Delhi District Court
Market vs Sh. Vivek Sharma on 27 April, 2016
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IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.300/14
Unique Case ID No 02401C0355012014
Corporation Bank
LIC Card Centre, New Delhi, A body corporate constituted under the Banking
Companies (Acquisition and Transfer of Undertakings) Act 1980 (Act 3 of 1980)
having its Head Office at Mangalore, South Kanara, Karnataka State) and having
a branch at Corporation Bank, LIC Card Centre, 13 & 14, First Floor, Old
Market, Tilak Nagar, New Delhi 110018.
........................PLAINTIFF
VERSUS
Sh. Vivek Sharma
S/o Sh. Satya Prakash Sharma,
R/o 113, SectorI, Type3, Sadiq Nagar,
New Delhi 110049
....................DEFENDANT
Suit filed on - 28/07/2014
Judgment Reserved on - 27/04/2016
Date of decision - 27/04/2016
SUIT FOR RECOVERY OF RS.1,29,149.44Paise (Rupees One Lakh Twenty
Nine Thousand One Hundred Forty Nine And Paise Forty Four Only)
ALONGWITH PENDENTELITE AND FUTURE INTEREST @ 2.50%
PER MONTH
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EXPARTE JUDGMENT:
By this exparte judgment I shall dispose off a suit for recovery of
Rs.1,29,149.44Paise filed by the plaintiff against the defendant. It is pertinent to
mention here that initially the suit was filed U/O 37 CPC, but the same was
converted into an ordinary suit vide order dt.30/07/14 and thereafter summons for
settlement of issues were issued against the defendant.
1.The facts in brief relevant for the judgment as per plaint are that the plaintiff is a corporate body constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. That Mrs. Anuja Mehta, Manager/Constituted Attorney/Principal Officer of the plaintiff bank is duly authorized and empowered to institute and sign the present suit, verify and affirm all the pleadings, affidavits and vakalatnama, etc. on behalf of plaintiff bank.
It is further the case of the the plaintiff that they issue LIC Card in association with the LIC Cards Services Limited and keep record of the same and maintain the same and the LIC Card is marketed by the LIC Cards Services Limited.
It is further the case of the plaintiff that the defendant approached them for issuing a LIC Credit Card and submitted a duly filled and signed application alongwith relevant documents. It is further averred that considering the application of the defendant, a LIC Credit Card No.4628460011717006 was issued to the defendant of which plaintiff is keeping and maintaining the record in regular course of business.
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It is further the case of the plaintiff that the defendant accepted the terms and conditions and used the said LIC Credit Card for purchasing goods/things/services from different stores/shops/services and also withdrew cash from ATM by using the said Card. It is further averred by the plaintiff that in lieu of use of the said Card the defendant was issued with monthly statements/bills on regular basis to which defendant did not raise any dispute and was liable to pay the entire amount demanded by the plaintiff through the said statements/bills.
It is further the case of the plaintiff that it repeatedly called upon the defendant to clear and liquidate the dues with respect to the said LIC Credit Card but the defendant failed to maintain the financial discipline and to deposit regular minimum amount in the Card account. That the plaintiff issued a recall notice dt. 25/11/13 thereby calling upon the defendant to pay the outstanding amount of Rs. 1,29,149.44Paise but despite the receipt of the notice the defendant failed to pay any heed to the same and also failed the clear the dues.
It is further the case of the plaintiff that as on 21/11/13 a sum of Rs. 1,29,149.44Paise was found due and payable by the defendant to the plaintiff alongwith interest @ 2.50% per month. Hence, the present suit has been filed by the plaintiff for recovery of Rs.1,29,149.44Paise alongwith interest. Pleadings of Defendant :
2. It is noteworthy that WS was filed from the side of the defendant in which the preliminary objections were taken like that the plaintiff has not come before the Honb'le Court with clean hands. That the defendant has already Suit No.300/14 Page3/8 4 returned the entire amount to the plaintiff. That the suit is barred by period of limitation and liable to be dismissed on the point of limitation. The suit filed by the plaintiff does not disclose any cause of action in favour of the plaintiff and as such the suit is liable to be rejected U/O 7 R.11 CPC. That this Hon'ble Court has no jurisdiction to grant any relief in the shape of recovery.
In reply on merits, the defendant has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit be dismissed with costs.
Issues :
3. From the pleadings of the parties the following issues were framed on 09/05/2014 :
1. Whether the suit is barred by period of limitation? OPD
2. Whether there is no cause of action in favour of the plaintiff to file the present suit as the entire payment has been made by the defendant? OPD
3. Whether the plaintiff is entitled for the money decree as prayed for alongwith interest, if yes, then at what rate and for which period? OPP
4. Relief.
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Plaintiff's evidence :
4. In the evidence in order to prove its case the plaintiff got examined Sh. Ashwin Tirkey, Manager of the plaintiff bank as PW1 who reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under : Ext. PW1/1 is the application of the defendant for LIC Credit Card. Mark A to C are the photocopies of PAN Card, Driving License and Pay Slip filed alongwith the application. The Credit Card statements/bills issued by the plaintiff from 21/09/10 to 21/12/13 are exhibited as Ext. PW1/2 to PW1/41. The copy of legal demand notice dt.18/11/13 is Ext. PW1/42 and its speed receipt is Ext. PW1/43. The computer generated card holder's details/screen shot is Ext. PW1/44. The certificate under Banker's Books of Evidence Act is Ext. PW1/45. Ext. PW1/46 is the copy of terms and conditions (MITC). The agreement dt.30/03/09 between the plaintiff and LICCSL is Ext. PW1/47. The agreement between the plaintiff and Opus Software Solutions Pvt. Ltd. are Ext. PW1/48. The copy of power of attorney in favour of Ms. Anuja Mehta is Ext. PW1/49.
It is a matter of record that the defendant stopped appearing in the present suit after framing of issues and, therefore he was proceeded with exparte vide order dt.14/09/15.
5. Final arguments have been heard. Record has been carefully perused. Now, I shall give my issuewise findings which are as under : Issue no.3 shall be dealt first.
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6. ISSUE NO.3 Whether the plaintiff is entitled for the money
decree as prayed for alongwith interest, if yes, then at what rate and for which period? OPP The onus to prove this issue was upon the plaintiff.
The testimony of PW1 remains unchallenged and unrebutted and I find no reason to disbelieve the same. The documents have been duly proved as per law. The plaintiff has proved the service of legal notice and as the same was not replied, an adverse inference may safely be drawn against the defendant. There is no reason to doubt the genuineness of credit card statements which are Ext. PW1/2 to PW1/41. I also find it necessary to elucidate one other vital aspect over here. Even though it appears from the material on record that there was no specific contract between the defendant and the plaintiff bank but one thing which clearly can be culled out from the evidence on record that the defendant did utilize the credit card services which were eventually financed by the plaintiff bank and Section70 of Indian Contract Act clearly puts a restriction on unjust enrichment. Section70 of Indian Contract Act reads as under : "Section - 70. Obligation of person enjoying benefits of non gratuitous act - Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered."
What Section70 prevents is unjust enrichment and the section is not founded on any contract but embodies the equitable principle of restitution and unjust enrichment (AIR 1986 SC 1218) and this section enables the courts to do Suit No.300/14 Page6/8 7 substantial justice in cases where it would be difficult to impute to the persons concerned relations created by the contract (AIR 1962 SC 779). Applying this analogy to the facts of present suit it can safely be said that the plaintiff bank was not intending to finance the Credit Card Services gratuitously and the defendant was bound to make the payment for the Credit Card Services.
7. ISSUE NO.1 & 2 Whether the suit is barred by period of limitation? OPD Whether there is no cause of action in favour of the plaintiff to file the present suit as the entire payment has been made by the defendant? OPD The onus to prove this issue was upon the defendant. There has been no evidence led whatsoever from the side of defendant to prove this issue. And in the absence of any evidence adduced on this issue, this issue is decided against the defendant.
8. ISSUE NO.4 RELIEF - In view of the findings given on issues no.1 to 3, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has proved its case on the scale of preponderance of probabilities. Accordingly, the suit is decreed in favour of plaintiff and against the defendant and following reliefs are granted to the plaintiff:
1. A money decree for a sum of Rs.1,29,149.44Paise (Rupees One Lakh Twenty Nine Thousand One Hundred Forty Nine And Paise Forty Four Only) as principal amount alongwith with pendentalite and future interest @ 6% per annum from the date of filing of the suit till the date of realization of the amount.
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2. Costs of the suit.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
(SANDEEP GUPTA) Civil Judge, Delhi (West)02 Announced in the open court on 27/04/2016.
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