Delhi District Court
Rajesh Sachdeva vs Citi Bank Na on 25 April, 2015
Page 1 of 17
IN THE COURT OF Ms.SUNENA SHARMA
Additional District Judge - 04 (SouthEast)
SAKET COURTS COMPLEX: NEW DELHI
RCA No. : 23/2014
Unique Case ID No.02406C0261792014
Date of Institution : 23.08.2014
Arguments concluded : 21.04.2015
Date of decision : 25.04.2015
Rajesh Sachdeva
s/o Sh B R Sachdeva
Sole Proprietor of
M/s United Engineers Service Station
Opp. Nehru Place Bus Terminal
Kalkaji, New Delhi - 110019
............. Appellant
V E R S U S
Citi Bank NA
through its branch manager
33, Basant Lok, Vasant Vihar,
New Delhi - 110057
............ Respondent
J U D G M E N T
1. Instant Regular Civil Appeal has been preferred by the appellant to assail the judgment & decree dated 07.10.2014 passed by learned Trial Court whereby Civil Suit bearing No.267/2013 filed by appellant against respondent for recovery of Rs.1,27,310/ was dismissed.
2. Briefly stated the facts of the case as borne out from the appeal and impugned judgment of learned Trial Court are as follows: Appellant filed a civil suit for recovery of Rs.1,27,310/ with pendentelite RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 2 of 17 and future interest @ 18% pa against the respondent on the premise that appellant is the sole proprietor of proprietorship firm M/s United Engineers Service Station. In December, 2008 appellant opened a current account bearing No.0015963228 under scheme of Citigold Business Account and vide letter dated 15.12.2008 respondent confirmed that no charges were being levied by it for depositing cash in any of the Citi Bank branch in Delhi. However, on receipt of statement of account for the month of September 2012, somewhere in October, 2012 appellant learnt that a sum of Rs.41,663.09/ was charged by respondent bank as service charges against cash deposit facility for the period wef 01.09.2012 to 30.09.2012. Against the levy of said charges, appellant lodged a protest vide letter dated 26.10.2012, but despite that a sum of Rs.1,27,310/ was deducted by respondent from September 2012 to January 2013 inclusive of service tax and education cess. The appellant instituted the suit for recovery of said amount with interest @ 18% pa from the date of deductions till date of realisation.
Respondent contested the suit and filed WS wherein factum of account holding by appellant; deduction of cash deposit charges to the tune of suit amount from appellant's account were admitted. The case of respondent is that appellant was duly informed regarding revision Schedule of Charges (hereinafter referred as 'SOC') under various heads including the cash deposit charges vide letter dated 20.06.2012 which was sent to appellant at his mailing address vide Airway Bill number CO9774713 dated 02.07.2012 through First Flight Courier and the same was duly received by appellant on 05.07.2012.
Appellant in the replication denied the case of respondent and asserted that the envelop received by him on 05.07.2012 was containing certain promotional pamphlets and no such letter dated 20.06.2012 was ever received by RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 3 of 17 him.
Vide order dated 13.08.2013, learned Trial Court framed the following issues in this case: "1. Whether the plaintiff is entitled for the decree for the recovery of Rs.1,27,310/ as prayed for ? OPP
2. Whether the plaintiff is entitled to the interest @ 18% pa?
OPP
3. Whether the letter dated 05.07.2012 (mentioned in place of correct date of 20.06.2012)has been delivered to the plaintiff or not ? OPD
4. Relief."
3. During trial, appellant examined himself as PW1 and closed his evidence. On behalf of respondent, only two witness i.e. DW1 Jagdish Salwan (witness from bank) and DW2 Sh Vipin Verma (witness from courier agency) were examined and evidence was closed. Learned Trial Court after hearing both sides and going through the record dismissed the suit vide impugned judgment and decree dated 07.10.2014.
4. Being aggrieved therefrom, appellant preferred the present appeal while taking more than 50 grounds, which are being summarized as under:
i) That impugned judgment and decree passed by learned Trial Court is contrary to law and facts, without application of mind, and without going through the evidence.
ii) That learned Trial Court failed to appreciate that appellant has opened the account with respondent only on the ground that no service charges would be levied for depositing cash in the account.
iii) That learned Trial Court failed to appreciate that respondent's
RCA No.23/2014 Rajesh Sachdeva v Citi Bank
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communication Ex.P2 for service of charges on cash pick up and cash delivery was addressed to appellant, whereas, alleged letter dated 20.06.2012 was neither addressed to appellant nor was ever served upon appellant and even original delivery sheet of courier was also never produced during trial by respondent for proving the dispatch and receipt of said letter.
iv) That respondent arbitrarily deducted the account of appellant to the extent of suit amount on account of cash deposit charges without any prior notice and without the consent of appellant, as was done in the case of cash pick up and delivery facility wherein, appellant's consent / permission was specifically sought.
v) That the service of letter dated 20.06.2012 through courier was disputed by appellant and same was never proved in accordance with law by the respondent.
vi) That the finding of learned Trial Court in impugned judgment and decree are based on conjectures and surmises against cannon of legal principles.
vii) That learned Trial Court wrongly held that an assumption arises against appellant that he had received the letter dated 20.06.2012 on 05.07.2012.
viii) That learned Trial Court has not considered the fact that WS was not filed by a duly authorised person or that the original attorney of DW1 was not produced at the stage of evidence and learned Trial Court proceeded with biasness and allowed the production of its original subsequent to cross examination of witness.
5. On issuance of notice, appearance has been entered in the appeal. Trial Court Record has also been requisitioned. Despite grant of time, respondent opted not to file any reply to appeal and argued the matter straightway contending that appellant has failed to point out any valid ground on the basis of RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 5 of 17 which impugned judgment or decree may be faulted, rather learned Trial Court has passed a reasoned judgment after appreciating all the material and evidence adduced on record by both the parties. It is also submitted that learned Trial Court has correctly appreciated the evidence and facts of the case and rightly passed the impugned judgment against appellant and the delivery of letter dated 20.06.2012 has also been duly proved by respondent through secondary evidence in absence of original delivery sheet of courier.
6. I have heard submission of learned counsels for parties and with their assistance also perused the Trial Court Record.
7. Learned counsel appearing on behalf of appellant has raised two fold arguments. The first argument put forth by him is that the appellant had opened a current account with respondent after taking confirmation from bank that no deposit charges have been levied by any of branches of respondent bank in Delhi. He further argued that in said circumstances, the respondent had no right or authority to revise the charges unilaterally without taking any consent or permission from appellant or even informing him prior to levying such charges upon him. He has drawn my attention to the letter Ex.P1 wherein respondent bank confirmed it to the appellant that there are no charges for cash deposits charges in any of the branch of respondent bank in Delhi and in case there happens to be any change or revision in the SOC, the same shall be communicated to appellant as per RBI Guidelines.
8. It is further submitted that respondent started illegally debiting the cash deposit charges from the current account of the appellant with effect from RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 6 of 17 01.09.2012 without seeking any prior permission or even informing the appellant in this regard. When the appellant on perusing the statement of account for the month of September 2012 came to know regarding levying of said charges for the period w.e.f. 01.09.2012 to 30.09.2012, he immediately lodged protest to respondent vide letter dated 26.10.2012. In reply, respondent vide its letter dated 08.11.2012 which is available on record as Ex.P7, informed the appellant that SOC has been revised with effect from 01.08.2012 and same has been sent to appellant's mailing address through first flight courier vide airway bill No.C09774713 on 02.07.2012 and same was received by appellant through one Ms.Savitri on 05.07.2012. Alongwith the said letter, respondent also enclosed the copy of said letter dated 20.06.2012 which was allegedly sent to appellant on 02.07.2012 through courier. Pursuant to said communication received from appellant, respondent sent another letter dated 07.11.2012 Ex.P8 and categorically denied having received any revised SOC from respondent on 05.07.2012 and called upon respondent to credit the illegally and arbitrarily deducted amount of Rs.1,27,310/ to his current account.
9. Learned counsel further submitted that appellant had never received any communication dated 20.06.2012 from respondent as alleged by them and instead appellant had only received some promotional leaflets Ex.P3 and Ex.P4 on 05.07.2012. It is also submitted that respondent has taken a false and incorrect plea of having informed the appellant vide aforementioned letter regarding revised SOC. He further argued that for the sake of arguments even if it is believed that appellant had received said communication dated 20.06.2012 from respondent even in that case mere information to the customer regarding revision of charges is not sufficient for levying charges under some new heads without RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 7 of 17 seeking any permission or consent from the customers.. He further argued that the banks cannot be allowed to revise their charges unilaterally without the consent of their customers especially when at the time of opening of account, they had assured the customer that no cash deposit charges have been levied by their bank in any of their branches in Delhi.
10. In this regard, learned counsel for respondent has drawn my attention to a letter dated 15.12.2008 Ex.P1 and submitted that even as per said letter it was made clear to the appellant that in case of any changes in SOC in future, the same shall be communicated to him as per RBI Guidelines. Learned counsel further submitted that as per RBI Guidelines there is no obligation on banks to seek consent or permission from their customers prior to revising SOC and the only condition which has to be fulfilled by the bank is to give one month prior notice to the customer informing them regarding revision of any service charges, which was duly complied by respondent bank even in the instant case. Learned counsel for respondent has placed on record net generated RBI Guidelines containing 'DBOD Master Circular Customer Service 2012' wherein vide para No.32 it has been prescribed that banks should follow provisions of the Code of Banker's Commitment to Customers, implication of which is monitored by the Banking Codes and Standards Board of India (BCSBI). Learned counsel has also placed on record the copy of 'Code of Bank's Commitment to Customers' wherein following obligations have been placed on banks regarding notifying any changes in fees or charges or the terms and conditions of said fees and charges. The relevant paras of said Code of Bank's Commitment to Customers' as well as 'DBOD Master Circular Customer Service 2012' runs as under: "Code of Bank's Commitment to Customers RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 8 of 17 3.4 Tariff Schedule 3.4.1 xxxx 3.4.2 Changes in fees and charges.
If we increase any fee or charge or introduce a new fee or charges, it will be notified through statements of accounts / email/SMS alerts/ notice board at branches, one month prior to the revised charges becoming effective. This information will also be made available on our website. 3.5.1 Changes to terms and conditions a. xxxx b. Normally, changes will be made with prospective effect giving notice of one month.
c. If we have made any change without notice, we will notify the change within 30 days. If such change is to your disadvantage, you may within 60 days of the notice, close your account or switch to any other eligible account without having to pay revised charges or interest."
'DBOD Master Circular Customer Service 2012'
6. Levy of Service Charges 6.1 Fixing service charges by banks The practice of IBA fixing the benchmark service charges on behalf of member banks has been done away with and the decision to prescribe services charges has been left to individual banks. While fixing service charges for various types of services like charges for cheque collection etc, banks should ensure that the charges are reasonable and are not out of line with the average cost of providing these services. Banks should also take care to ensure that customers with low volume of activities are not penalised.
Banks should make arrangement for working out charges with prior approval of their Boards of Directors as recommended above and operationalise them in their branches as early as possible. "
11. Learned counsel for appellant has argued that though the aforesaid documents i.e. 'DBOD Master Circular Customer Service 2012' as well as 'Code of Bank's Commitment to Customers' cannot be taken into account as the same were never filed before the Trial Court nor have been even proved as per law, but even assuming that the same may be considered, in that eventuality also respondent has failed in its obligation to give one month prior notice to the RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 9 of 17 appellant before charging the rates as per revised SOC, as the respondent has miserably failed to prove that the letter dated 20.06.2012 was duly served upon appellant. He further argued that as per respondent's case, respondent bank started levying cash deposit, cash pick up and cash delivery charges as per revised SOC with effect from 01.09.2012 whereas vide letter dated 13.07.2012 Ex. P2, respondent had called upon appellant to give his consent for cash pick up and cash delivery charges, but for the reasons best known to them, no information was given before levying charges on 'cash deposit' service. Learned counsel for appellant has further argued that said circumstances are clear manifestation of malafide on the part of respondent who, what to talk of seeking consent or permission from appellant even failed in putting him to notice of said new head of charges (deposit charges) before started deducting said charges from appellant's account.
12. In this regard, it is necessary to point out here that as per the revised SOC placed on record with letter dated 08.11.2012 Ex.P7, cash pick up and cash delivery charges have been levied as per each delivery basis or monthly basis. The customer was given option either to opt for cash delivery and cash pick up on per delivery basis or on monthly basis; whereas no such option were available with the customer with regard to cash deposit charges which were payable as per the monthly relationship value. Hence, in order to ask the customer to opt for any of two options, respondent sent its communication dated 13.07.2012 Ex.P2 with a request form to the customer to fill in annexed annexure their option for cash pick up and cash delivery charges and made it further clear that in absence of any revert from the customer, the bank shall presume the customers instructions to charge on per pick up /delivery basis for the aforesaid services provided by the RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 10 of 17 bank. Considering the aforementioned circumstances, there was no occasion with the respondent bank to call for any specific permission or consent from the customer before levying cash deposit charges, as they were within their right to fix the service charges as per the RBI Guidelines contained in Master Circular. Even the letter Ex.P1 dated 15.12.2008, nowhere indicates that respondent had made any commitment to the appellant to seek his prior approval/consent before revision /changes in SOC. As per letter Ex.P1, respondent only confirmed that as on date, when appellant intended to open a current account with respondent, respondent had not been charging any cash deposit charges in any of its branches in Delhi, and in case of any future revision or change in SOC, the same shall be intimated to appellant as per RBI Guidelines. Considering the fact that banking business in India is governed by the rules, regulations and guidelines formulated by the Reserve Bank of India, we have to fall back on RBI Guidelines in this regard. As already noted above, as para 6.1 of DBOD - Master Circular on Customer Service 2012, the practice of IBA fixing the benchmark service charges on behalf of member banks has been done away with and the decision to prescribe service charges has been left to individual banks. Further as per provision of Code of Bank's Commitment to Customer, in case of introduction of any new service charges, the same will be notified to the customer through statement of account/email /SMS alerts/notice board at branches, one month prior to the revised changes become effective.
On the other hand, appellant has also failed to bring forth anything contrary to show that customer's permission or consent for revision of SOC was necessary for the respondent before levying revised SOC upon its customers.
13. Now, what is required to be seen is that whether the respondent has RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 11 of 17 been able to prove on record that appellant was duly notified regarding the change in SOC and was given one month prior notice before levying revised charges in his current account. As is evident from the plaint as well as document Ex.P6, the appellant has nowhere denied the receipt of communication from respondent on 05.07.2012 nor there is any specific denial that said communication received on 05.07.2012 was snot received through courier, nor it is anywhere claimed by appellant that said communication on 05.07.2012 was received by him vide any other mode. In replication, in reply to respondent's case as pleaded in the WS regarding sending of information about revision of SOC vide communication dated 20.06.2012, sent through Air Flight Courier on 02.07.2012, and receipt thereof by appellant on 05.07.2012, the appellant has admitted to have received some communication from respondent on 05.07.2012 without denying that same was received through courier as alleged in WS. Appellant has taken a plea that vide said communication he had received promotional pamphlet Ex.P3 and Ex.P4. Thus, what has been denied is that vide said communication received on 05.07.2012, the alleged letter dated 20.06.2012 was not received and instead some promotional leaflets Ex.P3 and Ex.P4 of respondent were received by appellant. Hence, in view of said admission on the part of the appellant, the contention that the courier receipt vide which a communication was delivered to appellant on 05.07.2012 has not been proved in accordance with law, loses its significance in as much as an admitted fact need not to be proved in view of provision of Section 58 of the Indian Evidence Act.
14. Learned counsel for appellant has further argued that the onus upon the respondent was not only to prove the receipt of said communication at appellant's end on 05.07.2012, but respondent was further required to prove RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 12 of 17 that vide said communication delivered through courier at appellant's address, it was letter dated 20.06.2012, which was delivered to the appellant, but respondent has miserably failed to discharge the said onus as the respondent failed to examine the person who had actually put that letter in the envelop which was sent through courier to the appellant. He further argued that the bank has also failed to place on record any record of the bank wherein the bank used to make entries regarding various communications/mails bank used to dispatch to its customers.
15. Perusal of the evidence adduced before learned Trial Court shows that in order to discharge the onus of issue No.3, respondent has examined its AR Sh Jagdish Salwan as DW1. DW1 in his examination in chief has deposed that 'Defendant bank had sent communication dated 20.06.2012 through courier vide Airway Bill No.C09774713 on 02.07.2012 to the plaintiff, which was received by the plaintiff on 05.07.2012, informing the plaintiff that with effect from 01.08.2012, the charges will henceforth be levied on Cash Pickup, Cash Handling and Cash Deposit services.' Hence, vide said deposition respondent has clearly put forth its case that vide courier airway bill No.C09774713, the communication dated 20.06.2012 was sent to the appellant and the same was received by appellant on 05.07.2012. As already observed, appellant has not denied the receipt of communication from respondent on 05.07.2012, but has taken the plea that vide said communication he had received promotional leaflets Ex.P3 and Ex.P4 and not the letter dated 20.06.2012, as alleged by respondent.
16. Under these circumstances, I am of the view that after the deposition of DW1 that vide aforesaid communication sent through courier, letter dated 20.06.2012 was sent to appellant, the onus shifts upon the appellant to disprove RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 13 of 17 the case of respondent in this regard. However, perusal of crossexamination of DW1 shows that there is no rebuttal to said assertion of DW1 as the only suggestion put to DW1 was that no document much less letter dated 20.06.2012 regarding levying of deposit charges was sent to appellant by the respondent bank. There is no suggestion to the effect that vide communication received through courier on 05.07.2012 by the appellant, no letter dated 20.06.2012 was received or that in said communication only promotional letters were received by the appellant. Had the appellant put any such suggestion to DW1 in his cross examination, the onus in that case would have shifted to respondent in proving that vide aforesaid communication delivered through courier on 05.07.2012, it was the only letter dated 20.06.2012 which was delivered and nothing else. Absence of crossexamination of DW1 on the aforesaid important aspect, will certainly lead to adverse inference against appellant. Here, reliance is placed on Bal Kishan v State & Ors : 1976 (12) DLT 311 wherein it was held that if witness is not cross examined on some material assertion made by him in his examination, party failing to do so shall be deemed to have admitted the truth of such assertion.
Even appellant's own deposition is lacking in this regard because as per his examination in chief, he had received an envelope from defendant containing business promotional pamphlets relating to its credit card and the gold account in the month of July, 2012. Here, the plaintiff has remained silent both about the date on which he allegedly received said promotional letter as well as about the mode vide which said envelop allegedly containing promotional pamphlets was received.
17. Whereas, in the replication as well as in his letter dated 17.11.2012 RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 14 of 17 Ex.P8, appellant seems to have admitted receipt of one envelope containing promotional leaflet of respondent bank on 05.07.2012 but here again appellant did not specify the mode of dispatch of said letter to him. It is pertinent to note that said letter, Ex.P8 was written by appellant to respondent bank only in response to respondent's letter dated 08.11.2012 Ex.P7 wherein respondent had claimed to have lent a communication dated 20.06.2012 to appellant through courier on 05.07.2012.
18. In said circumstances, when appellant has admitted to have received one envelope from respondent on 05.07.2012 it was incumbent upon him to either deny the receipt of envelope through courier or to specify that he had received said envelope through some other mode. From the conduct of the appellant in keeping silence in this regard, an inference can be drawn that said envelope allegedly received on 05.07.2014 was a courier envelope.
19. Now, appellant's claim is that said envelope received by him on 05.07.2014 was containing promotional letters of respondent and not the letter dated 20.06.2012 as alleged by respondent. Since, the onus to prove issue No.3 "Whether the letter dated 20.06.2012 has been delivered to the appellant or not?"
was upon the respondent, through DW1 respondent appears to have duly discharged the initial onus by deposing that defendant bank vide Airway Bill No.C09774713 dated 02.07.2012 had sent a communication dated 20.06.2012 to plaintiff which was received by appellant on 05.07.2012. Whereas, as already noted above, there is no rebuttal to DW1's said assertion from appellant's side either in the crossexamination of DW1 or in the examination of PW1.
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20. Here, it would be germane to note that burden of proof is often of a shifting character and may change from one party to the other if the facts are proved rendering case of one party more probable than that of other. Hence, in civil cases, onus of proof is never permanently fixed, but constantly fluctuate. The initial burden of proving a fact is upon the party who asserts it or wishes the Court to believe it and when he gives such evidence as will support a prima facie case, the onus shifts on to opponent to adduce rebutting evidence to meet the case made out by first party.
21. In his entire examination PW1 has nowhere deposed that said courier envelope delivered to him on 05.07.2012 was not containing letter dated 20.06.2012 or was instead containing promotional leaflets. The only deposition of PW1 in this regard is that in the month of July he had received an envelope from respondent containing business promotional pamphlets Ex.P3 & P4. Said deposition nowhere appears to relate to the communication received on 05.07.2012.
22. Had the appellant controverted the aforesaid testimony of DW1 by putting specific question or suggestion that vide said courier envelope received by him on 05.07.2014, he had not been sent letter dated 20.06.2012 but was instead sent promotional leaflets, the onus in that case would have shifted to respondent to prove that vide said courier delivery only letter dated 20.06.2012 was sent and not the promotional letter. In absence of any rebuttal from appellant's side, the onus upon respondent stands discharged. Considering said circumstances of the case, I find no merits in the arguments of appellant's counsel that by not bringing the bank record regarding dispatch of letter dated 20.06.2012 or by not RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 16 of 17 examining the concerned person or clerk who actually dispatched the letter through courier, respondent failed to prove the delivery of said letter upon the appellant.
23. Furthermore, as also observed by Ld. Trial Court that defendant had made reference of said letter dated 20.06.2012, even in their subsequent communication dated 13.07.2012, Ex.P2, despite that appellant did not bother to make any inquiry from respondent bank regarding said previous letter. Having regard to said conduct of appellant, I am of the view that Trial Court has correctly observed that: "It is also the admitted case of parties that vide letter Ex.P1 defendant had agreed not to levy cash deposit charges, but the agreement was subject to modifications. The agreement was modified through letter dated 20.06.2012. Modification was never objected by the plaintiff / PW1 either deliberately or negligently by not perusing the contents of Ex.P2. In either of the situation, he will have to suffer the consequences as his silence would amount to acceptance of modifications by implication."
24. Lastly, as regards the objection with regard to authority of DW1 to file Written Statement and to depose on behalf of respondent, the respondent has placed on record the copies of two PoA dated 01.02.2013 and 01.02.2014 as Ex.DW1/1 and Ex.DW1/3 respectively executed by the constituted attorney Sh Pranit Jhaveri in favour of witness Sh Jagdish Salwan. The originals of both were produced before learned Trial Court. Furthermore, in view of law laid down by Hon'ble High Court in Gurdev Singh Dhillon v T.S. Mahal & Anr : (1198) 75 DLT 393 where the power of attorney executed by the party fulfilled the requirements of Order 3 Rule 1 & 2 CPC and by the subsequent power of attorney ratified all the works, acts and deeds of the said power of attorney RCA No.23/2014 Rajesh Sachdeva v Citi Bank Page 17 of 17 holder, the objection as to authority of power of attorney holder to file suit was held to be not tenable. Hence, said objection taken by learned counsel for appellant is discarded as meritless. Even otherwise, no such objection regarding authority of DW1 was raised by appellant in the replication nor any such issue was pressed at the time of framing of issues.
25. Having regard to the aforementioned discussion, I do not find any illegality or infirmity in the findings of learned Trial Court in the impugned judgment. In my view, impugned judgment does not call for any interference. The appeal is hereby dismissed with no order as to cost. Decree Sheet be prepared.
26. Trial Court Record be remitted with copy of judgment and decree sheet henceforth.
Appeal file be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 25.04.2015.
RCA No.23/2014 Rajesh Sachdeva v Citi Bank