC Bank Ltd. Page no.6/26
9. Certificate of section 65B of PW1/9
Indian Evidence Act.
14.PW1 was cross examined. The important facts admitted or emerged from the cross examination of PW1 are:
a. She has admitted that she is the permanent resident of House No. 1313 Type B, Maruti Kunj, Gurgaon, Near KIIT College, Gurgaon, Haryan- 122001. b. She has admitted that Ex. PW1/D1 is her account opening form of her savings account opened at the time of her joining the job with Indigo Airlines. c. She has admitted that the mobile number and email ID mentioned in the form belongs to her.
d. She has admitted that she had received an envelope from HDFC Bank at the time of opening her salary account, which contained debit and its PIN.
e. She admitted her signatures on PW1/D2 (Instant Account Acknowledgement Bank Copy).
f. She has admitted that PW1/D2 reflects that customary IC number, account number, customer ID number, cheque leaves, international debit ATM card number, net banking PIN, phone banking PIN and debit card PIN have been ticked and received by her. Although she has also stated voluntarily that she does not remember that whether she has ticked or received all the documents/items. g. She has stated that her brothers name is Prashant Sharma.Suit No. 853/2019
Shikha Sharma Vs. HDFC Bank Ltd. Page no.7/26 h. She has admitted that the phone number and address mentioned on PW1/D4 (letter written by employer to the defendant bank.) belongs to her.
i. She has identified the cheque of Rs. 2,50,000/- issued by her in favour of her brother. (Ex PW1/D5). j. She has admitted that on her registered address only one person named Prashant Sharma is residing and he is her brother.
k. She has stated that she is not using the registered mobile number i.e. 9999553979, however, she was using the said mobile number on 25.12.2018.
l. She has stated that, she does not remember whether she had received any SMS from HDFC Bank in regard to the Credit Card issued by bank or with regard to the online application dated 26.12.2018 for credit card. m. She has stated that she does not remember that where the envelope i.e Welcome Kit containing customary IC number, account number, customer ID number, cheque leaves, international debit ATM card number, net banking PIN, phone banking PIN and debit card PIN have been kept by her, she cannot recollect the same as it has already been 11 years.
n. She has stated that she cannot say anything regarding that there is a possibility that her brother Prashant Sharma could have collected the credit card at her residence i.e. House no. 1313 Type B, Maruti Kunj, Gurgaon, Near KIIT College, Gurgaon Haryana- 122001 on her behalf.Suit No. 853/2019
Shikha Sharma Vs. HDFC Bank Ltd. Page no.8/26 o. She has also stated that she does not know whether the HDFC credit card has been received by her brother Prashant Sharma or not.
p. She has also admitted that there is a possibility that her Welcome Kit was being used by her family as the same could have been kept at her permanent address i.e House No. 1313 Type B, Maruti Kunj, Gurgaon, Near KIIT College, Gurgaon Haryana- 122001.
q. She has further stated that her registered mobile number is being used by her father, however, she do not remember the exact time since when her father is using the registered mobile number, it is stated that he might be using the said number from 2019.
r. She has stated that her relations with her brother got strained in the year 2010/2011, but relations got cordial for a short duration when she had given him the cheque Ex. PW1/D5.
s. Further, she has also stated that she does not reside with her family. She is residing on rent since 2010. However, she has also admitted that she has not apprised regarding her tenanted address to the bank.
t. Further, plaintiff has also stated that she does not know the mobile number of her brother Prashant Sharma. Further, she has admitted that she has never inquired from her brother Prashant Sharma that whether he applied or received any credit card from HDFC Bank on her behalf.Suit No. 853/2019
Shikha Sharma Vs. HDFC Bank Ltd. Page no.9/26 u. She has voluntarily stated in her cross examination that she is not aware who applied or received the said credit card. She has admitted that she has received notices/calls from HDFC Bank as to the alleged liability of her credit card. She has also admitted that she was not using her registered email ID and she is having no reason as to why she has not updated her current email ID in the bank.
15.Thereafter, in order to prove its case, the defendant examined his AR as DW1, she tendered her evidence affidavit Ex. D1W1/1 bearing her signature at points A and B. She relied upon the following documents:
Nature of Documents Exhibited As 1 Photocopy of board resolution Mark A dated 16.04.2022 2 Salary account opening form of Already Ex. PW-1/D1 Ms. Shikha Sharma 3 Instant account Already Ex. PW-1/D2 acknowledgement bank copy 4 Copy of letter dated 24.10.2011 Already Ex. PW-1/D4 issued by Interglobe to HDFC Bank Ltd. 5 Copy of a cheque bearing Already Ex. PW-1/D5 number 480498 dated 28.06.2018 of Rs. 2,50,000/- drawn on HDFC Bank Ltd. in favour of Prashant Sharma. 6 Statement of debit card EMI Already Ex. PW-1/D6 loan Account bearing No. 00360825 XXXX1676 of plaintiff dated 20.06.2018 to 20.05.2019 7 Statement of debit card EMI Already Ex. PW-1/D7 loan Account bearing No. 00360825 XXXX1700 of plaintiff dated 20.06.2018 to 20.05.2019 Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.10/26 8 Statement of HDFC Bank Ltd. Ex. D1W1/B account bearing No. 09291140104321 of plaintiff from 01.06.2018 to 31.12.2019 9 Attested Copy of SMS Log Ex. D1W1/C (Colly) Report of Plaintiff's mobile no's 8929356027 & 9999553979 with internal e-mail dated 17.02.2020 of defendant 10 Attested Copy of HDFC Bank Ex. D1W1/D Online Application Form bearing No. 18122609169630O1 of plaintiff with respect to credit card of the plaintiff 11 Attested copy of internal e-mail Ex. D1W1/E dated 05.02.2020 of defendant providing the email dated 04.02.2020 sent by Bluedart express Ltd. to defendant providing electronic details of proof of delivery of credit card of plaintiff 11 Attested copy of internal e-mail Ex. D1W1/F (colly) dated 29.10.2019 of defendant providing the NEFT payment of Rs. 10,000/- made by Mr. Prashant Sharma towards the credit card of plaintiff. 12 Statement of account of HDFC Ex. D1W1/G Bank VISA Regalia First Credit Card bearing No. 4639 17XX XXXX 1121 of plaintiff issued by defendant 13 Statement of account of HDFC Ex. D1W1/H Bank VISA Regalia First Credit Card bearing No. 4639 17XX XXXX 5829 of plaintiff issued by defendant 14 Original copy of statement Ex. D1W1/I delivery through e-mails sent by Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.11/26 defendant to the plaintiff on the letter head of defendant 15 Certificate under Section 65B Ex. D1W1/J dated 01.09.2020 of IEA r/w Section 2A of Banker's Book of Evidence Act 16 Attested copies of all email Ex. D1W1/K (colly) communications between the plaintiff and defendant 17 Attested copy of Lien Notice Ex. D1W1/L dated 01.07.2019 18 Attested copy of internal e-mail Ex. D1W1/M dated 13.02.2020 of defendant w.r.t proof of delivery 19 Legal Notice dated 10.09.2019 Ex. D1W1/N(Colly) 20 Legal Notice dated 15.10.2019 Ex. D1W1/O 21 Copy of HDFC Bank Credit Ex. D1W1/P(colly) Card Member Agreement and most important terms and conditions
16.DW1 was cross examined by Ld. Counsel for plaintiff wherein she deposed that the credit card in question was applied through net banking and the online application form was filed on record alongwith IP address. Further, the witness was confronted with a document Ex. D1W1/D i.e. Online Application Form and she was asked how can she say that the IP address mentioned in the application form belongs to plaintiff to which she replied that since the plaintiff had applied for the credit card through net banking and the details were already mentioned qua the same in the card application form. She further deposed that the document Ex. D1W1/D had been generated by the bank. She denied the sugestion that the IP address did not belong to the plaintiff and the document was manipulated. The registered mobile no. of the Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.12/26 plaintiff with the bank was 9999553979 and she admitted that the mobile no. mentioned in Ex. D1W1/D was 8929356027 and the same was not the registered mobile no. of the plaintiff with the bank. She further admitted that after opening of Bank Account, the customer had to activate his/ her net banking either through mobile application or through Domain web site, by login through credentials provided by the bank. She further deposed that she could not say whether the net banking could be activated through branch of bank. She was further asked when and how the net banking of plaintiff was activated to which after going through the file she replied the she could not say. She denied the suggestion that the plaintiff never got activated her net banking. She admitted that every customer has unique net banking ID, in their bank. She was further asked what was the unique net banking ID of the plaintiff to which she replied that the same was confidential and the same was within the record of the plaintiff. Therefore, She was not aware of Unique ID of plaintiff. She was further asked could she tell the unique net banking ID of the plaintiff after going through her bank records to which she replied since that was confidential and within the knowledge of the plaintiff, she could not depose about the same. She denied the suggestion that since the plaintiff never activated the net banking therefore she could not tell the unique net banking ID of the plaintiff. She further deposed that she was aware of the process for the online application for credit card. After receiving online application the bank used to verify the same with the net banking. Thereafter, the bank used to dispatch the credit card to the registered address. The bank did not verify the credential physically with the customer. There was no requirement of signatures of the customer in case of Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.13/26 online application for credit card since the same was applied through net banking of the customer. She denied the suggestion that physical verification of customer and signature over application form was mandatory for applying for credit card. She further deposed that the date of delivery of the credit card was 31.12.2018. The bank has filed the proof of delivery for the credit card in question in judicial file. The bank did not have the signatures of recipient of the credit card in question. She voluntarily deposed that in the proof of delivery recipient name was mentioned which was Prashant Sharma. She has stated that as per the receipt of vendor/courier company, the credit card was delivered to Prashant Sharma. She has further stated that the plaintiff's salary account was marked as hold as per card member agreement & MITC (Most Important Terms & Conditions), which was duly agreed between the bank and the plaintiff, due to non- payment of outstanding dues of the cards, thereafter, the bank sent a lien notice to the plaintiff for the payment of dues but since no payment was made bank marked the lien on her salary account and thereafter, the salary account was debited with the outstanding amount of the credit card. She denied the suggestion that the bank did not have power to debit the salary account of plaintiff for outstanding of credit card. She further deposed that the copy of MITC and card member agreement for the present case has already been filed on record which was already Ex. D1W1/P (colly) running in 30 pages. Further, the witness was confronted with Ex. D1W1/P (colly) and she admitted that there were no signatures of the plaintiff thereupon. She voluntarily deposed that there was no need of signatures since the same was sent alongwith the welcome kit of the credit card at the time of dispatch to the Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.14/26 customer and same was easily available on the website of the bank. She denied the suggestion that the bank cannot force the terms and conditions of a document which had not been signed by the plaintiff. She further voluntarily deposed that nothing had been forced upon the plaintiff. She further deposed that she did not remember the date when the plaintiff made the complaint that she had not applied for the credit card. She voluntarily deposed that that was there in record. She further deposed that the bank had taken action on the complaint of the plaintiff, the bank blocked the card and the said card was hotlisted and the same was mentioned in her affidavit, thereafter new card was issued and the dues of the old card were transferred to the new card and this was done for the benefit of plaintiff only. She further admitted that no request for issuance of new card was made by the plaintiff and that whenever a customer applies for a credit card then messages qua that are being sent to the registered mobile number of the customer. In present case the SMS were sent on 8929356027. The credit card was approved on 26.12.2018. The approval SMS was also sent on 8929356027. She was asked whether the plaintiff ever filed any application for change of registered mobile number from 9999553979 to 8929356027 for her account to which she replied that she could show the documentary proof to the effect that the plaintiff got her RMN changed later on from 9999553979 to 8929356027. She further deposed that that was a matter of record and she needed time for scrutinizing the same as the record was voluminous. She further deposed that there was no separate documentary proof to the effect that plaintiff got her RMN changed from 9999553979 to 8929356027. She voluntarily deposed that at the time of on-line credit card application Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.15/26 form, the mobile no. was got changed and that was a matter of record. She further deposed that the credit card in question was activated/approved and used between 28.12.2018 to 27.05.2019 and that during this period, all SMSs of credit card in question were sent on mobile no. 8929356027 which was not the registered mobile no. of plaintiff at the time of opening of salary account with the defendant and that on 27.05.2019, the defendant bank itself re-updated the mobile no. of the plaintiff with the credit card as 9999553979. She voluntarily deposed that this number was mentioned in the salary account of the plaintiff and the other number i.e. 8929356027 was abated by the plaintiff herself at the time of applying of on-line credit card application form. She further deposed that the last notice to repay the outstanding dues of credit card was sent to plaintiff on 10.09.2019 through e-mail as well as physically to her address and that she could not show any proof as to dispatch at this stage, however, that was reflected in the e-mail logs Ex.D1W1/I. Further, the witness was confronted with Ex.D1W1/P (Colly) I.e. the credit card member agreement and most important terms and conditions of credit card and she was asked by which terms or condition, the defendant was empowered to debit the salary account for outstanding dues of the credit card to which she replied that that was mentioned on page 15 under the heading of Lien and Right to set off under the card member agreement. She further deposed that at the time of delivering the card, the above mentioned terms and condition were supplied to the Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.16/26 plaintiff. That was a matter of record what amount to was debited from the salary account of the plaintiff towards the outstanding dues of the credit card. Further, the witness was confronted with Ex.D1W1/C i.e. SMS log and asked whether the SMS log pertains to the credit card or the salary/saving account of the plaintiff to which, the witness states that that was of both (running into 18 pages). During the period of 27.12.2018 to 27.05.2019, the SMSs for credit cards were sent on mobile no. 8929356027 and during the same period, the SMSs for salary/saving account were sent on mobile no. 9999553979. She voluntarily deposed that the first message as to the credit card was sent on 26.12.2018 on mobile no. 9999553979 and after that new number was updated which was 8929356027 and after 27.05.2019, the SMSs as to the credit card were also sent on mobile no. 9999553979. She denied the suggestion that there was not record from which that could be inferred that after 27.05.2019, the SMSs as to the credit card were also sent on mobile no. 9999553979. She denied the suggestion that the plaintiff ever requested to update her mobile no. from 9999553979 to 8929356027. Further, the witness was confronted with D1W1/I i.e. statement of delivery through e-mails and she denied the suggestion that the account number mentioned in the statement i.e. 0001011930001095820 was not of plaintiff. She voluntarily deposed that that was AAN (alternative account number) of credit card and that had been mentioned at page 77 i.e. legal notice also. She admitted that in Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.17/26 electronic detail of proof of delivery of credit card Ex.D1W1/E, 'the name of recipient was mentioned as Prashant Only'. She voluntarily deposed that there were instructions from the side of the plaintiff to Blue Dart to deliver that to the family member also.
17.Further, defendant examined one person namely Sh. Vivek Kumar S/o Sh. Gulab Singh, aged about 30 years, working as Assistant Manager Legal with Blue Dart Express Limited as DW2. He has brought one system generated proof of delivery for Awb No. 36080937970 dated 29.12.2018 and Reference No. 1836360928401533 duly signed by him Ex. DW-2/A. The shipment was picked up by Blue Dart from the office of HDFC Bank on dated 29.12.2018 for the delivery to consignee namely Ms. Shikha Sharma at Gurugram-122001. He has stated that the shipment was delivered on 31.12.2018 at 14:16 hours to Prashant i.e relative brother having driving license ending last 4 digits i.e. 3710.
18.DW2 was cross examined wherein he deopsed that he did not have any personal knowledge of shipment in question and that earlier he was not aware about the content of the shipment. He also stated that after receiving summons from the court, he enquired from the concerned department of the company and that the shipment was of document category which might have the bank statement or cards or any other document. He further deposed that he could not say specifically about the content of the shipment and that he could not say whether the shipment was containing credit Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.18/26 card, he needed to veify from his department since the summons were regarding the delivery of the consignment bearing no. AWB-36080937970 only. He further deposed that he could not show signature/acknowledgement of the recipient of that shipment. He voluntarily deposed that at the time of delivery, the ID and name of the recipient was captured and that they did not capture the image of ID of the recipient, the delivery boy used to see the photo ID. He further deposed that he could not say the name of the delivery boy, however, the employee code was 104607, who had delivered the same.
19.Further, one person namely Sh. Sachin, from Admin. Branch, RBSM School was examined by the defendant as DW3. He brought on record an authority letter dated 01.04.2024 (Ex. DW3/1), admission form of Yatharth Sharma along with documents i.e. birth certificate, Aadhar Card of Sh. Prashant Sharma and Ms. Soumya Sharma, report card of Global Public School of Yatharth Sharma [Ex. DW3/2 (colly) (OSR)]. Certified copy of fee receipt of Yatharth Sharma dated 10.04.2019 along with statement of account of RBSM Public School which is now Ex. DW3/3 (colly) (OSR).
20.Thereafter, one Sh. Prabhas Kumar, Assistant Manager, Standard Chartered Bank was examined as DW4, who brought on record certified copies of statement of account bearing No. 53510823534 of Mr. Prashant Sharma for the period of 01.01.2019-31.12.2019 along with certificate u/s 65B Indian Evidence Act [Ex. DW4/3 (colly)] and a certified Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.19/26 copy of account opening form along with KYC documents for aforesaid account [Ex. DW4/4 (colly)(OSR)].
21.DW 3 and DW 4 were examined and discharged without their cross examination on 01.04.2034 because none was appearing on behalf of plaintiff from last 7 dates of hearing.
22.Thereafter, right of plaintiff to advance final arguments was closed on 06.06.2024 for non-appearance on her behalf.
23.Final Arguments heard on behalf of defendant, Ld. Counsel for Defendant argued that the plaintiff has failed to prove her case, per contra defendant has proved that she has applied for the credit using her net-banking credentials, the credit was received by her brother Prashant Sharma from the payment of school fee of nephew of plaintiff made by him using the credit card, payment made by him into the credit card account of the plaintiff and through admission of the plaintiff that there is only Prashant Sharma living on the registered address of the plaintiff on which the credit card was sent by the defendant bank. Hence, the case of the defendant is liable to be dismissed.
Issue No.1
24. The burden of proving the issue no.1 is on the defendant. Defendant has challenged that maintainability of suit and has stated that the suit is liable to dismissed under Order VII Rule 11 (a) of CPC. It is alleged in the pleadings that the defendant has acted in its ordinary course of Banking Activity, there is no deficiency of service as well as no fraud is committed by the answering defendant as being alleged by the Plaintiff in Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.20/26 the present plaint. It is further stated, that the credit card has been issued on the basis of online application filled by the plaintiff, credit card has been delivered on the registered address of the plaintiff, SMS regarding online application and issuance of credit has been sent on the registered mobile number of the plaintiff and credit card has been received by the brother of the plaintiff namely Prashant Sharma, hence the cause of action may arise against Blue Dart or Prashant Sharma, but there is no cause of action against the defendant bank.
25.Order VII Rule 11 (a) of CPC states that the plaint shall be rejected if it does not disclose a cause of action.
26.It is settled law while deciding any matter as per Order VII Rule 11 of CPC, the court is bound to look into the contents of plaint only, hence the facts alleged in the written statement, that the defendant bank has issued the credit card on the basis of online application, the credit card is issued on the registered address or the SMS qua online application and issuance of credit card were sent on the registered mobile number are not to be considered.
27.The plaint is filed stating that the plaintiff has never applied for the credit card and defendant bank has committed fraud by issuing the credit card without her application. Further, it is stated that the defendant bank has created lien on her savings account and debited her account without her consent and it is also alleged that the officials of defendant bank has Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.21/26 issued a credit card in the name of the plaintiff by committing forgery of her signatures.
28.In the opinion of the court, the averments made in the plaint sufficiently reveals the cause of action against the defendant bank. Hence the case is not liable to be dismissed under Order VII Rule 11 (a) of CPC.
29.Hence, the issue no.1 is decided in favour of the plaintiff and against the defendants.
Issue No.2
30.The burden of proving the issue no.2 is on the defendant. The defendant has alleged that the cause of action has never arisen against the defendant, the same may have arisen against Prashant Sharma and BlueDart, however, plaintiff has never made them party to the present case, therefore the present case is not maintainable for non-joinder necessary party and misjoinder of parties.
31.In civil litigation, a necessary party is an individual or entity whose participation is essential for the court to fully and effectively resolve a dispute.
32.The present case is filed against the defendant seeking permanent and mandatory injunction as mentioned above on the ground that plaintiff has never applied for a credit card, despite that defendant bank has issued a credit card and delivered the same to one Prashant Sharma. Further, it is alleged that the defendant bank has created lien on the account of the plaintiff without her consent and also debited the said account without her consent. The plaintiff is deriving Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.22/26 her locus to file suit against the defendant bank from the fact that she has never applied for the credit card, despite that the defendant bank has issued a credit card, without her consent defendant bank has created lien on her salary account and thereafter defendant bank has deducted the amount from her savings account without her consent.
33.In the opinion of this court the matter can effectively be decided in absence of Blue Dart and Prashant Sharma, because if the plaintiff is able to prove the allegations raised by her against the defendant bank the decree can be passed in her favour.
34. In the light of above the issue no.2 is decided in favour of plaintiff and against the defendants.
Issue No.3 & 435.The burden of proving issue 3 & 4 is on the plaintiff, both the issues are taken together being connected.
36.Plaintiff has alleged that the officials of the defendant bank has cheated her by issuing the credit card in her name by committing forgery of her signatures when she has never applied for the same, further defendant bank has created lien on her account without her consent whereas in the SMS sent by the bank it is stated the lien is created on her request and the defendant bank has mishandled her account and debited the same without her permission in lieu of payment towards the dues of credit card.
37.Per Contra, defendant bank has alleged that the plaintiff has filed an online application for the credit card Ex. D1W1/D, Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.23/26 the messages regarding online application reflecting its status were sent on the registered mobile number of the plaintiff as shown in the SMS Log Ex. D1W1/C (colly), the credit card was sent on the registered address as shown in the account opening form Ex. PW-1/D1, the same was delivered to the brother of defendant namely Prashant Sharma as shown in Ex. DW2/A, the brother of plaintiff Prashant Sharma has credited the amount of Rs. 10,000/- into the credit card account as shown in Ex. D1W1/F, Prashant Sharma has also paid school fee of his son Yatharth in RBSM School using the credit card in dispute the same is proved by Ex. DW3/2 (colly) (OSR) and DW3/3 and account statement of credit card. It is further alleged that defendant has acted in ordinary course of banking and if there is any fault, then it is on the part of the plaintiff as she has not kept her online banking credentials in safe custody as she has stated in her cross examination that she does not remember where she has kept the envelope and the material contained in it. It stated that the plaintiff is having no cause of action against the plaintiff, she has failed to prove her case and on contrary defendant has proved that bank has performed its duty in proper manner and is not at fault.
38.The court is of the opinion that the plaintiff that evidence brought on record by the defendant like account opening form, attested copy of online application for credit card, details of account of Prashant Sharma, the transaction made by Prashant Sharma in the credit card account of plaintiff, the Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.24/26 receipt of payment of school fee of nephew of the plaintiff/son of Prashant Sharma has established that the application for credit card is filed using the net-banking credentials of the plaintiff, which are supposed to be kept by the customer in safe custody with care and protection, further the evidence brought on record by defendant clearly establishes that the credit card has been used by the brother of plaintiff namely Prashant Sharma. Further it is proved from the testimony of employee of Blue Dart Express Ltd. and documents brought on record by him that the parcel containing the credit card was delivered on the registered address of the plaintiff.
39. It is also established by the defendant that lien was created as per the MITC (Most Important Terms & Conditions) delivered with credit card and available on website.
40.In light of the above it can be safely stated that the plaintiff has failed to prove her case, on contrary defendant has sufficiently proved its defence, hence the issue no. 3 is decided in the favour of defendant and against the plaintiff. Issue No.5
41.The burden of proving issue no.4 is on the plaintiff. The plaintiff has claimed recovery of Rs. 50,000/- as compensation.
42.As it has already been decided that plaintiff has failed to prove her case, she has failed to prove that the defendant has issued the credit card in her name without any application filed by her, the amount was debited from her account and is Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.25/26 created on her account illegally, hence no question of compensation arises.
43.The issue no.5 is also decided in the favour of defendant and against the plaintiff.
Relief
44.In view of the above discussion the suit of plaintiff is dismissed. Digitally signed by NISHAT Announced in the Open Court on 28.09.2024. NISHAT BANGARH BANGARH Date:
2024.09.28 16:49:56 +0530 (NISHAT BANGARH) Civil Judge-02, South West, Dwarka Courts, New Delhi/28.09.2024 Suit No. 853/2019 Shikha Sharma Vs. HDFC Bank Ltd. Page no.26/26