Delhi District Court
Head Office At Mangalore (South Kanara vs Chinthakindi Praveen Kumar on 27 October, 2016
Suit No.7417/16
IN THE COURT OF Ms. MONA T. KERKETTA,
CIVIL JUDGE5, WEST, TIS HAZARI COURTS, DELHI
CNR NO.: DLWT030001892013
In Re. :
Corporation Bank
LIC Card Centre, 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,
First Floor, 13 14, Old Market, Tilak Nagar,
New Delhi110018.
...............Plaintiff
Versus
Chinthakindi Praveen Kumar
954, Village Gudem,
Post Begumpet,
Mond bejjenki
Dist. Karimnagar,
Andhrapradesh505530.
........... Defendant
SUIT FOR RECOVERY OF Rs.97,377.38/ ALONG WITH INTEREST @ 2.50%
PER MONTH
Date of institution of the suit : 02.12.2013
Order reserved on : 27.10.2016
Date of Judgment : 27.10.2016
EX PARTE JUDGMENT
1.In the plaint, it is stated that the defendant approached the Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.1/6 Suit No.7417/16 plaintiff bank for LIC Credit Card and submitted an application in this regard alongwith the self attested copies of ITR, Voter I.Card, PAN Card, statement, AXIS bank, form No.2D, LIC policy status report etc. It is further stated that LIC Card was issued by the plaintiff bank in association with LIC cards services Ltd and the plaintiff bank sanctioned a limit of Rs. 20,000/ and issued LIC Credit Card No. 4628460007671001 to him. The plaintiff bank debited the LIC Card account of defendant towards purchase of goods and services. As per the terms and conditions of LIC Credit Card user guide, defendant is liable to make the payment of outstanding amount towards the said LIC Credit Card, but he failed to do so despite the demands made by the plaintiff bank.
2. Therefore, the plaintiff bank issued a recall notice dated 06.09.2013 to defendant calling upon him to repay the amount due with interest but the defendant neither replied the said notice nor made the payment. Hence, the present suit has been filed for recovery of Rs. 97,377.38/ along with pendentelite and future interest @ 2.50% per month along with finance charges, late payment, over limit, other charges and costs of the suit.
3. Defendant failed to appear before the court despite being served. The defendant also did not file written statement despite having the opportunity, therefore, vide order dated 01.09.2015, he was proceeded ex parte.
4. In support of its case, plaintiff examined Sh. Ashwin Tirkey, Manager, Corporation Bank, LIC Card Centre, Tilak Nagar, New Delhi as PW1, who tendered his evidence by way of affidavit, which is ExPW1/A, Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.2/6 Suit No.7417/16 bearing his signatures at point A & B and also relied on following documents :
(a) Original application form of LIC credit card : Ex. PW1/1;
(b) Copy of PAN Card : Mark A;
(c) Computer generated statements/bills of
defendant : Ex. PW1/3 (colly.);
(d) Recall letter dated 03.09.2013 & postal receipt : Ex. PW1/4 (colly.);
(e) Computer generated screen shot containing
details of the defendant : Ex.PW1/5;
(f) Certificate of statement of entries : Ex.PW1/6;
(g) Copies of terms & conditions of LIC credit card: Ex. PW1/7 (colly);
(h) Copy of agreement for issue of co branded/
white label credit card : Ex.PW1/8;
(i) Copy of agreement executed between Opus
Software Solutions Pvt. Ltd. And plaintiff bank : Ex. PW 1/9(colly.);
(j) Copy of power of attorney of AR : Ex.PW1/10;
5. The court heard the arguments of learned counsel for the plaintiff and perused the record with her assistance.
6. After going through the entire record, the court has no hesitation in holding that the present suit is liable to be dismissed for the following reasons :
(a) No cause of action has arisen in Delhi therefore the territorial jurisdiction to try the present suit does not lie with this court;
Admittedly, the present suit is based on contract. 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 payable or paid or (e) where repudiation of a contract is received.
In the present suit, perusal of application form Ex.PW1/1 shows that the same was filled up by the defendant in Andhra Pradesh and he did not come to Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.3/6 Suit No.7417/16 Delhi for filing and submitting the said application form. It is on the record that the said application form was sent to Delhi for processing where it was considered and allowed in the absence of the defendant. So, offer and acceptance of contract took place at different places. The acceptance of contract i.e. sanction of LIC credit card was also communicated to the defendant at his native place at Andhra Pradesh where he resides, which is beyond jurisdiction of Delhi courts. So far as the place where the contract is to be performed is concerned, it be observed that no document has been filed on record to suggest that the credit card was ever used by the defendant in Delhi, therefore, there is no jurisdiction of Delhi courts as per this parameter also.
As per sub clause 4(b) of clause (d) of MITC which is Ex.PW1/7, 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 plaintiff has not specified the places where cash payment was to be actually deposited and was in fact deposited by the defendant. The plaint merely states that the credit card account of the defendant was being maintained at Delhi. It is pertinent to mention that all the accounts are maintained in digital form which does not have any physical location and is server based, therefore anyone can access the account from any part of the world and can also make transactions through the same. 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. As per last requirement, the cause of action arises also at the place where the repudiation of the contract is received. In the present case, recall notice was served upon the defendant at his native place which again rules out jurisdiction of Delhi courts.
(b) PW1 Sh. Ashwin Tirkey, the Manager of plaintiff bank is not a competent witness :
PW1 is the power of attorney holder of the plaintiff bank. It is apparent Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.4/6 Suit No.7417/16 from the record that the defendant neither approached the plaintiff bank for credit card in his presence nor the credit card was sanctioned in his presence. It is also apparent that none of the exhibited documents bear signatures of PW1. He can neither identify signatures of the defendant nor can he identify him. PW1 deposed only on the basis of documents of bank and is not personally aware of the facts of transaction. He is merely an employee of the plaintiff bank. He has only produced the documents of bank and is not a competent witness who can prove those documents. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived on the basis of bank records without witnessing the facts himself.
(c) The suit is also bad for mis joinder of necessary parties :
It is on record that the credit card was issued by LIC card services Ltd. and not by the plaintiff bank. The contract of plaintiff bank was with LIC card services Ltd. which in turn 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 not made a party by the plaintiff bank.
(d) No evidence has been brought as regard intimation of statements/bills to the defendant :
The liability of defendant to pay the outstanding amount of LIC credit card was dependent upon receipt of statements/bills generated to this effect. However, no proof has been filed by the plaintiff bank as to when and in what mode and manner the statements/bills were dispatched and intimated to the defendant.
(e) No certificate u/s 65B of Indian Evidence Act, 1872 has been placed on record in support of computer generated documents : The suit of the plaintiff deserves to be dismissed for the want of compliance of Section 65B of Indian Evidence Act, 1872 and directions given by Hon'ble Supreme Court in the case of Anwar P.V. Vs. P.K. Bashir, Civil Appeal no.4226/2012, decided on 18.09.2014 Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.5/6 Suit No.7417/16 pertaining to admissibility of electronic evidence. It be observed that the person who was having lawful control over the use of computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, should have been examined. Under such circumstances, genuineness of statement of account cannot be ascertained.
7. In view of above said discussions, the present suit stands dismissed. No order as to costs.
8. Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in the open court (Mona T. Kerketta)
today i.e. 27.10.2016 Civil Judge05/West/THC
Delhi
Suit No.7417/16 Corporation Bank Vs. Chinthakindi Praveen Kumar Page No.6/6