Delhi District Court
Raj Kumar vs . Central Bank Of India on 2 March, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE/
GUARDIAN JUDGE / JUDGE SMALL CAUSE COURT:
NORTH-EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
Presided by: Sh. Sujit Saurabh
CIVIL SUIT NO. 838/2019
RAJ KUMAR Vs. CENTRAL BANK OF INDIA
Sh. Raj Kumar
S/o Sh. Kanhaiya Lal
R/o H. No. B-315,
Gali No.13, Bhajanpura,
Delhi- 110053. ..... Plaintiff
Versus
Central Bank of India
Branch Bhajanpura,
Delhi-110053.
Through Its Branch Manager. .... Defendant
Date of Institution of the Suit : 23.12.2019
Date of Judgment : 02.03.2023
Decision : Suit Dismissed
SUIT FOR MANDATORY INJUNCTION & DAMAGES
JUDGMENT
1. The plaintiff claims to maintain a current account No. 3631019548 with the defendant bank. On 07.08.2019, the plaintiff visited the Bhajanpura Branch of the defendant bank for issuing a demand draft of Rs.93,300/- (Ninety-three Thousand and Three hundred only). The bank draft was supposed to be given to Shree Fort Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 1 Institute of Management as admission fee for the admission of son of the plaintiff. The defendant bank issued a demand draft in sum of Rs. 93,300/- vide D.D. No.353128 in the name of Shree Fort Institute of Management. The demand draft was deposited along with application form and other documents to Shree Fort Institute of Management for admission of the son of the plaintiff. However, the institute did not give admission till 16.08.2019. The son of the plaintiff got opportunity to get admission in GGSIP University. Therefore, the plaintiff requested the Shree Fort Institute of Management to return the documents of his son along with the demand draft. On 20.08.2019, the Shree Fort Institute of Management told the plaintiff that the demand draft has been lost and other documents shall be returned very soon. Believing upon the words of the institute, the plaintiff informed the defendant bank about loss of the demand draft and asked the bank to stop the payment of the demand draft. Accordingly, the defendant bank stopped the payment of the demand draft and credited the amount of the demand draft in to the account of the plaintiff. The plaintiff utilized Rs. 17,194/- from his account. The plaintiff received a legal notice dated 04.10.2019 from the defendant bank wherein it was stated that the defendant bank had received a notice from Shree Fort Institute of Management regarding dishonor of the demand draft. The defendant bank asked the plaintiff to deposit the amount of Rs. 17,194/-. Accordingly, the plaintiff deposited Rs.17,194/- in his account with the defendant Bank. Thereafter, the plaintiff replied to the notice and asked the defendant bank not to make payment to Shree Fort Institute of Management against the said demand draft. Thereafter, the defendant bank closed the account of the plaintiff without any prior intimation or information to the plaintiff. Due to act Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 2 of the defendant bank, two cheques of the plaintiff i.e. cheque bearing No. 047056 dated 23.09.2019 and 047055 dated 23.09.2019 issued to third person were dishonoured. On 08.11.2019, the plaintiff contacted the defendant bank and asked the reason for closer of the account. Branch Manager of the defendant bank told the plaintiff that he has full authority to close/seize any bank account or to open any bank account without giving any information to anyone. He refused to open the account of the plaintiff. The plaintiff sent legal notice dated 16.11.2019 to the defendant bank but the defendant bank neither replied to the notice nor complied the same. On these averments, the plaintiff has prayed as follows:
"It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass:
a. A decree of mandatory injunction in favour of the plaintiff and against the defendant, thereby directing the defendant, its branch manager, employees, representative, office bearers or any other person acting on behalf of the defendant to reopen-the aforesaid seized/ closed current bank account No. 3631019548 by allowing the plaintiff to continue with the said current bank account by using the entire amount lying in the said bank account.
b. A decree of damage in favour of the plaintiff and against the defendant thereby directing the defendant, its branch manager, employees, representative, office bearers or any other person acting on behalf of the defendant to pay a sum of Rs.50,000/- to the plaintiff for causing mental pain and physical agony and harassment to the plaintiff.
c. Cost of the suit may also be awarded in favour of the plaintiff and against the defendant.
Any other or further order which this Hon'ble Court deems fit and proper may also be passed in favour of the plaintiff and against the defendant."
Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 3
2. Vide order dated 24.12.2019, the defendant was summoned. The defendant entered appearance through Counsel. The defendant was directed to file written statement within statutory time limit. Thereafter, none appeared on behalf of the defendant. Vide order dated 23.03.2021, defence of the defendant was struck and it was proceeded ex-parte.
3. The plaintiff led ex-parte Plaintiff's Evidence (in short 'PE'). Sole witness examined on behalf of the plaintiff is plaintiff himself. He entered in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/1. He reiterated the contents of the plaint in his evidence by way of affidavit and relied upon the following documents:
i. Copy of D.D. dated 07.08.2019 Mark-PW1/A ii. Copy of legal notice dated 04.10.2019 Ex. PW1/B, iii. Copy of deposit Slip Ex. PW1/C, iv. Copy of Legal Notice dated 09.10.2019 Mark PW1/D, v. Copy of Legal Notice dated 10.10.2019 Mark PW1/E, vi. Copy of Legal Notice dated 16.11.2019 Mark PW1/F, vii. Copy of receipts of speed post, dated 09.10.2019, 10.10.2019 and 16.11.2019 Ex. PW1/G (colly), viii. Copy of cheque No. 047056 Ex. PW1/H, ix. Copy of cheque return memo dated 09.10.2019 Ex.PW1/I, x. Copy of cheque No. 047055 Ex. PW1/J and xi. Copy of Aadhar Card of the plaintiff Mark-PW1/K .
4. Vide order dated 05.12.2022, PE was closed as per statement of the plaintiff and the matter was listed for final arguments.
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5. Final arguments were advanced on behalf of the plaintiff only as the defendant is ex-parte and it did not join the court proceeding except initial appearance.
FINDINGS AND REASONS THEREFOR
6. By way of first prayer, the plaintiff has sought relief of mandatory injunction to reopen his seized/closed account.
6.1 Relief of injunction is equitable relief. Equity demands that a person who seeks equity must do equity. However, materials on record suggest that the plaintiff is very evasive in narrating the facts in the plaint. He has tried to portray that he has been victimized by the defendant bank. However, collective reading of the materials on record suggests that the plaintiff has not approached the court with clean hands.
6.2. Though the plaintiff claims that his account has been closed /seized, he has not placed on record any documentary proof of closer/seizer of the account. In para No. 11. of the plaint, the plaintiff has stated as follows:
"That thereafter, the plaintiff came to know that the defendant bank has closed/seized his aforesaid current bank account without any prior intimation or information to the plaintiff and further, in the legal notice dated 04/10/2019, it was not mentioned that that the defendant bank shall seize/close the said bank account but the defendant bank only asked the plaintiff to deposit the amount of 17,194/- which was deposited by the plaintiff on 14/10/2019, hence, there was no fault on the part of the plaintiff in compliance of the notice dated 04/10/2019. Due to the said unlawful and illegal act on the part of the defendant Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 5 bank, the two cheques bearing No. 047056 dated 23/09/2019 & 047055 dated 23/09/2019 issued by the plaintiff to third persons from the said current account got dishonoured".
He has made similar averments in para No. 11 of Affidavit Ex. PW1/1.
Ex. PW1/H is copy of cheque bearing No. 047056 dated 23.09.2019. Ex. PW1/I is cheque returning memo of cheque bearing No. 047056, dated 09.10.2019. As per Ex, PW1/I, the cheque was returned with remark "Contact drawer drawee". Reason for return of the cheque is mentioned as "05-Kindly contact Drawer/Drawee bank and please present again". It is pertinent to mention that the cheque was not dishonoured on account of closer /seizure of the bank account of the plaintiff. The reason for return of the cheque clearly indicates that the account of the plaintiff was very much operative on the date of its return.
6.3 Ex. PW1/J is photo copy of the cheque bearing No. 047055. It is worth noting that the plaintiff has not filed return memo of the cheque bearing No. 047055, though he claims that the cheque had been dishonoured on account of closer/seizure of his account. It is also worth noting that the cheque Ex. PW1/J does not reflect even its presentation to the bank for encashment as it does not bear any remark or seal /stamp of the bank unlike upon cheque Ex. PW1/I. 6.4 It is also worth noting that both the cheques Ex. PW1/H and Ex. PW1/J are dated 23.09.2019. If the cheque Ex. PW1/H was dishonoured on account of closer/seizer of the account on or before 09.10.2019 i.e. date of cheque returns memo Ex. PW1/I, then it is Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 6 difficult to believe that the plaintiff was able to deposit Rs. 17,194/- in his closed account on 14.10.2019.
6.5 Vide order dated 21.01.2023, following clarifications were sought from the plaintiff:
i. Whether the plaintiff did not have any efficacious remedy other than the relief of injunction? And ii. Whether Siri Fort Institute of Management Studies is necessary/ proforma party for adjudication of the matter?
6.6 The clarifications furnished on behalf of the plaintiff are mentioned in order dated 23.02.2023. For the sake of brevity, relevant portion of the order dated 23.02.2023 is reproduced herewith:
"Vide order dated 21.01.2023, certain clarifications were sought from Ld. Counsel for the plaintiff.
So far as first point is concerned, Ld. Counsel for the plaintiff has stated that the plaintiff is a layman and he did not know, if he had any remedy available other than to approach the court by way of suit for injunction.
So far as second point is concerned, Ld. Counsel has stated that Siri Fort Institute of Management Studies is neither necessary party nor proforma party for adjudication of the matter and hence, it was not made party. It is further submitted by Ld. Counsel that the plaintiff has no grievance against the Siri Fort Institute of Management Studies."
6.7 It is surprising that the plaintiff despite being a layman is aware that the court can be approached by way of a suit for injunction for redressal of his grievances, but he is not aware of simple administrative remedies. The plaintiff could have lodged a complaint Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 7 with the senior officials of the defendant bank for redressal of his grievances. However, he has not preferred to do so. Rather, he has adopted the approach of arms twisting by filing a suit against the defendant. To illustrate this fact, it is necessary to highlight certain facts on record.
6.8 In reply to the second question, the plaintiff has stated that he has no grievance against Siri Fort Institute of Management and hence it was not made a party.
It is pertinent to mention that the genesis of the matter lies in the grievance of the plaintiff against Siri Fort Institute of Management and the Siri Fort Institute of Management Studies is necessary party for complete adjudication of the matter. The claim of the damage can not be adjudicated without making Siri Fort Institute of Management a party. Some of the points may be highlighted here.
• DD No. 353128 Mark PW1/A is in the name of Siri Fort Institute of Management Studies and Mark PW1/A was handed over to Siri Fort Institute of Management Studies. • In Para No.5 of the plaint, the plaintiff has claimed that he was informed by Siri Fort Institute of Management Studies about the loss of Mark PW1/A. He has stated: "...then, the institute told the plaintiff on 20.08.2019 that the said demand draft has been lost and other documents would be returned very soon." • In para No. 6 of the plaint, the plaintiff has stated that he had requested the defendant bank to stop payment of the demand draft Mark PW1/A. • Once the demand draft Mark PW1/A was made in favour of the Siri Fort Institute of Management Studies and delivered to Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 8 it, same could not have been cancelled without seeking no objection certificate from the Siri Fort Institute of Management Studies as interest was created in favour of it. This fact is reflected from the contents of Notice Ex. PW1/B. In Para No. 3 of the notice, the defendant bank has stated:
"That as per bank rule once the demand draft issued and delivered to the beneficiary, the draft becomes property of the beneficiary and without taking no objection certificate you can not cancel the draft." It is pertinent to mention that the plaintiff has not denied existence of any such rule. • Para No.2 of the notice reads as: "That on 21st August, 2019 you approached to my client and requested to cancel the above said demand draft saying that you have lost the draft and after a lot of search you could not find the same. You also submitted a notary attested Indemnity Bond dated 21-08-2019 regarding the loss of demand draft. That my client cancelled the above said demand draft and credited the amount to your account".
It is pertinent to mention that the plaintiff replied to the notice Mark PW1/B by way of reply Mark PW1/D. However, in the reply, he did not controvert the notice Mark PW1/B. Rather, he requested the defendant bank not to take any action against him. It is also pertinent to mention that the plaintiff very cleverly did not mention these facts in his plaint and made evasive statements to hold the defendant bank accountable.
7. Every judgment passed by a court has to be on merits, irrespective of the fact that the defendant appears before the court and defends himself or not. The Court is not bound to grant a decree in Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 9 case the defendant is absent. Even for an ex-parte judgment and the decree, the basic ingredients of judgment must be available.
In the matter of Ramesh Chand Ardawatiya V/s Anil Pajwani, AIR 2003 SC 2508, it was observed that even if the suit proceeds ex-parte, the necessity of proof by the plaintiff of its case cannot be dispensed with. Merely because the defendant is absent the Court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence.
In the matter of Meenakshisundaram Textiles V/s Valliammal Textiles C.M.A.No.3700 of 2010 (Judgment dated 07.03.2011) Hon'ble Madras High Court has observed:
"16. Code of Civil Procedure does not define either an ex-parte judgment or an ex-parte decree. It refers only to a judgment and a decree. In the event a judgment is rendered when the defendant fails to defend the suit by his absence, that judgment is known to be an ex-parte judgment and the decree drawn on the basis of that judgment is known as an ex-parte decree. Hence, even for an ex-parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the Court has applied its mind to the pleading, relief claimed thereunder, the evidence and the conclusion arrived at by the Court on the above."
8. In the light of above discussed facts and expositions of law, it is held that the plaintiff is not entitled to the relief of mandatory inunction as prayed.
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9. So far second prayer of damage is concerned, same can not be granted for the same reason as noted above. Accordingly, the prayer is declined.
10. Considering the facts and circumstances of the case, the suit of the plaintiff is dismissed with exemplary cost of Rs. 25000/- (Twenty five Thousand only). The cost shall be deposited with DLSA, North- East, Delhi. Pending application(s), if any stand(s) disposed of. Decree-sheet be drawn.
11. Copy of the judgment be sent to DLSA, North-East for necessary information and action, if any.
Digitally signed by SUJIT SUJIT SAURABH
Announced in the open court SAURABH Date:
2023.03.02
today i.e. 02.03.2023 17:10:32 +0530
(SUJIT SAURABH)
ASCJ/GJ/JSCC-North East
Karkardooma Courts, Delhi
02.03.2023
Civil Suit No.838/2019. Raj Kumar versus Central Bank of India 11