Delhi District Court
9/1312 vs Corporation Bank on 16 July, 2010
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
RCA No.16/09
ID No. : 02402C0046952009
In the matter of :
Sh. Harmeet Singh
Proprietor of M/s. Jasleen Enterprises
9/1312, Mandirwali Gali,
Gandhi Nagar, Delhi .....Appellant / Defendant
Versus
Corporation Bank
A body corporate constituted under
the Banking Companies (Acquisition & Transfer
of Undertakings) Act, 1980 (Act 3 of 1980)
having its Head office at Mangalore,
South Kanara Karnataka State with one of its
Branches at 13/32, Arya Samaj Road,
Karol Bagh, New Delhi - 110 005 .....Respondent / Plaintiff
Date of Institution : 11.02.2009
Date of arguments heard : 08.07.2010
Date of judgment/order : 16.07.2010
RCA No.16/09 Page 1 of 6
J U D G M E N T
1. The appellant / defendant has preferred an appeal against judgment and decree dated 06.01.09 passed by Ld. Trial Court vide which the suit of the respondent / plaintiff was decreed.
2. The appellant has filed the appeal on the grounds that respondent has never provided the periodical statements from time to time to him in order to apprise about the latest position of his account. He was kept in dark about the credits made in the account as he was making payments from time to time. No amount was due so question of interest doesn't arise. His evidence was not recorded. His arguments were not heard. Hence, this appeal.
3. The notice of the appeal was given to the respondent / plaintiff.
4. The plaintiff (herein respondent) has filed the suit for recovery against the defendant with the averments that plaintiff bank is a body corporate constituted under Banking Companies (Acquisition and Transfer of Undertaking) Act, 1980 with head office at Manglore and one of the branches at Arya Samaj Road, 13/32, Karol Bagh, New Delhi. S K Aggarwal is Chief Manager and Principal Officer of the plaintiff bank who is duly authorized and competent to sign and verify the plaint. He is also holding power of attorney executed by the plaintiff bank in his favour.
5. The defendant is a sole proprietor of M/s. Jaslin Enterprises. The defendant is running a current account No.CA/01/002642 with the plaintiff bank in the name of his firm. The defendant requested the plaintiff bank for temporary overdraft facility which was granted to the defendant. First temporary overdraft facility was granted to the firm of RCA No.16/09 Page 2 of 6 the defendant on 13.05.03 when the defendant presented a self cheque No.0738493 for a sum of Rs.2 lacs and same was paid to the defendant though the credit balance in his current account on 13.05.03 was of Rs.2114.32. The defendant thereafter availed the facility from time to time.
6. On 12.08.03 the defendant requested the plaintiff bank to purchase certain bills amounting to Rs.25000/, 45000/, 49000/, 80000/ and 49900/ and after the purchase of said bills a sum of Rs.164908.32 was credited in his account. Another temporary overdraft facility of Rs.253000/ was granted to the plaintiff against cheque No.0186018 which resulted in withdrawal of Rs.88096.68 from the current account. On 19.08.03 cheque No.0186020 of Rs.1.30 lacs and cheque No.0186021 of Rs.15000/ were presented by the defendant which were duly paid by the plaintiff bank. The defendant requested for the grant of temporary overdraft facility by presenting a cheque No.0217192 of Rs.1.21 lacs which was duly encashed on 24.09.03 and as such a sum of Rs.237575.68 was withdrawn from the current account. On 24.09.03 defendant requested for the purchase of three bills amounting to Rs.16115/, 74300/ and 30138/. The said bills were purchased by the plaintiff bank and the amount was credited to the current account of the defendant and as such a sum of Rs.117428.68 was overdrawn. On 31.03.05 a sum of Rs.118607.68 was overdrawn from the current account by the defendant. The defendant has failed to liquidate the amount of overdraft granted to him despite oral and written request and accordingly a legal notice dated 09.06.06 was issued but in vain. Hence, this suit.
7. The defendant (herein appellant) was duly served who failed to file RCA No.16/09 Page 3 of 6 the written statement as a result opportunity to file the WS was closed.
8. The plaintiff bank examined one witness and closed the evidence.
9. Ld. Trial Court after perusing the oral as well as documentary evidence on record and hearing Ld. counsel for the plaintiff bank decreed the suit.
10. Ld. counsel for the appellant submitted that appellant should have been given the opportunity to cross examine the witness and arguments should have been heard. He further submitted that appellant was present on 06.01.09 but he was proceeded exparte which has further caused prejudice to the appellant. Ld. counsel for the respondent submitted that case of the respondent stands proved from the documents on record and there was no need for any cross examination of witness.
11. I have heard Ld. counsel for the parties and perused the entire record of the case.
12. A bare perusal of the Trial Court Record reveals that appellant failed to file the written statement within the statutory period and accordingly opportunity to file the WS was closed on 02.06.08. The order sheet dated 15.11.08 reveals that defence of the appellant was struck off vide order dated 02.06.08. The order sheet dated 17.12.08 reveals that respondent tendered the affidavit of Sh. Neeraj Gupta in evidence. The opportunity to cross examine the witness was not granted to the appellant though appellant was present.
13. In Modula India v. Kamakhya Singh Deo, AIR 1989 SC 162, it was held by their lordship in para 24 that "For the above reasons, we agree with the view of Ramendra Mohan Dutta, ACJ, that, even in a case where the defence against delivery of possession of a tenant is struck off under RCA No.16/09 Page 4 of 6 section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled :
(A) to cross examine the plaintiff's witnesses; and (B) to address argument on the basis of the plaintiff's case.
We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his crossexamination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiff's case. In no circumstances should the cross examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."
14. In the instant case, the defence of the appellant stands struck off but even then he has a right to cross examine the witness of the respondent in order to bring out falsity or weakness in the respondent's case. No such opportunity was granted to the appellant to which he is entitled.
15. The appellant is also entitled to address the arguments. The order sheet dated 06.01.09 shows that appellant was proceeded exparte but it nowhere shows whether appellant was absent on that day or not. To my mind, Ld. Trial Court should have reflected in the order sheet about the absence or presence of appellant.
16. Ld. Trial Court has committed an error while passing the judgment and decree. I find force in the submissions of Ld. counsel for the appellant as a result the appeal is allowed. The judgment and decree dated 06.01.09 stands set aside. The case is remanded back with the direction to Ld. Trial Court to give an opportunity to the appellant to RCA No.16/09 Page 5 of 6 cross examine the witness of the respondent and the cross examination cannot travel beyond the very limited object of pointing out, falsity or weakness in the respondent's case and in no circumstances appellant can directly or indirectly present his case in the form of suggestions. The appellant is not entitled to lead his own evidence. There is no order as to the cost. TCR be sent back along with copy of this judgment. Both the parties are directed to put their appearance before Ld. Trial Court on 20.07.10. File of this court, on completion, be consigned to record room. Announced in the open Court on 16.07.2010 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 16.07.2010 RCA No.16/09 Page 6 of 6