Delhi District Court
Canara Bank vs Sh. Karan Singh on 30 September, 2015
Suit No.1025A/14
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.1205A/14
Unique Case ID No.02406C0382422014.
Canara Bank
[A body corporate constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act, 1970 with its head office
At Banglore, Karnataka.]
9, Community Centre,
Gulmohar Enclave,
Green Park,
New Delhi110049. ..........Plaintiff.
Versus
1. Sh. Karan Singh
S/o Late Sh. Hans Raj
R/o 165, Main Road Devli,
Near Raju Park Bus Stand
Delhi110062.
Also at:
Chaudhary Associates,
421, Sainik Farms,
Forest Land,
New Delhi.
2. Sh. Manmohan
S/o Late Sh. Shiv Lal,
R/o 165, Main Road Devli,
Near Raju Park Bus Stand
Delhi110062.
Also at:
Arun Dev Enterprises
A27,
Ashok Vihar, Sector5,
Canara Bank vs. Karan Singh & Ors. Page 1 of 19
Suit No.1025A/14
Gurgoan, Haryana. ........Defendants.
IN COUNTER CLAIM:
1. Sh. Karan Singh
S/o Late Sh. Hans Raj
R/o 165, Main Road Devli,
Near Raju Park Bus Stand
Delhi110062.
Also at:
Chaudhary Associates,
421, Sainik Farms,
Forest Land,
New Delhi.
2. Sh. Manmohan
S/o Late Sh. Shiv Lal,
R/o 165, Main Road Devli,
Near Raju Park Bus Stand
Delhi110062.
Also at:
Arun Dev Enterprises
A27,
Ashok Vihar, Sector5,
Gurgoan, Haryana. .......Counter Claimant.
Versus.
Canara Bank
[A body corporate constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act, 1970 with its head office
At Banglore, Karnataka.]
9, Community Centre,
Gulmohar Enclave,
Green Park,
New Delhi110049. ....Respondent/Plaintiff.
Canara Bank vs. Karan Singh & Ors. Page 2 of 19
Suit No.1025A/14
Date of institution :08.07.2011/01.12.2014
Date of reserving the judgment :17.09.2015.
Date of pronouncement :30.09.2015.
Decision :Dismissed.
Summary Suit for recovery of Rs. 1,55,526/ (One Lakh Fifty Five
Thousand Five Hundred & Twenty Six Rupees Only) alongwith the
interest from the date of filing of the suit till the date of the realization
under Order XXXVII of the Code of Civil Procedure, 1908.
Present : None.
JUDGMENT
The present suit has been filed by plaintiff bank which is a Body Corporate constituted under the Banking Companies Act, 1917. The present suit was filed by Sh. D. Raja Kumar who was authorized by the bank through General Power of Attorney to sign, verify and instituted the present suit. The suit is filed seeking recovery of Rs. 1,55,526/ (One Lakh Fifty Five Thousand Five Hundred Twenty Six Rupees Only) alongwith interest at the rate of 13% per annum from the date of filing of the suit till realization. Plaintiff's version as per the plaint.
2. Succinctly, it has been averred that defendant no.1 requested the plaintiff to grant credit facility of Rs. 4,00,000/ of purchasing Ford Fiesta under the Can Mobile Scheme. The application dated 13.01.2007 was filed. The loan was sanctioned and account bearing no.0350603000028 was opened and amount was disbursed to defendant no.1 on 16.1.2007. The agreement dated 16.01.2007 was executed by defendant no.1 wherein it was that minimum rate of interest shall be 11% per annum compounded quarterly and in case of Canara Bank vs. Karan Singh & Ors. Page 3 of 19 Suit No.1025A/14 default, the interest would become compounded with principal balance outstanding in the account of such balance and on such successive balances. The penal interest at overdue rate of 2% per annum above the rate of interest was also agreed. The letter of undertaking dated 16.01.2007 was also executed. Defendant no.2 stood the guarantor for defendant no.1 and guarantee agreement was also executed on 16.01.2007. It was agreed that the total liability ultimately enforceable against defendant no.2 shall not exceed the sum of Rs. 4,00,000/ with interest of minimum of 13% or at such rate as may specified by the plaintiff compounded quarterly from the date of demand by the plaintiff.
3. It was also averred that defendant no.1 had executed a letter dated 16.01.2007 wherein he authorized plaintiff bank to debit the sum of Rs. 8800/ from his OD/CA account bearing no.44817 with the plaintiff bank to credit his loan account till the closer of his loan amount. The loan was repayable with interest in 60 monthly installments of Rs. 8800/ each. Acknowledgment of debit and security was also executed by defendant no.1 for the amount of Rs. 2,17,938/ exclusive interest from 17.12.2009 at the rate 13% per annum compounded quarterly on 16.12.2009 admitting all the relevant documents, agreement, securities etc on 16.12.2009.
4. It is alleged that the defendant no.1 did not adhere to financial discipline and ultimately the loan account of defendant no.1 became non performing asset on 16.11.2010. Legal notices were issued but in vain. Hence, the present suit seeking the recovery under Order XXXVII CPC was filed.
5. It is pertinent to mention that vide order dated 02.12.2011, Ld. Predecessor had allowed the leave to defend and the suit was converted into the Canara Bank vs. Karan Singh & Ors. Page 4 of 19 Suit No.1025A/14 ordinary suit of recovery.
Defendant's version as per the written statement.
6. On notice, after the application seeking leave to defend was allowed, defendants filed the Written Statement stating that the suit was not maintainable. It was contended that the plaint has not been signed or verified by any authorized person as the resolution was not placed on record. It was submitted that the suit is hopelessly time barred as the loan was advanced on 16.01.2007 and the suit has been filed on 05.07.2011 that is after the expiry of three years.
7. On merits, it was submitted that one Mr. Wellington had approached the defendant no.1 for a loan stating that he had targets to meet and he mislead the defendant no.1in incurring the loan. It was also submitted that the terms and conditions of the loan were not disclosed to the defendant no.1 and his signatures were obtained on certain papers. It was also mentioned that the defendant no.1 was not even informed about the amount payable on monthly installments and the defendants are not aware about the contents of the loan application. It was also mentioned that the loan application mentioned two dates that is 15.01.2007 and 16.01.2007 and therefore, it was denied that the loan was incurred on 13.01.2007.
8. It was admitted that the defendant had taken loan of Rs. 4,00,000/ but the statement of account was contended to be wrong and frivolous. It was submitted that the plaintiff had already given the amount of Rs. 2,00,000/ in advance therefore, there was no occasion for charging penal interest from the defendant no.1. It was not denied that certain forms and documents were got signed from defendant no.1 but the contents of the documents were denied for Canara Bank vs. Karan Singh & Ors. Page 5 of 19 Suit No.1025A/14 want of knowledge. The guarantee of defendant no.2 was also admitted but again the terms and conditions of the guarantee agreement were denied for want of knowledge. The letter dated 16.01.2007 was admitted wherein defendant no.1 had authorized the bank to debit the amount of Rs. 8800/ from his account but again the contents of the letter were denied for want of knowledge. Acknowledgment of debt dated 17.12.2009 was denied.
9. It was further contended that the defendant no.1 had paid excessive amount than the installments due. It was submitted that defendant no. 1 had paid Rs. 10,000/ on 17.03.2007, Rs. 2,00,000/ on 10.05.2007, Rs. 9,000/ on 22.08.2008, Rs. 11,000/ on 10.11.2008, Rs. 10,000/ on 20.01.2009, Rs. 15,000/ on 20.03.2009 and Rs. 50,000/ on 03.02.2010. It was alleged that the defendant charged interest as well as penal interest despite that the EMIs were already paid in advance. The statement of account filed by the plaintiff was challenged. It was prayed that the suit be dismissed. It is pertinent to mention that the defendant had also filed the counter claim alongwith written statement however, that shall be discussed later in the judgment. However, in a nut shell, defendant no.1 sought a recovery of Rs. 1,00,000/ as compensation and damages from the plaintiff in the counter claim claiming that the plaintiff bank has harassed and defamed the defendant no.1.
Counter claim
10. The defendants have filed the counter claim with the written statement. It is submitted through the counter claim that the defendant no 1 was approached by the plaintiff bank for grant of a loan which was sanctioned. The defendant no 1 started paying the amounts of monthly installments and paid a lump sum of Rs. 2,00,000/ on 10.05.2007, which was payment in Canara Bank vs. Karan Singh & Ors. Page 6 of 19 Suit No.1025A/14 advance of about 25 monthly installments but the plaintiff bank kept on charging penal interest as if no amount was deposited. It is alleged that the statement of account maintained by the bank is false and incorrect. Fraud and irregularities are alleged against the bank.
11. It is submitted that the defendant no. 2 had stood as a guarantor in the loan transaction and defendant no 2 got furious with defendant no. 1 as the act of the plaintiff was defamatory and caused insult of the defendants. It is further mentioned that the defendants had to face irreparable losses and harassment as consequence to the allegedly false and baseless suit filed by the plaintiff. The defendants have claimed compensation to the tune of Rs. 1,00,000/ in the Counter Claim.
Reply/Written Statement to Counter Claim
12. In reply, the plaintiff filed the written statement to the counter claim denying the contents of the counter claim. It was though admitted that the defendant no. 1 had paid Rs. 2,00,000/ on 10.05.2007 and the plaintiff bank charged penal interest erroneously. It was mentioned that in 2007, due to software upgradation to core banking, some data in the system got corrupt and system automatically charged Rs. 9,083/ towards the penal interest in the account of the defendant no 1 during the period 28.09.200716.06.2009. it was contended that the error was not intentional but the plaintiff bank had re accredited Rs. 9,083/ on 15.12.2011 to the account of the defendant no. 1. Hence, it was claimed that the counter claim be dismissed. Identification of Issues.
13. Admission/denial of documents was not conducted. The parties explored alternate dispute resolution through process of mediation but no Canara Bank vs. Karan Singh & Ors. Page 7 of 19 Suit No.1025A/14 settlement could be arrived at. From the pleadings of the parties, Ld. Predecessor vide order dated 24.08.2012 framed following issues:
Issue no.1 Whether the plaint has been signed, verified and instituted by a duly authorized person?OPP Issue no.2 Whether the suit filed by the plaintiff is beyond the limitation? OPD Issue no.3 Whether the defendant is entitled to the decree of counter claim as prayed for?OPD.
Issue no.4 Whether the plaintiff is entitled to recover the sum claimed for in the plaint?OPP.
Issue no.5 Whether the plaintiff is entitled to the interest claim?if so, at what rate?OPP.
Issue no.6 Relief.
Evidence:
14. In order to establish the case, PW1, Sh. Bhaskara K, Manager for the plaintiff bank stepped into the witness box and tender his affidavit Ex. PW1/1. He placed reliance upon the following documents:
Sr. No. Exhibit/Mark Nature of Document
1. Ex. PW1/A (OSR) General Power of Attorney.
2. Mark A General Power of Attoreny (Mr. D. Raja
Kumar)
3. PW1/C Loan Application
4. Mark B Statement of Account from 16.01.2007
till 18.05.2011.
5. Ex. PW1/E Can. Mobile Agreement.
6. Ex. PW1/F Guarantee Agreement.
7. Ex. PW1/G Guarantee Covering Letter.
8. Ex. PW1/H Letter dated 16.01.2007
9. Ex PW1/I Acknowledgment of debt dated
16.12.2009
Canara Bank vs. Karan Singh & Ors. Page 8 of 19
Suit No.1025A/14
10. Ex PW1/J Legal notice dated 17.02.2011.
11. Ex PW1/K Legal notice dated 07.2.2011.
15. The witness was cross examined at length by Ld. counsel for defendant. He admitted that there was no resolution appointing him as authorized representative placed on record. He also admitted that Mr. Wellington was a employee of the bank. He admitting that defendant had never paid any EMIs whatsoever. He has deposed that the payment or Rs. 2,00,000/ was the payment of EMIs in advance. He has also deposed that penal interest was charged from the month of April, 2007 till January, 2009. He explained voluntarily that during the relevant time their software was migrated to core banking system and Rs. 9,083/ was charged in excess due to some system error which was reversed to the loan account by the defendant. It was also admitted that on 10.05.2007, the plaintiff had received Rs. 2,20,000/ from defendant no.1 and in month of June 2009, no amount was payable by defendant no.1. He admitted that the penal interest was charged in the month of June 2007, due to system error. He denied to rest of the suggestion put by Ld. counsel for defendant. The evidence on behalf of plaintiff was closed by the AR vide statement dated 05.12.2012.
16. It is pertinent to mention here that this matter was already decided by the Ld. Predecessor vide judgment in decree dated 30.09.2013. The plaintiff had preferred an appeal before the Ld. District and Session Judge, South who on the statement of the parties allowed the plaintiff bank to adduce additional evidence in accordance with law and the appeal was allowed setting aside the Judgment of Ld. Predecessor. By the same order, the Judgment in Civil Suit Canara Bank vs. Karan Singh & Ors. Page 9 of 19 Suit No.1025A/14 no. 412/11 (main suit) and counter claim no.152/2002 (counter claim) was set aside and were remanded back to this court hence, the plaintiff got the opportunity to the adduce additional evidence in this matter.
17. In compliance of the order, PW2, Mr. Devender Singh, Senior Manager, appeared in the witness box and through his affidavit Ex. PW2/A deposed in the court. He placed reliance upon the following documents:
Sr. No. Exhibit/Mark Nature of Document 1. PW2/1 (OSR) General Power of Attorney
2. PW2/2A (Colly) Certified copy of statement of account alongwith certificate (for a period from 16.01.2007 till 17.10.2010.
18. The witness was also cross examined at length. He deposed that the statement filed before the Ld. Appellate Court and before this court was same in all respects. He also denied the suggestion that the statements were different he mentioned that the penal interest with effect from 01.11.2010 which was computed on simple basis as their statement was showing penal interest as compounded in mirror account. He stated that the account filed included entry up to 21.11.2015. Thereafter, the plaintiff evidence was again closed by the statement of Ld. counsel for plaintiff.
19. In the defendants' evidence, defendant no.1 stepped into the witness box and deposed vide his affidavit Ex. DW1/1. The witness did not rely upon any document. In his cross examination Ld. counsel for plaintiff, only asked about his educational qualifications to which he stated that he was class VIII fail and his profession was also asked about which he submitted that he has property and finance work. He denied to the suggestion that he was Canara Bank vs. Karan Singh & Ors. Page 10 of 19 Suit No.1025A/14 deposing falsely. The evidence of the defendant was closed by the statement of Ld. counsel for defendant on 03.05.2013.
20. This is the entire evidence produced by both the parties in present suit.
Arguments.
21. Ld. counsel for plaintiff argued that the rate of interest in this case was 11% per annum and by mistake in the statement filed before this court that is Ex. PW2/2A, the bank had calculated the interest at the rate 11.50% per annum but it should have been 11% per annum. He also argued that the documents are admitted by the defendant and the plaintiff bank is a public sector undertaking who had sanctioned the loan and therefore the statement of account filed earlier in the court should be taken into consideration. It was also submitted that there is no role of any employee of the plaintiff bank as the statement of account is machine generated and inadvertently by some mistake the interest was fed as 11.50% per annum but should have been 11% per annum. He prayed that rest of the documents have been duly established hence, the present suit be decreed.
22. On the other hand, defendants submitted that the appeal was allowed and the matter was remanded back as the plaintiff had failed to file the certificate with statement of account however, even then, wrong statement was filed in additional evidence in this court. He also mentioned that the entries dated 16.2.2010 are different in the statement of account filed earlier and the fresh statement of account. He also submitted that the penal interest is levied wrongly and also accepted to be mentioned in the statement. Therefore, it was argued that the statements of account are incorrect and fabricated. It was Canara Bank vs. Karan Singh & Ors. Page 11 of 19 Suit No.1025A/14 argued that the plaintiff has not been able to establish the statement of account and therefore the suit should be dismissed as there is no liability of the defendants towards the plaintiff.
23. In rebuttal, it was submitted that the statement of account is correct but it was just merely an inadvertent mistake as the interest was calculated at the rate 11.50% but should have been 11%. It was also argued that the mistake occurred as according to the RBI guidelines, entire system was upgraded and was linked to Core Banking System.
24. I have heard the rival contentions advanced by counsel for the plaintiff and the defendant in the main suit as well as the counter claim. I have also perused the entire case record inclusive of pleadings, testimony of witnesses and documentary evidence adduced by the parties. My issues was findings after weighing the rival contentions and appreciating the evidence are:
Issue no.1 Whether the plaint has been signed, verified and instituted by a duly authorized person?
25. The onus to prove this issue was upon the plaintiff as the plaintiff had to show that the plaint has been signed, verified and instituted by duly authorized person. It can be observed that Mr. B. Raja Kumar that is the manager of plaintiff had filed the present suit. The General Power of Attorney of Mr. B. Raja Kumar was also placed on record. It can be noted as he was later transferred to different branch, the power of attorney was not filed in original however, his General Power of Attorney though in photocopy had been placed on record. It was also marked as Mark A. This document was relied upon by the authorized representative for the plaintiff who had appeared in the witness box which shows that the plaintiff has ratified the acts of Mr. B. Raja Canara Bank vs. Karan Singh & Ors. Page 12 of 19 Suit No.1025A/14 Kumar to file the present plaint. The General Power of Attorney has not been challenged by the defendant. However, it can be observed that the at the relevant time he was appointed as the manager of the plaintiff bank and therefore, his authority to verify and institute the present suit is per se not doubtful.
26. In light of the above discussion, this court is of the considered opinion that the plaint has been signed, verified and instituted by the authorized person. This issue is decided in favour of the plaintiff. Issue no.2.
Whether the suit filed by the plaintiff is beyond the limitation?
27. The onus to prove this issue was upon the defendant. It has been contested by way of written statement that the present suit is barred by law of limitation. It was submitted that the loan transaction was entered on 16.01.2007 and the suit has been filed on 05.07.2011 therefore, the suit is time barred as period of three years had already elapsed.
28. This contention does not inspire confidence of this court as even though loan was sanctioned on 16.01.2007 but it was repayable in sixteen monthly installments. The cause of action would have occurred on the date of default and therefore, the same shall be considered after 15.07.2010 which was the date when the last payment was received. The suit has been instituted on 05.07.2011 that is within one year from the date of reckoning of cause of action hence, the suit is well within the limitation. This issue is decided in favour of the plaintiff.
Issue no. 4.
Whether the plaintiff is entitled to recover the sum claimed for in the plaint?
Canara Bank vs. Karan Singh & Ors. Page 13 of 19 Suit No.1025A/14
29. The onus to prove this issue was upon the plaintiff. The entire case of the plaintiff is based upon the entitlement to recover the amount of Rs. 1,55,526/ from the defendants.
30. In order to establish the entitlement, the plaintiff bank through his authorized representative tendered various documents such as Ex. PW1/C which was the loan application. It is not denied by the defendant that the loan was obtained though he states that the contents of the documents are denied and signatures are admitted. No specific evidence was led by the defendant to show that the signatures were obtained under some misrepresentation, duress, fraud, mistake, coercion or undue influence. Hence, this document is considered to be admitted. The plaintiff has also relied upon the Can Mobile Agreement dated 16.01.2007, Ex. PW1/E and Guarantee Agreement, Ex. PW1/F. The applying the same reasoning, these documents are also admitted documents. More so when these are standard form documents which has been signed by defendant no.1 and 2.
31. On perusal of loan agreement it can be observed that the amount sanctioned was Rs. 4,00,000/ and it was repayable in monthly installments of Rs. 8,800/ commencing from February 2007. The other documents such as Ex. PW1/G, Ex. PW1/H and Ex. PW1/I further show that the loan was taken by the defendant no.1 for his vehicle and all the documents were duly executed by the bank.
32. The question that remains to be seen is about the liability, if any, of the defendants. To establish the same, the plaintiff has relied upon statement of account which was earlier marked as Mark B. The document was marked as Canara Bank vs. Karan Singh & Ors. Page 14 of 19 Suit No.1025A/14 the plaintiff for reasons best known to it, did not file the certificate under Bankers Books Evidence Act. Hence, prior to remanding the matter back, the plaintiff was not able to establish the liability of the defendants.
33. By order of Ld. District and Sessions Judge (South) dated 12.09.2014 the judgment of Ld. Predecessor was set aside and the plaintiff was allowed to file additional evidence as per law. PW2, Mr. Devender Singh, Senior Manager, thereafter stepped into the witness box on 24.07.2015 to tender his additional affidavit and to produce Ex. PW2/2A (Colly) which was the certified copy of the statement. It can be observed that by the additional evidence, the witness mentioned that the defendants are liable to pay the sum of Rs. 2,36,235/ alongwith pendente lite and future interest at the rate 13.5% per annum with costs.
34. On perusal of the statement of account that is Ex. PW2/2A (Colly) it can be observed that statement of account opens on 16.01.2007 and closed on 17.10.2010 showing the liability of Rs. 2,37,952/. The penal interest at the rate 2% is charged for delayed payments and the rate of interest is 11.50%. As per the arguments of Ld. counsel for plaintiff, the rate of interest was 11% and not 11.50%. Therefore, the statement of account filed as Ex. PW2/2A (Colly) is not correct as the rate of interest has been calculated incorrectly which would definitely rendered the entire statement of account incorrect. It is admission Ld. counsel for plaintiff in the arguments that the rate of interest calculated for this period as flawed due to mistake on the part of plaintiff themselves.
35. It is pertinent to mention that by the order of Ld. District and Canara Bank vs. Karan Singh & Ors. Page 15 of 19 Suit No.1025A/14 Session Judge, the plaintiff was permitted to place on record the certificate for the statement of account filed as per rules. The plaintiff bank had filed the certificate which states as follows:
"Certified that the above entries are true and correct reproduction of the original record in respect of the Statement of Account of Karan Singh which is kept in Computer fed Data and the same is still kept by the Bank in its ordinary and regular course of banking business. This statement of A/c is in addition to the statement of A/c filed previously as Exh. PW 2/2. The entries show upto date amount recoverable from the defendants."
36. The provision of law applicable on the certificate is provided under Section 2A of Banker's Book Evidence Act, 1891:
2A. Conditions in the printout. A printout of entry or a copy of printout referred to in subsection (8) of section 2 shall be accompanied by the following, namely:
(a) A certificate to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and
(b) A certificate by a person incharge of computer system containing a brief description of the computer system and the particulars of (A) the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorised persons;
(B) the safeguards adopted to prevent and detect unauthorised change of data;
(C) the safeguards available to retrieve data that is lost due to systemic failure or any other reasons;
(D) the manner in which data is transferred from the system to removable media like floppies, discs, tapes or other electro Canara Bank vs. Karan Singh & Ors. Page 16 of 19 Suit No.1025A/14 magnetic data storage devices;
(E) the mode of verification in order to ensure that data has been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such storage devices;
(H) the safeguards to prevent and detect any tampering with the system; and (I) any other factor which will vouch for the integrity and accuracy of the system.
(c) a further certificate from the person incharge of the computer system to the effect that to the best of his knowledge and belief, such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question represents correctly, or is appropriately derived from, the relevant data.
37. The certificate filed by the plaintiff does not comply with the above requirements. Therefore, per se on the face of it, the certificate has not been filed as per the rules applicable. Consequently, not much reliance can be placed upon the certificate filed. However, even if the technicalities attached with the certificate are ignored, the statement filed by the plaintiff subsequently has been admitted to be incorrect due to wrong calculation of the interest. It was prayed by the Ld. Counsel for the plaintiff at the time of the arguments that the statement filed with plaint that is Mark B be considered. Now, as per Mark B, the statement of account shows that the penal interest has been charged from the defendant no. 1 despite payment of EMIs in advance. There is no entry in this statement showing that the amount was reaccredited into the account of the defendant no. 1. Further the Statement Ex. PW2/2A is Canara Bank vs. Karan Singh & Ors. Page 17 of 19 Suit No.1025A/14 admittedly calculated at the rate of interest of 11.50% but the entries of this statement and the statement Mark B are identical till entry dated 17.10.2010. This implies that even in Mark B, the interest was calculated at the rate of 11.50% otherwise, how is it possible that the entries coincide. This shows that the statement filed earlier that is Mark B was also not free from errors. This fortifies that the statements of account filed by the plaintiff that is Mark B and Ex PW 2/2A are both erroneous.
38. The liability of the defendants cannot be fastened upon an erroneous statement of account. Despite knowledge of the errors that have crept in the statement, the plaintiff had not taken any steps to file the correct statement of account during the pendency of suit. Even when the suit and the counter claim were remanded back, apparently erroneous statement was filed. The plaintiff is a nationalized bank and repository of the money for many, it is not expected from a bank to file erroneous statement of account. Moreover, the statements are printouts but have not been duly certified in compliance of Section 2A, Banker's Book Evidence Act, 1891.
39. The plaintiff has not been able to prove the statement of account and hence, not able to establish the liability of the defendants to pay the amount claimed. There is no other way that this court can fasten the liability of the defendants. This issue is therefore, decided against the plaintiff. Issue no.5.
Whether the plaintiff is entitled to the interest claim? If so, at what rate?
40. The onus to prove this issue was also upon the plaintiff. It has already been shown in the previous issue that that plaintiff is highly flawed in calculation of the interest upon the amount payable. The plaintiff is seeking Canara Bank vs. Karan Singh & Ors. Page 18 of 19 Suit No.1025A/14 interest at the rate of 13% per annum from the date of filing of the suit till realization.
41. As the plaintiff has been unable to establish the entitlement of recovery of the principal amount sought, the question of grant of interest does not arise. The findings of issue no. 4 be read as an part and parcel of this issue as well. This issue is therefore decided against the plaintiff. Counter Claim Issue no.3.
Whether the defendant is entitled to the decree of counter claim as prayed for?
42. The onus to prove this issue was upon the counter claimant. The counter claimant has sought compensation for defamation from the plaintiff for Rs. 1,00,000/. No specific evidence to show any defamation was led by the counter claimant. Any occasion wherein he was defamed was also not listed. Any loss caused to the counter claim was also not shown. Hence, in dearth of evidence, this issue is decided against the counter claim/defendant. Relief.
43. Consequent to the above findings, this court is of the considered opinion that the plaintiff has not been able to establish the liability of the defendants and hence the suit is hereby dismissed. The counter claim is also accordingly dismissed.
44. No order as to costs. Decree sheet be drawn accordingly. The file be consigned to record room after due indexing, pagination and completion. Announced in the open court on 30th September 2015. (TANVI KHURANA) The judgment contains 19 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 30.09.2015. Canara Bank vs. Karan Singh & Ors. Page 19 of 19