Delhi District Court
Canara Bank vs Mr. Mukul Paul Taneja on 8 March, 2010
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IN THE COURT OF SH. LOVLEEN, CIVIL JUDGE DISTRICT
CENTRAL-04, DELHI
Suit No. 461/06
In the matter of :-
Canara Bank, A body corporate under the Banking
Companies Act 1970 with its head office at:
112, J.C. Road, Bangalore-560002 and having
one of its branch office at Hauz Khas Market,
New Delhi.
...Plaintiff
VERSUS
1. Mr. Mukul Paul Taneja,
B-20, May Fair Garden,
Hauz Khas Enclave,
New Delhi-110016.
2. Ms. Nirmala Taneja,
B-20, May Fair Garden,
Hauz Khas Enclave,
New Delhi-110016.
...Defendants
Date of Institution: 02.05.2000
Date on which judgement was reserved: 08.03.2010
Date of Pronouncement of Judgement: 08.03.2010
SUIT FOR RECOVERY OF Rs.2,03,858.00/-
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JUDGEMENT
1. The plaintiff has filed the present suit for recovery of Rs.2,03,858/-
alongwith interest & costs.
2. The plaintiff is a Body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970, having its Head office at 112, J.C. Road, Bangalore. Hauz Khas Market, New Delhi is one amongst its branches spread through out India. Mr. E. Earan is one of the officers and duly constituted attorney of the Plaintiff. He is conversant with the facts of this case and is in a position to state about the correctness of the same He is authorized to sign and verify the plaint and to constitute the suit on behalf of the plaintiff. Defendant No. 1 and 2 are residents of B-20, May Fair Garden, Hauz Khas enclave, New Delhi- 110016. Defendant No. 1 is son of defendant No. 2. The plaintiff bank has certain credit card systems including Cancard-Visa exclusively for people with good income and integrity. Such cards are issued only to selected affluent customers who are dignified and bank is confident of full recovery. The cards enable such persons to travel with less cash in hand 3 but do all expensive shopping, buy air/rail tickets, enjoy hotels, hospital facilities and even draw cash from various Automatic Teller Machines (ATM) when they are on move or any other exigency. The plaintiff has many member Establishments. They include thousands of big shops, Railways, Indian Airlines, other private Airways, Hospitals, Star Hotels etc. spread through out India. The Member Establishments allow purchases/services on credit to the Cancard-Visa holders. When a Cancard-vis holder approaches Member establishments for buying an Air ticket or enjoying the luxury or five star hotel facility or having a grand shopping, as the case may be, the Member Establishments make available such facilities to the Cancard holder on credit basis None for the defendant. Demand the amount immediately from the plaintiff bank. The plaintiff immediately honours such demands from Member Establishments and make payments to them without demur on behalf of the Cancard-Visa holder irrespective of whether he is keeping sufficient credit balance with the plaintiff bank or not. A Cancard-VISA holder apart from the aforementioned facilities has n added advantage to have cash withdrawals from any of the various Automatic Teller Machines (ATM) maintained by 4 the plaintiff bank throughout India. The plaintiff bank recovers the payments made to member Establishments & Cash payments with service charges from the respective Cancard holders. In case of fraud on the card or misuse or loss theft of the card and also in cases of non-payment of dues by the Card holder, the plaintiff bank can not list the card. Once hot listed, the card is seized at the time of next presentation and destroyed by breaking it. However, since the card-holder's account is generally debited 5 to 6 weeks after the actual use of card by the card holder, all the facilities availed by the card holder before the not listing of the card cannot be accounted for within the date of not listing. Thus, all such payments are debited to the account of the card-holder after the card is not listed. The defendants were maintaining a saving bank account in their joint name bearing No. 26303 with the plaintiff bank. On 09.03.1996, the defendants had applied for Cancard Visa card facility to the plaintiff bank in the name of defendant no. 1 with add on card in the name of defendant No. 2. The plaintiff bank, reposing full confidence in the defendants and without any doubts regarding possibilities of non-payment or default on their part, considered the application and issued a Cancard-VISA No. 4543 5 6340 1015 8576 to defendant NO. 1 and an add on card no. 4543 6340 1015 8584 to defendant No. 2. The cards issued to the defendants were frequently used by the defendants. Whenever payments were made to Member Establishments or cash payments were made, such payments were being debited to the joint Saving Bank account No. 26303 of the defendants. Initially the defendants were keeping sufficient balance in their Savings Bank Account. However, from 10.05.1997, the defendant's saving bank account was continuously overdrawn due to the debiting of payments made to member establishments and cash withdrawals from ATMs. The defendants did not make any remittance to the S B Account after 10.05.1997, but continued to avail the credit facilities under to the Cancard-VISA. Since the defendants continued to avail the credit card facilities and failed to make remittance in their saving bank account, the liability in the account mounted up. Repeated visits, letters and requests by officials of the plaintiff bank did not evoke any positive response. Letters dated 22.01.2000 sent by courier was returned unaccepted. The defendants are having substantial means and have capacity to pay. The defendants have willfully defaulted and did not clear the liability inspite of the 6 repeated requests from the plaintiff. Being constrained, ultimately on 21.08.1999, the plaintiff bank, through its advocate, caused a lawyer notice to the defendants. Sine the account of the defendants has been marked for recovery on 05.07.1999, the plaintiff has transferred the liability to a separate account marked 'Loan Past Due' (in short known as LPD). As per the books of account maintained by the plaintiff Rs. 1,36,602.85/- is outstanding as dues to the plaintiff from the defendants on account of the overdrawings in Savings Bank account. Hence, unapplied interest of Rs. 67,256/- from 01.04.1998 till date 19.38 % per annum compounded quarterly is due to the plaintiff from the defendant. The total liability inclusive of the unapplied interest till dater is Rs. 2,03,858/- in saving bank account. Since the defendant has failed to clear the due inspite of several requests, reminders, notices etc., the last being the notice dated 22.01.2000. Hence the present suit has been filed.
3. Defendant contested the suit by filing WS in which preliminary objections has been taken on behalf of defendant that the present suit is time barred.; that the plaintiff has not approached this Hon'ble Court with 7 clean hands and has distorted the facts.; that the suit of the plaintiff has not been properly verified as per Order 6 Rule 15 CPC. Rest of the averments contained in the plaint are denied.
4. Replication was filed on behalf of plaintiff to the written statement of defendants in which the averments made in the written statement have been denied and averments made in the plaint have been reaffirmed.
5. After completion of pleadings following issues have arisen vide order dated 12.09.2001.
1. Whether the suit is time barred? OPD.
2. Whether the plaintiff is entitled to recover the amount from the defendants, if so, what amount? OPP.
3. Whether the plaintiff is entitled to recover interest as claimed in the plaint?
OPP.
4. Relief.
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6. In support of his case, the plaintiff has examined Sh. S.S. Sharma as PW-1. He has got proved certain documents on record i.e copy of GPA as Ex. PW-1/1, the original saving bank account opening form as Ex.-1/2, the specimen signature cards of defendant No. 1 and defendant No. 2 as Ex. PW-1/3 & Ex. PW-1/4 respectively, the original cancard application dt. 09.03.1996 as Ex. PW-1/5, statement of account is Ex. PW-1/6, office copy of the letter dated 22.01.2000 as Ex. PW-1/6A, Fax transmission verification report as Ex. PW-1/7, the courier receipt of M/s Madhu courier Services as Ex. PW-1/8, the returned cover as Ex. PW-1/9 , Notice dt .21.8.1999 as Ex. PW-1/10, the registration slips as Ex. PW- 1/11 and Ex. PW-1/12, UPC sheet as Ex. PW-1/13, the A/d cards with acknowledgement as Ex PW1/14 & Ex PW1/15, Statement of saving bank account as Ex PW1/16, the LPD account sheet as Ex PW1/17.
On the other hand, the defendant no.1 & 2 had filed their evidence by way of affidavits on record. But since the defendant no.1/DW1 failed to appear in the Court for complete cross examination, therefore, by way of order dt. 2.12.2005 the evidence of defendant no.1 was closed. It was 9 clarified by my Ld. Predecessor that the evidence by way of affidavit filed by DW1 shall not be read in support of his case as he has not made himself available for cross examination. The defendants failed to take any steps for the recall of the order dt. 2.12.2005. As such I shall not rely upon the affidavit of DW1 in deciding the present matter. On 11.1.2007 my Ld. Predecessor was pleased to close the opportunity of defendant no.2 to lead evidence in support of his case.
7. I have heard the Ld. Counsel for the Parties and perused the material available on record. My issuewise findings are as under:-
8. ISSUE No.1 Whether the suit is time barred? OPD.
The onus to prove this issue is upon the defendant. The defendants' evidence has been closed by order by my Ld. Predecessors dt. 2.12.2005 & 11.1.2007. As such no material has been placed on record by the defendants to prove this issue. Perusal of the record reveals that the present suit has been filed on 1.5.2000 and the last transaction was made 10 by the defendant on 28.11.1997 as per the statement of account pertaining to the cancard-visa account which is Ex PW1/6. As such the present suit is within the period of limitation. Hence, this issue decided in favour of plaintiff and against the defendants.
9. ISSUE NO. 2 & 3.
Whether the plaintiff is entitled to recover the amount from the defendants, if so, what amount? OPP.
Whether the plaintiff is entitled to recover interest as claimed in the plaint? OPP.
The onus to prove these issues is upon the plaintiff. The present suit has been filed by the plaintiff for recovery of Rs.2,03,858/- which consists of Rs.1,36,602.85/- as the amount outstanding against the defendant on account of overdrawings in the saving bank account maintained by the defendants with the plaintiff and Rs.67,256/- is the un-applied interest @19.38% p.a compounded quarterly.
10. The case of the plaintiff is that the defendants had been extended credit card facilities and the amount of purchases/withdrawals made by the 11 defendant by using the credit card issued by the plaintiff were debited from the saving bank joint account no.26303 maintained by the defendants to the plaintiff bank by way of Funds Transfer Voucher (FTV). The saving bank account of the defendants became over drawn on 10.5.1997 due to cancard FTV debit and the defendants failed to regularize their account while they continued to avail cancard facility. On 5.7.1999, the overdrawing amount to the tune of Rs.1,36,602.85/- was transferred by the plaintiff to a separate account namely Loan Past Due (LPD) for better follow up of the matter with the defendants. The statement of account pertaining to the saving bank joint account of the defendant is Ex PW1/16 (colly) and the same is certified as per Bankers Books of Evidence Act and can be relied upon by this Court. The deposition made by the witness PW-1 in support of the case of the plaintiff bank has not been cross examined completely by the defendants. The cross examination of PW1 reveals that the defendants have failed to put forward their case pertaining to dispatch of letter dt. 22.1.2000 by the plaintiff bank to the defendants, whereby the defendants were requested to regularize their saving account as well as the relevant facts and courier receipts. Similarly, the defendants 12 have not put their case to the witness PW-1 regarding dispatch and service of legal notice dt. 21.8.1999 which is Ex PW1/10 and the consequent regd. A.D, UPC receipts. Neither have the defendants cross examined PW-1 with regard to the suit amount claimed by the plaintiff bank to be outstanding in the name of the defendants. As such, I am of the opinion that the deposition of the PW1 qua above mentioned extracts in his affidavit may be treated as admitted by the defendants. It has been held categorically by the Hon'ble High Court in AIR 1958 P& H 440:-
a party should put to each of his opponents witness so much of his case as concerns that particular witness. If no such questions are put, the courts presume that the witnesses account has been accepted.
Therefore, I am of the opinion that the plaintiff is entitled to a decree for recovery of Rs.1,36,602.85/- from the defendants on account of overdrawings in their saving joint account.
11. The plaintiff has sought a further decree for the recovery of Rs.67,256/- from the defendants towards the interest incurred by the defendants. The plaintiff bank has relied upon the testimony of PW-1 as 13 per which the amount sought to be recovered as interest is un-applied interest from the 1.4.1998 to 1.5.2000 @19.38% p.a compounded quarterly. However, the plaintiff bank has failed to place on record any document which may show that the same was contractual rate of interest as permitted by the guidelines of the RBI. Moreover, the plaintiff bank has not proved the terms and conditions governing the cancard-visa 1994 which pertains to the regulation of the use of the credit card issued by the plaintiff to the defendant. As such the rate of interest claimed by the plaintiff bank @19.38% appears to be unconscionable and the same cannot be granted. An interest @6% p.a. on the principal amount would be reasonable and justified in the present facts and circumstances. As such these issues are decided in favour of the plaintiff and against the defendant.
12. RELIEF In the light of above discussions, the suit of the plaintiff is decreed and a decree for recovery of Rs.1,36,602.85/- alongwith costs & interest @6% p.a. from the filing of the suit i.e. 2.5.2000 till its realisation is 14 passed in favour of the plaintiff and against the defendants no.1 & 2. Both the defendants are jointly and severally liable to pay the decreetal amount.
Decree sheet be drawn accordingly. File be consigned to the record room.
Announced in the open court
today i.e. on 8.3.2010
(Total pages 1 to 14) (Lovleen)
Civil Judge/Central-04/8.03.2010
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Suit No. 578/02/01
08.03.2010
Present: Counsel for the Plaintiff.
Counsel for the defendant.
Vide my separate judgement of even date announced and dictated in the open court, the suit of the plaintiff is decreed and and a decree for recovery of Rs.1,36,602.85/- alongwith costs & interest @6% p.a. from the filing of the suit i.e. 2.5.2000 till its realisation is passed in favour of the plaintiff and against the defendants no.1 & 2. Both the defendants are jointly and severally liable to pay the decreetal amount.
Decree sheet be drawn accordingly. File be consigned to the record room.
(Lovleen) Civil Judge/Central-04/8.03.2010