Delhi District Court
Corporation Bank vs Sh. Balne Rameshbabu on 28 September, 2015
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01
( WEST), TIS HAZARI COURTS, DELHI..
Unique ID No. : 02401C0207502014
CS N0. 165/2014
Date of Institution : 11.03.2014
Date of reservation of judgment : 08.09.2015
Date of pronouncement of Judgment : 28.09.2015
Corporation Bank
LIC Card Centre, New Delhi
having its Head Office at Mangalore
( South Kanara, Karnataka State)
and having a branch at Corporation Bank
LIC Card Dentre
13 & 14, First Floor, Old Market
Tilak Nagar, New Delhi18.
....................Plaintiff
Vs.
Sh. Balne Rameshbabu
S/o Sh. Komuraiah Balne
Village Siddapuram, MandalHassanparthy
Warangal506006 ( Andhra Pradesh)
Office at :
WarangalII Pochamma Midan
Warangal506006 ( Andhra Pradesh)
..............Defendant
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts are that this is a suit filed by plaintiff bank through its Attorney Smt. Anuja Mehta, Manager of plaintiff bank, against the defendant for recovery of Rs.38,328.34/ which amount has accumulated on account of credit card used by the defendant and consequent C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 1/11 interest, service tax, late payment fee and other charges levelled on the outstanding amount, by the plaintiff.
2. As per plaintiff bank, the defendant had approached it for issue of one LIC credit card and a duly filled form was submitted by him in this regard alongwith attested copies of his PAN Card, Voter ID Card, Driving Licence, Bank Passbook Form No. 16 A etc. After considering the said request, the plaintiff bank issued LIC credit card bearing no. 4628460012417002 to the defendant with a fixed sanctioned limit of Rs.35,000/ on 19.08.2010. The defendant used the said credit card for making payments of premium of his two insurance policies on 07.12.2010 and 31.12.2010. The amount of the above premium were paid by the plaintiff bank on behalf of defendant and the credit card account of the defendant was debited with the said amount.
3. It is further stated that by making use of LIC credit card, the defendant had duly accepted the terms and conditions of LIC credit card and he had also agreed to reimburse/remit the outstanding amount as reflected from his account statement/bills, within fifteen days of the receipt of said statement. The account statements were prepared and duly dispatched to defendant on 21st day of each month. The defendant did not dispute the credit card account statement hence, he was liable to pay the entire amount as demanded by the plaintiff bank.
4. It is further stated that the defendant failed to make payments of the outstanding amount for the use of credit card, despite receiving statements/ bills sent by plaintiff bank. Accordingly, the plaintiff bank issued a recall notice dt.18.11.2013 to the defendant calling upon him to pay the amount of Rs.38,328.34/ which was due and outstanding against his account as in October, 2013. However, no reply was sent by the defendant to the said notice nor amount was paid. Hence this suit has been preferred by plaintiff before this court for recovery of Rs. 38,328.34/ which amount includes Rs. 16,991.10/ as principal amount and Rs..21,337.24/ as C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 2/11 interest, finance charges, late payment and overlimit charges, etc.
5. Though the suit was initially filed as a suit U/o 37 CPC, however vide order dated 06.05.2014, it was converted into ordinary suit of recovery. The defendant was duly served on 17.06.2014. but he did not appear before the court nor filed his written statement. Hence vide Order dated 06.09.2014, he was proceeded exparte.
6. During exparte PE, the plaintiff bank examined only one witness, who is Sh. Ashwin Tirkey, the Manager of the plaintiff bank. In his testimony, the following documents were exhibited: " The affidavit of PW1 is Ex. PW 1/A. The other documents relied by witness are as follows : Ex. PW1/1 which is an application for credit card. Self attested copies of PAN Card, voter Icard, Driving license , bank pass book and form no. 16 A of defendant are marked as Mark A to E, Ex.PW1/2 to PW1/36 are the statements/Bills from 21.12.2010 to 21.10.2013 ( Ex. PW 1/37 and Ex. PW 1/38 as mentioned in the affidavit are struck off as no such documents are filed). Ex.PW1/39 is the recall notice dated 18.11.2013 and Ex.PW 1/40 is the postal receipt dated 19.11.2013 of the recall notice. Ex. PW1/41 is the screen shot and Ex. PW1/42 is the certificate as per bankers books evidence Act. Ex. PW1/43 is the most important terms and conditions. Ex.PW1/44 is the agreement dated 30.03.2009. Ex.PW1/45 is the copy of agreement entered into between the plaintiff Opus Software Solutions Pvt. Ltd. Ex. PW1/46 is the copy of power of attorney of the chief manager who signed and verified the plaint. Copy of power of attorney of PW1 is now Ex.PW 1/47."
Thereafter exparte PE was closed and final arguments were addressed by the Ld. counsel of plaintiff.
7. I have heard submissions made on behalf of plaintiff and perused the record. At the outset, the suit appears to be not maintainable in this court being barred by territorial C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 3/11 jurisdiction. The territorial jurisdiction of civil court is determined as per Sec 20 of CPC which reads as follows: Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Now as far as territorial jurisdiction is concerned, the judgment of the Hon'ble Supreme Court in ABC Laminart Pvt. Ltd. vs A.P. Agencies, Salem AIR 1989 SC 1239 is highly relevant in the facts of the present case. It has been held by Hon'ble Apex Court in the said judgment and I quote: "(13) Under Section 20(c) of the Code of Civil Procedure subject to the limitation stated therefore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier section 7 of Act 7 of 1888 added Explanation III as under:
Explanation III In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 4/11 (1) the place where the contract was made (2) the place where the contract was to be performed or performance thereof completed (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
(14) The above Explanation III has now been omitted but nevertheless it may serve a guide.
There must be a connecting factor.
(15) In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the Law of Contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 5/11 where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors."
Hence as per the ratio of this landmark judgment of the Hon'ble Supreme Court, in contractual matters, cause of action arises at any of the places where (a) a contract is made or
(b) where acceptance of a contract is communicated or (c) where a contract is performed or is to be performed or (d) where money under the contract is either payable or paid; or (e) where repudiation of a contract is received.
8. Coming to the facts of the case, perusal of the Application form Ex. PW1/1 shows that it has been filled up by the defendant in Warangal Andhra Pradesh. i.e. outside Delhi. So, the defendant did not come to Delhi for filling and submitting the said application form. The form was sent to Delhi for processing where the same was considered and allowed in the absence of defendant. So offer and acceptance of contract were effected at different places. In these circumstances, as per above judgment of Hon'ble Supreme Court, jurisdiction will be of that place where the acceptance of contract is communicated. In the instant case, the acceptance of contract i.e. sanction of LIC credit card was communicated to defendant at his native place at Warangal, Andhra Pradesh where he resides, which is beyond jurisdiction of Delhi court.
9. As far as the place where the contract is to be performed is concerned, the defendant was at liberty to use the credit card at any place and its use was not confined to the native place of defendant. However the plaintiff bank has filed no document to suggest that the credit card was ever used in Delhi, by the defendant. Hence there is no jurisdiction of Delhi Court even as per this parameter.
10. The next place which can be treated as the place where cause of action arose is the place where the money under the contract, is either payable or paid. Perusal of statement of C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 6/11 account filed by the plaintiff bank shows that all payments which have been made by the defendant, are in cash. As per subclause no.4 (b) of clause 'D' of MITC (most important terms and conditions) Ex. PW1/43, a credit card holder could make payment of amount due on credit card, by paying in cash in any branch of Corporation Bank in India. The plaint merely states that the payment were to be received in Karol Bagh Branch in the credit card account of defendant and later on at Tilak Nagar Branch of plaintiff bank, without specifying the place where cash payment was actually deposited by the defendant.
11. In the modern age of technology, all the accounts are maintained in digital form and there is no physical transfer of funds as may have happened in older days. An account maintained in digital form does not have any physical location and is server based. Anyone can access an account maintained in digital form from any part of the world and can also make transactions through the same. The processing of application form and maintenance of account by the plaintiff bank at a particular place, is its own internal affair with which the defendant is not at all concerned. In such circumstances, the place from where account is being operated by defendant, or the place from where the transaction is made or the payment is received, would be the place where the cause of action or its part thereof arises. This again rules out jurisdiction of Delhi Court.
12. As per the last requirement, the cause of action also arises at the place where the repudiation of contract is received. In the instant case, the recall notice has been served by the plaintiff bank upon the defendant, at his native address which is again beyond the jurisdiction of Delhi Court.
13. The plaintiff bank has instituted the present suit solely on the ground that it is maintaining the defendant's account at Delhi. In the application form filled by the defendant, there is no mention of either Karol Bagh Branch or Tilak Nagar branch of plaintiff bank.
C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 7/11 Further merely maintenance of account at a particular place, by either of the parties to a contract, cannot confer jurisdiction upon the court within whose jurisdiction, such account is being maintained. Maintenance of account has nothing to do with institution and performance of contract.
14. The plaintiff bank ought to have instituted the present suit, where the defendant resided/worked for gain or where the cause of action or any part thereof, arose. In view of above observations and findings, in my considered opinion, no cause of action has arisen in Delhi and the territorial jurisdiction does not lie with this court.
15. However, even on merits, I do not find the case of plaintiff to be proved as per law. The plaintiff has examined only one witness in support of its case i.e. PW1 Ashwin Tirkey, the Manager of the plaintiff bank. He is also the Power of Attorney Holder of the plaintiff bank. The witness has got all the relevant documents pertaining to the credit card's sanction, use, statements, etc., exhibited in his testimony. However from Affidavit Ex. PW1/A and other documents, it is apparent that the defendant did not approach the plaintiff bank for credit card in his presence or that the credit card was sanctioned in his presence. None of the documents bear his signatures. He can neither identify the signatures of defendant nor can he identify the defendant. Infact PW1 has only deposed as per the documents of bank and is not personally aware of the above facts as his status is akin to that of a complete stranger except that he is an employee of plaintiff bank. As far as this case is concerned, he is merely a person who has produced the documents and is not a competent witness who can prove those documents.
The Delhi High Court in Vinay Jude Dias Versus Ms. Renajeet Kaur CM(M) 1030/2008 decided on19.09.2008 held that :
"an attorney is not an incompetent witness. He can appear in the Court and depose in the Court C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 8/11 as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts, which are within the special knowledge of principal and are not in the knowledge of attorney can only be deposed by the principal."
The Hon'ble High Court was relying on a judgment of Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. AIR 2005 SC 439. In this case, the Hon'ble Supreme Court while dealing with the competency of Power of Attorney holder to depose as a witness, has held that :
"In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the powerofattorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal is entitled to be crossexamined."
16. Under these circumstances, the witness examined by the plaintiff, is of no help to him. The plaintiff ought to have examined the person who was actively involved in the sanction of credit card, monitoring and preparation of account statements, etc. The knowledge of PW1 is merely hearsay and it cannot be relied.
C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 9/11
17. The suit is also bad for nonjoinder of necessary parties. It is pertinent to mention that the averment made in the plaint that defendant had approached the plaintiff bank for issuance of LIC credit card, is incorrect as the application form through which credit card was allegedly applied by the defendant, had been issued by LIC Card Services Ltd. and not by the plaintiff bank and was signed by defendant in Andhra Pradesh. Infact there is no privity of contract between the plaintiff and defendant. The contract of plaintiff bank was with LIC Cards Services Ltd., which in turn had entered into contract with the defendant for issuance of credit card. Hence the said LIC Card Services Ltd. was a necessary party in the present suit but has not been made a party for reasons best known to the plaintiff.
18. Moreover as per the plaint, the liability of defendant to pay the outstanding amount of LIC credit card was dependent upon receipt of statements/bills generated in this regard. No proof has been filed by the plaintiff as to when and in what mode and manner, the statements/bills were dispatched/intimated to the defendant. The plaintiff ought to have produced evidence in this regard but has failed to do so.
19. Furthermore, perusal of Ex. PW1/2 to Ex.PW1/36 and Ex.PW1/41 shows that the same are computer generated documents. The witness PW1 has also filed a Certificate under Bankers Book Evidence Act which is Ex.PW1/42. However this document is neither in confirmity with the provisions of Sec 2A of the Bankers Book Evidence Act nor is as per the directions given by Hon'ble Supreme Court in the landmark case of Anvar P.V. v. P.K. Basheer, Civil Appeal No. 4226 of 2012, decided on 18.09.2014, pertaining to admissibilty of electronic evidence. Further the Certificate has not been proved by the person who has signed the same or by any person who can identify the signature of the said signatory, in case the signatory was not available. There is no recital as to who was having the control and supervision of the computers installed at the plaintiff bank. The plaintiff was under obligation C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 10/11 to properly prove the above document and hence the person who had issued the certificate, should have also been examined. In such circumstances, document Ex.PW1/42 cannot be considered to be proved and accordingly, the other computer generated documents cannot be relied.
The above observations and findings makes it apparant that the plaintiff has been unable to prove its case because of the infirmities as noted above. Accordingly, the suit stands dismissed. No order as to Costs.
Decree Sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court ( A.K. Agrawal) today 28.09.2015 Civil Judge01 (West)/Delhi C.S No. 165/14 Corporation Bank vs Balne Rameshbabu 11/11