Delhi District Court
State Bank Of India A Body vs Smt. Rakhi on 30 September, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL: SENIOR CIVIL JUDGECUMRC (EAST): KKD COURTS: DELHI SUIT NO 208/08 Unique Case Identification No: 02402C0214872008 STATE BANK OF INDIA a body constituted by Parliament under the State Bank of India Act 1995 having its central office at Nariman Point Mumbai and one of its local head office at 11, Parliament Street, New Delhi - 110001. It has one of its branch at Laxmi Nagar, Delhi - 110092 which is under the administrative control of local head office at 11, Parliament Street, New Delhi - 110001 through its Chief Branch Manager Sh. N.K. Sharma. .....Plaintiff Versus Smt. Rakhi R/o F261, Near Paliwal Ki Dharmshala Delhi110 092. Also at F186, A/3, Laxmi Nagar, Delhi110 092. ....Defendant A. Date of Institution of Suit : 20/03/2008 B. Reserved for Order on : 22/09/2010 C. Date of Order : 30/09/2010 SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 1/15 D. Final Order : Suit decreed for Rs. 56,000/ along with interest @ 8% per annum from the date of institution of suit till realisation. SUIT FOR RECOVERY OF RS. 1,10,897/ (ONE LAKH TEN THOUSAND EIGHT HUNDRED NINETY SEVEN) AS ON DATE WITH COST, EXPENSES, PENDENTE LITE AND FUTURE INTEREST @ 14% P.A. WITH MONTHLY REST TILL RESLIZATION. J U D G M E N T
1. Plaintiff has filed this suit for a decree for a sum of RS. 1,10,897/ (One Lac Ten Thousand Eight Hundred and Ninety Seven) alongwith cost, pendentelite and future interest @ 14% per annum with monthly rest from the date of filing of the suit till realization in favour of the plaintiff and against the defendant.
2. In brief case of the plaintiff bank is that plaintiff is a body incorporated under the the State Bank of India Act 1955 (Act. No. XXIII of 1955) having its central office at Nariman Point, Mumbai. It is a body with perpetual succession and it can sue and be sued in its own name. It is engaged in business of banking. It has various local head offices including one at 11, Parliament Street, New Delhi110 001. It has various branch offices throughout India including one at Laxmi Nagar, Delhi-110092 which is under the administrative control of local head office at 11, SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 2/15 Parliament Street, New Delhi - 110 001.
As alleged, that Mr. N.K. Sharma who has signed and verified the present plaint and instituted the present suit on behalf of plaintiff Bank, is presently posted as Chief Manager in State Bank of India at Laxmi Nagar, Delhi92 branch and he is fully conversant with the facts of the case on the basis of record maintained by plaintiff bank in normal course of business and, further, he is in a position to depose about correctness thereof. As per plaintiff, even otherwise he is competent and authorized to sign and verify the pleadings, vakalatnama, affidavit applications and executions etc. and to do all such acts as are necessary for the proper conduct of the present suit as per the general regulations No. 76 and 77 of State Bank of India general Regulations 1955 framed by Reserve Bank of India in exercise of its powers conferred under Section 50(3) of State Bank of India Act 1955 with the previous approval of Central Government read with notification published in the Gazette including one published on 27.03.1987.
Plaintiff has alleged that the defendant has been maintaining a saving account bearing No.10193245672 with the plaintiff bank and she has been operating the same as per her requirement and convenience. As alleged, the defendant is also enjoying ATM facility from the plaintiff bank having ATM Card No. 6220180649900081286 and the defendant has been operating the ATM facility from time to time. As alleged on 21.03.2005 the defendant was having in her saving account credit balance of Rs. 10,040/ and the statement of ATM reflects that defendant has withdrawn SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 3/15 Rs.72,000/ on different intervals between the period 22.03.2005 to 09.08.2005 and on each date a fixed amount of Rs. 8,000/ was withdrawn by the defendant in total by using and operating the ATM twice, thrice or four times a day.
As per plaintiff, plaintiff came across the above mistake only on 10.08.2005 when the ATM had debited first time the amount of Rs. 8,000/ and credit balance of Rs. 110/ is shown in the account of the defendant.
As alleged the ATM accounts are controlled and supervised from centralized office of the plaintiff bank at Mumbai and it was only due to mechanical/human error that the amount of Rs. 72,000/ withdrawn by the defendant on different dates could not be debited to her account time to time due to mechanical fault/failure of ATM and it regularly flashed as Rs.10,040/ outstanding in the account of the defendant. As per plaintiff, defendant knowing it well that there is no credit balance in her account after withdrawal of Rs. 8,000/ first time, plaintiff kept on withdrawing Rs. 8,000/ on different dates upto total withdrawal of Rs. 72,000/ which shows malafide, dishonest and fraudulent intentions of the defendant towards the plaintiff bank and further the defendant failed to comply with the legal notice dated 14.10.2005 sent under Regd .A.D. cover followed by certificate of posting also remained unresponded which shows the malafide of the defendant.
As per plaintiff in this manner the defendant has overdrawn the SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 4/15 amount which did not belonged to her and the account of the defendant has been enriched illegally for Rs. 72,000/till 09.08.2005 on which date the error in ATM system was traced out. On being approached by the plaintiff to refund the amount illegally withdrawn by her, the defendant avoided to refund the amount on one or other pretext and thus gaining time with oblique motives and is keeping the amount of the plaintiff in her custody illegally and unlawfully. The defendant is thus, as alleged, liable to pay the amount of Rs. 72,000/ with accrued interest at prevalent rate which comes to Rs. 38,897/ for the period 22.03.2005 till 31.03.2008 rate till realization together with cost of the suit and expenses. The total liability of the defendant thus comes to Rs. 1,10,897/ with future interest due till realization. It is with these averments that plaintiff has filed this suit.
3. Vide order dated 09/04/2008 summon for settlement of issue were ordered to be issued to be served upon the defendant. On 17/07/2008 husband of the defendant had appeared. Vide order dated 17/07/2008 it was observed that information of the proceedings was given to husband of the defendant on 24/05/2008 and the same was acknowledged by husband of the defendant in the court on the said date. Despite expiry of the statutory period for filing the WS, matter was adjourned for WS of defendant subject to cost of Rs.1000/. On the next date of hearing (i.e. 4/09/2008), WS was not filed and the right of the defendant to file the WS was closed and matter was adjourned for 3/11/2008 for evidence of the plaintiff. On 07/1/2009 an application u/sec 151 CPC was moved on SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 5/15 behalf of the defendant. After taking reply of the said application from the plaintiff the said application was dismissed vide order dated 4/2/2009. On 28/10/2009 affidavit of PW1 Sh. Dharmender Batra was tendered and matter was adjourned for cross examination of PW1 Dharmender subject to cost of Rs. 2000/ payable by the defendant. On 17/2/2010 an application was moved u/sec 151 CPC on behalf of the defendant with prayer that cost imposed on 28/10/2009 be waived. The said application was dismissed subject to further cost of Rs.5000/ and also on the said date opportunity of the defendant to cross examine the plaintiff was closed. Vide order dated 10/03/2010, an application was moved u/sec 114 read with section 151 CPC for recalling the last order dated 17/2/2010 and Ld. Predecessor of this Court was pleased to reduce the cost to Rs.3000/. On 19/05/2010 cross examination of PW1 concluded and PE was closed by Ld. counsel for the plaintiff by making separate statement to that effect. In her defence, defendant has appeared in witness box as DW1 Ms. Rakhi and DE was closed vide order dated 30/07/2010.
4. I have heard Sh. Vijay Prakash, Advocate for plaintiff and Sh.Sanjay Saxena, Advocate for defendant and gone through the material available on Judicial file. Ld. counsel for defendant has relied upon following case laws:
(a) Elamkunnapuzha Panchayath and etc. v. Dinkar and etc. AIR 2005 Kerala 263
(b) Alson Motors v. Rajesh Kumar AIR 1993 Jammun & Kashmir 12 SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 6/15
(c) Bogidhola Tea and Trading co. Ltd. & another v. Hira Lal Somani 2008 (3) Civil Court cases 548 (SC).
On the other hand Ld. counsel for the plaintiff has relied upon one case law reported a Indian Bank v. Mocro Ltd. AIR 2005 Andhra Pradesh 328. I have also gone through abovesaid case laws with utmost regards.
Ld. counsel for the plaintiff has submitted that right of the defendant to file the WS has been closed vide order dated 04/09/2008. Ld. counsel for the plaintiff further submitted that claim of the plaintiff bank is substantiated by Ex. PW1/12 which has been duly certified vide certificate Ex. PW1/10 in terms of the provisions of Bankers' Books of Evidence Act.
Further Ld. counsel for the plaintiff has submitted that it has not been suggested to PW1 Mr. Dharmender Batra that amount as alleged by the plaintiff has not been withdrawn by the defendant. Further Ld. counsel for the plaintiff submitted that no suggestion has been given to PW1 to the fact that defendant was not served with the notice Ex. PW1/1 which was despatched to the defendant through registered postal receipt Ex. PW1/2 and Ex. PW1/3 and also through UPC Ex. PW1/4. Ld. counsel for the plaintiff further submitted that no suggestion has been given to PW1 Mr. Dharmender Batra that defendant was not served with another notice Ex.PW1/5 despatched through postal receipt Ex. PW1/6 and Ex. PW1/7 and also through UPC Ex. PW1/8. Further Ld. counsel for the plaintiff has drawn the attention of the court towards para. 4 of the affidavit of defendant SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 7/15 wherein defendant has failed to give details as to when she had admittedly used the ATM. As per Ld. counsel for the plaintiff as no WS has been filed by the defendant averments made in the plaint have remained uncontroverted and even statement of account Ex. PW1/11 has not been challenged by the defendant. Ld. counsel for the plaintiff submitted that by making withdrawal of Rs. 72,000/ by using ATM when the bank account of the defendant was not having to the credit of such amount, defendant has been enriched illegally at the cost of the plaintiff bank and defendant is under obligation to return the amount of Rs. 72,000/ alongwith interest and cost of the suit. As per Ld. counsel for the plaintiff credit of PW1 Mr. Dharmender Batra has not been shaken in the course of his cross examination by Sh. Sanjay Saxena, Advocate for the defendant. Lastly Ld. counsel for the plaintiff has submitted that defendant for reasons best known to her has not been placed on record her pass book with regard to the account in question despite the fact that admittedly defendant used to get her pass book updated periodically. As per plaintiff had the defendant placed on record her pass book, withdrawal in the pass book would have suggested, the manner in which the defendant had dealt with her account with the plaintiff bank. As submitted pass book would have shown the amount credit to the account of the defendant on various occasions and further would have shown as to whether at any point of time defendant had to her credit an amount of Rs. 72,000/. As per Ld. counsel for the plaintiff suit of the plaintiff deserves to be decreed as prayed for.
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On the other hand Ld. counsel for the defendant has submitted that even if we go as per the contents of the Ex. PW1/12, only a sum of Rs.56,000/ has been withdrawn by the defendant and not sum of Rs. 72,000/ as alleged by the plaintiff. Further Ld. counsel for the defendant submitted that ATM card given to the defendant was having debit facility only. Further as per Ld. counsel for the defendant the printed slip Ex.PW1/12 produced by the plaintiff are not admissible in law. Further as per Ld. counsel for the defendant plaintiff has not proved on record as to with what sort of technical defect in ATM machine was suffering. Further as per Ld. counsel for the defendant for that purpose even no expert witness has been examined by the plaintiff. Further Ld. counsel for the defendant submitted that there is no evidence on record to suggest defendant had withdrawn a sum of Rs.72,000/ personally. Further Ld. counsel for the defendant submitted that there has been no withdrawal in May/ June and had the intention of the defendant been malafide she could have withdrawn a sum of Rs. 8000/ daily or on number of times on the same day. As per Ld. counsel for the defendant Ex. PW1/12 at no point of time reflects the balance amount as credit in account of the defendant as Rs. 10,040/. Ld. counsel for the defendant has vehemently submitted that defendant has withdrawn only that much amount which was deposited by her with the plaintiff bank. Also Ld. counsel for the defendant submitted that if case of the plaintiff is taken to be true then the defendant is liable to suffer prosecution for the offence of theft and she is not liable under the civil law.
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Lastly Ld. counsel for the defendant has submitted that despite the fact that WS has not been filed by the defendant plaintiff is supposed to prove its case on judicial file by leading cogent and convincing evidence. With these submission prayer has been made for dismissal of the suit with costs.
5. I have given considered thought to the rival submission made by Ld. counsel for the parties. Keeping in view the fact and circumstances of the case as they arise on the basis of material available in the judicial file.
6. Admittedly defendant is having a bank account with the plaintiff bank Vide account no. 10193245672 and also defendant was enjoying ATM facility from the plaintiff bank having ATM card bearing no. 6220180649900081286 and defendant had been operating ATM facility from time to time. In the cross examination of PW1 Mr. Dharmender Batra he has been made to depose as under: " It is correct that amount of Rs. 72,000/ was withdrawn by the defendant but it was not debited in the account of the defendant due to mechanical error. When the accounts were being reconciled after about 5/6 months then this mistake came to the knowledge of the plaintiff. The said mechanical error was removed when the mistake came to the knowledge of the plaintiff. It is correct that the money was withdrawn from the ATM."
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It has not been suggested to the PW1 Sh. Dharmender Batra that there was no mechanical error. Further it has not been suggested to PW1 Sh. Dharmender Batra that defendant had not used the ATM for withdrawal of the money or that her ATM card stood lost/misplaced and was misused by some other person. It has also not been put to this witness that plaintiff bank disclosed PIN No. of the defendant to some other person and thus allowing the said other person to illegally withdraw the money from the account of the defendant. Further it has not been suggested to PW1 Sh. Dharmender Batra or any of the bank official of the plaintiff bank is having any malafide intention, prejudice against the defendant herein so as to be having grudge for filing false case against the defendant. It is equally pertinent to note that the defendant in her affidavit has not disclosed the details of the occasions as to when she had admittedly withdrawn the money from her account maintained by her with plaintiff bank using ATM card. Defendant intended to give all such details in her affidavit but defendant failed to give details in para. 4 of her affidavit. Even in the affidavit of the defendant there is no deposition that her ATM card has been misused by some other person against wishes and intentions of the defendant. Defendant in her affidavit vide para. no.6 has even reiterated the stand of the plaintiff that some mechanical error had occurred in ATM system of the plaintiff bank during the withdrawal or transaction. As per defendant the transaction shown by the plaintiff bank from 20/03/05 to 09/08/05 are wrong and fabricated due to SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 11/15 mechanical error of their system but as already observed the defendant has not given the details of the transaction which she had admittedly carried out while using the ATM card. She has not even produced her pass book which she got updated periodically. In these circumstances bald deposition of the defendant that transaction shown by the plaintiff from 22/03/05 to 08/09/05 are wrong and fabricated, cannot be believed. Defendant has not proved or even suggested that on any other occasion ATM machine had worked faulty either with her or with others with whom defendant may be in touch. Also there is no reason as to why ATM machine will make false entries in the account of defendant only. Defendant has not tried to bring on record any evidence that ATM machine had made false entries qua the other ATM users as well. To my mind presumption truth attaches to Ex.PW1/10 To prove that defendant had withdraw Rs. 72,000/ by using ATM card plaintiff bank has proved on record Ex. PW1/12 which has been certified vide certificate Ex. PW1/10. Also on 29/09/10 Ld. counsel for the plaintiff has placed on record one fair and legible copy of details of withdrawal made by the defendant. The said details have also been certified as per the Bankers' Books of Evidence Act. A careful perusal of Ex.PW1/12 and details of withdrawal furnished by the plaintiff on 29/09/10 reveals that defendant had only withdrawn a sum of Rs.56,000/ and not a sum of Rs. 72,000/ as alleged by the plaintiff bank. This is so despite the fact that vide order dated 22/09/10 Ld. counsel for the SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 12/15 plaintiff had wished to place on record details showing total liability of Rs. 72,000/ of the defendant towards the plaintiff. But the details furnished simplicitor suggest the withdrawal of Rs. 56,000/ by the defendant.
In the present case defendant can be said to have been served with the notice Ex. PW1/1 and Ex. PW1/5 in as much as the said notices were despathced at the correct address of the defendant but despite the said service of the defendant, defendant did not care to reply the same. Even the defendant has not given the details as to when she had actually and admittedly used the ATM facility. The pattern of withdrawal of money by using the ATM goes to suggest that intentionally on various occasions an amount of Rs. 8000/ were withdrawal on single day in the pattern of withdrawing Rs.7000/ and Rs.1000/. The pattern suggest that it was so done intentionally by the person withdrawing the money by using ATM. The pattern of withdrawal further suggest the possibility of error in the ATM machine showing the false withdrawals is quite negligible. Even in the course of the trial defendant did not care to file her WS. In my considered opinion and in totality of facts and circumstances of the case, plaintiff has been able to prove that the plaintiff had withdrawn a sum of Rs. 56,000/ by using ATM facility despite the fact that the said amount was not available in the bank account of the defendant being maintained with the plaintiff bank in as much as statement of account Ex. PW1/11 shows that on 21/03/05 SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 13/15 plaintiff was having a balance of Rs. 10,040/.
As defendant has made withdrawal without there being amount in her bank account being maintained with the plaintiff bank, the defendant is bound to return the said money to the plaintiff bank otherwise it will amount to allowing the defendant to get enriched at the cost of the plaintiff bank. Hence to my mind the plaintiff is under obligation to refund the said amount of Rs. 56,000/ to the plaintiff bank.
On the basis of Ex. PW1/X it can be said that the present suit has been instituted through competent person. Further in the course of cross examination of PW1 Mr. Dharmender Batra it has not been suggested that he is not competent to make deposition in the present case or that suit has not been filed through duly authorized person on behalf of the plaintiff bank. So to my mind the suit can be said to have been filed through competent/authorized person on behalf of the plaintiff bank.
As per the case of the plaintiff, plaintiff for the first time came to know about the withdrawal of the amount by the defendant on 10/08/05. Thereafter the suit has been filed on 24/03/08 as such suit can be said to be filed within the period of limitation. Defendant is resident of East Delhi & thus this court has territorial jurisdiction.
There is no agreement whatsoever between the plaintiff and the defendant for refund of the amount of Rs. 56,000/ withdrawn by the defendant. Further it is pertinent to note that despite coming to know about the withdrawal made by the defendant, suit has been lately filed on SUIT NO. 208/08 ANAND SWAROOP AGGARWAL SCJCumRC:East, Delhi Page No. 14/15 20/03/2008. Plaintiff served the first notice on the defendant on 14/10/05 and again served another notice on 13/02/08. I fail to understand as to why the plaintiff bank did not took legal action against the defendant immediately after sending notice dated 14/10/05 to the defendant. This conduct of the plaintiff bank suggest that even the plaintiff bank was not interested to take prompt action against the defendant. In my opinion on account of casual attitude taken by the plaintiff bank, plaintiff bank does not deserves interest for the period prior to the filing of the present suit. However plaintiff is entitled to pendentlite and future interest @ 8% per annum on a sum of Rs.56,000/ from the date of filing of the suit till its realization. Also plaintiff bank is entitled to the costs of the suit. As such suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendant for a sum of Rs. 56,000/ alongwith interest on the said sum @8% per annum from the date of filing of the suit till its realization. Also cost of the suit is awarded to plaintiff. Decree sheet be prepared. File be consigned to Record Room.
Pronounced in the open court.
Anand Swaroop Aggarwal
SCJ/East/KKD
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30/09/2010
Present: None for the plaintiff.
Husband of the defendant.
Vide separate detailed judgment, the suit of the plaintiff is decreed for an amount of Rs. 56,000/ with interest @ 8% per annum from the date of filing of the suit till realization with costs. Plaintiff is also entitled to the cost of the suit. Decree sheet be prepared. File be consigned to Record Room.
Anand Swaroop Aggarwal
SCJ/East/KKD
30/09/2010
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