Delhi District Court
Head Office At Mangalore (South Kanara vs R. Arumugam on 31 July, 2015
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO. 86/13
Unique ID No. 02401C0226452013
MEMO OF PARTIES
Corporation Bank
LIC Card Centre, New Delhi, A body corporate constituted
under the Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1980 (Act No.3 of 1980) having its
Head Office at Mangalore (South Kanara, Karnataka State)
and having a branch at Corporation Bank, LIC Card Centre,
16/10, FF, Main Arya Samaj Road, Karol Bagh,New Delhi110005
...........Plaintiff
VERSUS
R. Arumugam
S/o. Rangasamy Chettiar
1/260, MGR Nagar, Devanurpudur, Udumalpet,
Tamil Nadu 642207
..........Defendant
Date of institution of the Suit: 07.05.2013
Date on which judgment was reserved: 20.07.2014
Date of pronouncement of Judgment: 31.07.2015
SUIT FOR RECOVERY OF Rs. 72,066.44/ (RUPEES SEVENTY TWO
THOUSAND SIXTY SIX AND FORTY FOUR PAISE ONLY) ALONG WITH
PENDENTELITE AND FUTURE INTEREST @ 2.5% PER MONTH
Suit No. 86/13 Corporation Bank Vs. R. Arumugam 1/8
EXPARTE JUDGMENT:
1.The plaintiff has filed the present suit for recovery of amount against the defendant.
2. The plaintiff avers that it is a Nationalized Bank and is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (Act No.3 of 1980) having its Head Office at Mangalore (South Kanara, Karnataka State) and having a branch office at Corporation Bank, LIC Card Centre, 16/10, FF, Main Arya Samaj Road, Karol Bagh, New Delhi110005.
3. It is averred that the LIC Card is issued by the LIC Cards Services Limited in association with Corporation Bank. The Corporation Bank maintains the LIC Card account and the LIC Card is marketed by the LIC Cards Services Limited.
4. It is contended that the defendant approached the plaintiff bank for issuing a LIC Credit Card and submitted duly filled and signed application along with self attested copies of identity and residence proof.
5. The plaintiff avers that it sanctioned a limit of Rs. 34,000/ (Rupees Thirty Four Thousand only) and issued a LIC Credit Card No. 4628460003664000 to defendant on 18.12.2009. Pursuant to the delivery of the LIC Credit Card to the defendant, plaintiff has been keeping and maintaining the records of the said Suit No. 86/13 Corporation Bank Vs. R. Arumugam 2/8 LIC Credit Card in the name of defendant in its ordinary and regular course of business. The plaintiff contends that the defendant availed and used the LIC Credit Card from time to time in purchasing various goods from the market, paying various bills, making cash payments etc. It is averred that the whole transaction of buying and purchasing by the defendant is a part and parcel of tripartite agreement entered into by the plaintiff with the VISA and Merchant Establishments.
6. It is further contended that as per the terms and conditions of the LIC Credit Card user guide, the defendant was liable to make the payments of all the outstandings of the credit card and other charges as applicable for the retention and utilization of said credit card. The defendant had been regularly billed by means of periodical monthly statements issued by the plaintiff.
7. The plaintiff avers that it repeatedly called upon the defendant to clear and liquidate the dues in respect of the said credit card however all the demands proved futile and the account of the defendant became highly irregular from almost the very beginning. The defendant failed to maintain the financial discipline and to deposit regular minimum amount in the Card account. The defendant's account was classified as a NonPerforming Asset on 03.08.2010.
8. Legal Notice dated 18.02.2013 was issued by the plaintiff through Registered Post on 23.02.2013 calling upon the defendant to pay sum of Rs.
Suit No. 86/13 Corporation Bank Vs. R. Arumugam 3/8 65,688.79/ which was due and outstanding. No response was received by the plaintiff to the Legal Notice dated 18.02.2013 nor did the defendant regularize the LIC Credit Card account.
10. The plaintiff states that as on 21.03.2013, an amount of Rs. 72,066.44/ (Rupees Seventy Two Thousand Sixty Six and Forty Four paise only) was due and payable by the defendant to the plaintiff with further interest at the rate of 2.5% p.m. alongwith finance charges, late payment, over limit and other charges thereon over and above the agreed rate of interest for the default in making payments which is also payable from the date of filing of the suit till the date of realization. The suit amount of Rs. 72,066.44/ (Rupees Seventy Two Thousand Sixty Six and Forty Four paise only) includes ledger outstanding (Principal) and finance charges, late payment, over limit, other charges and interest.
11. The suit was initially filed under the summary provisions of Order 37 CPC however vide statement of the counsel for the plaintiff dated 04.01.2014 to the effect that the suit may be treated as an ordinary suit, the present suit was converted to an ordinary suit. The defendant was served by the ordinary process on 07.09.2014 however he neither appeared nor filed his written statement and was proceeded against exparte vide order dated 19.11.2014.
12. In order to prove its case the plaintiff in exparte evidence has examined Sh. Ashwin Tirkey, Authorized Representative of the plaintiff bank. He has Suit No. 86/13 Corporation Bank Vs. R. Arumugam 4/8 relied upon the following documents which have been exhibited as Ex. PW1/1 to Ex.PW1/9 (OSR).
(i) Ex. PW1/1 (OSR) is the GPA in favour of PW1.
(ii) Ex.PW1/2 (OSR) is the agreement for issue of cobranded/ white label credit card.
(iii)Ex. PW1/3 (colly) is the application form for the credit card along with attested photocopies of identity and residence proof of the defendant.
(iv) Ex. PW1/4 is the Most Important Terms and Conditions document.
(v) Ex. PW1/5 is the screen shot providing details of the credit card account of the defendant.
(vi)Ex. PW1/6 (colly) is the recall notice dated 18.02.2013 along with postal receipt.
(vii)Ex.PW1/7 (colly) are the credit card statements of the defendant.
(viii)Ex.PW1/8 (OSR) is the white label/cobranded credit cardproduct features etc. document.
(ix) Ex.PW1/9 (OSR) is the Agreement executed between Opus Software Solutions Pvt. Ltd. and the plaintiff.
13. Thereafter exparte final arguments were advanced by counsel for the plaintiff. Heard and perused.
14. The plaintiff has proved the Agreement for Issue of CoBranded/White Label Credit Card executed between the plaintiff and LIC Cards Services Suit No. 86/13 Corporation Bank Vs. R. Arumugam 5/8 Limited as Ex. PW1/2 (OSR) and the LIC CardMost Important Terms & Conditions document as Ex. PW1/4. These two documents read in conjunction and especially clause F SubClause (2) of Ex. PW1/4 pertaining to recovery procedure in case of default, sufficiently establish the plaintiff's locus to file the present suit for recovery of amount. The Credit Card application form submitted by the defendant which has been exhibited along with the photocopies of the residence and identity proof as Ex. PW1/3 colly and the Credit Card statements Ex. PW1/7 (colly) which have gone completely uncontroverted duly prove that the defendant availed of the credit card services. Despite issuance of the demand notice which is accompanied with the postal receipt which have been exhibited as Ex. PW1/6 (colly), the defendant failed to make the outstanding payment qua the credit card in question or reply to the notice. The defendant further did not care to appear in court and file his written statement in defence which leads to an adverse inference against the defendant that he had no real defence to put forth.
15. It is clear from the testimony of the plaintiff's witness PW1 which has gone completely unrebutted that the defendant has indeed defaulted in making the payments in relation to the credit card in question. As per the credit card statements Ex.PW1/7 (colly) the defendant last made the cash payment of Rs. 5,000/ (Rupees Five Thousand only) on 06.08.2011 and carried out no further transactions nor did he make any further payments thereafter. Calculating the Suit No. 86/13 Corporation Bank Vs. R. Arumugam 6/8 limitation period from 06.08.2011 the present suit filed on 07.05.2013 is within limitation.
16. In an ex parte suit, where defendant does not file a written statement or does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition, hence plaintiff is required only to prove a prima facie case, which has been successfully done by the plaintiff in this case atleast so far as the claim relates to the principal/transaction amount which as mentioned in the demand notice forming part of Ex. PW1/6 colly is Rs. 30,700/ (Rupees Thirty Thousand Seven Hundred only). So far as the plaintiff has sought interest/service charges and penalties the counsel for plaintiff had argued that the interest had been calculated in terms of the document Ex. PW1/4. However, admittedly the defendant's account became a Non Performing Asset from 03.08.2010 and the plaintiff was unable to show any specific agreement with the defendant in relation to interest, penalties and charges to be charged on the defendant's account after the same became a Non Performing Asset. In view of the same, the interest being sought @ 2.5% per month and other charges like penalties etc. appear to be exorbitant and ends of justice would be met if the plaintiff is awarded simple interest @ 9% per annum on the decreetal amount from the date of filing of the suit till realization of the amount.
16. As regards the service tax amount which has been claimed by the plaintiff the same is a statutory liability owed to the Government and it was for Suit No. 86/13 Corporation Bank Vs. R. Arumugam 7/8 the defendant to appear and rebut the plaintiff's claim of entitlement to service tax charges or to establish that the service tax has not actually been paid by the plaintiff but defendant failed to do so therefore the plaintiff's claim for service tax charges must be accepted. As per the credit card statements Ex. PW1/7 (colly) the service tax charges come to Rs. 6,105.87/ (Rupees Six Thousand One Hundred Five and Eighty Seven paise only). Thus, the plaintiff is entitled to recovery of the principal amount of Rs. 30,700/ (Rupees Thirty Thousand Seven Hundred only) along with the service tax amount of Rs. 6,105.87/ (Rupees Six Thousand One Hundred Five and Eighty Seven paise only) i.e. total amount of Rs. 36,805.87/ (Rupees Thirty Six Thousand Eight Hundred Five and Eighty Seven paise only) along with interest.
17. Therefore the plaintiff's suit is decreed against the defendant for a sum of Rs. 36,805.87/ (Rupees Thirty Six Thousand Eight Hundred Five and Eighty Seven paise only) along with simple interest thereon @ 9% per annum from the date of filing of the suit till realization of the amount. Costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 31.07.2015 Civil Judge - 10 (Central)
31.07.2015/Delhi
Suit No. 86/13 Corporation Bank Vs. R. Arumugam 8/8
31.07.2015 Suit no. 86/13
Present: None.
Vide separate judgment of even date the plaintiff's suit is decreed against the defendant for a sum of Rs. 36,805.87/ (Rupees Thirty Six Thousand Eight Hundred Five and Eighty Seven paise only) along with simple interest thereon @ 9% per annum from the date of filing of the suit till realization of the amount. Costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
ANJANI MAHAJAN
Civil Judge 10 (Central)/THC
Delhi/31.07.2015
Suit No. 86/13 Corporation Bank Vs. R. Arumugam 9/8