Delhi District Court
Corporation Bank vs Ms. Vandana Sharma on 4 June, 2016
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL JUDGE01
( WEST), TIS HAZARI COURTS, DELHI..
Unique ID No. : 02401C0125672014
CS N0. 91/14
Date of Institution : 15.03.2014
Date of reservation of judgment : 17.05.2016
Date of pronouncement of Judgment : 04.06.2016
Corporation Bank
LIC Card Centre, New Delhi
having its Head Office at Mangalore
( South Kanara, Karnataka State)
and having a branch at Corporation Bank
LIC Card Dentre
13 & 14, First Floor, Old Market
Tilak Nagar, New Delhi18.
....................Plaintiff
Vs.
Ms. Vandana Sharma
D/o Sh. Kewal Krishan Sharma
R/o H.No. 126, Sector4, Vikas Nagar
Patoli, Jammu180007.
..............Defendant
SUIT FOR RECOVERY
JUDGMENT
1. Brief facts are that this is a suit filed by plaintiff bank through its Attorney Smt. Anuja Mehta., Manager of plaintiff bank, against the defendant for recovery of Rs. 30,860.97 paise which amount has accumulated on account of credit card used by the defendant and consequent interest, service tax, late payment fee and other charges levelled on the outstanding amount, by the plaintiff.
2. As per plaintiff bank, the defendant had approached it for issue of one LIC credit C.S No.91/14 Corporation Bank vs Vandana Sharma 1/10 card and a duly filled form was submitted by her in this regard alongwith attested copies of her PAN Card, Voter ID Card, NDPL electricity bill etc. as proof of identity and residence. After considering the said request, the plaintiff bank issued LIC credit card bearing no. 4628460002243004 to the defendant with a fixed sanctioned limit of Rs.25,000/ on 17.11.2009. The defendant used the said credit card for making purchases of goods/things from different stores/shops and the amount of the said goods/things have been claimed by the merchants through VISA and the same has been paid by the plaintiff bank on behalf of defendant and accordingly the credit card account of the defendant was debited with the said amount.
3. The defendant was regularly billed by means of periodical monthly statements and the same was duly dispatched by the plaintiff to defendant by way of courier, email, SMS, etc. The defendant did not dispute the credit card account statement hence, she was liable to pay the entire amount as demanded by the plaintiff bank.
4. It is further stated that the defendant failed to make payments of the outstanding amount for the use of credit card and accordingly her account was classified as Non Performing Asset on 04.04.2011. Left with no other alternative, the plaintiff bank issued a legal notice dt. 05.11.2013 to the defendant calling upon her to pay the amount of Rs. 30,860.97/ which was due and outstanding against her account as in 05.11.2013. However, no reply was sent by the defendant to the said notice nor amount was paid. Hence this suit has been preferred by plaintiff before this court for recovery of Rs. 30,860.97/ with further interest @ 2.5 % p.m alongwith finance charges, late payment, over limit and other charges etc.
5. Though the suit was initially filed as a suit U/o 37 CPC, however vide order dated 15.03.2014., it was converted into ordinary suit of recovery. The defendant was duly served on 12.04.2014 through her husband but she did not appear before the court nor filed her written C.S No.91/14 Corporation Bank vs Vandana Sharma 2/10 statement. Hence vide Order dated 23.07.2014, she was proceeded exparte.
6. During exparte PE, the plaintiff bank examined only one witness, who is Sh. Ashwin Tirkey, the Manager of the plaintiff bank. In his testimony, the following documents were exhibited: "The evidence of witness by way of affidavit is Ex. PW1/A wherein the averments made in plaintiff were reiterated, Power of Attorney of witness is Ex. PW1/1, Copy of agreement dated 30.03.2009 executed between plaintiff and LIC card services is Ex. PW1/ 2, original card application form is Ex. PW1/3 (colly), Most Important Terms and Conditions is Ex. PW1/4, Screen Shot providing the details regarding the defendant is Ex. PW1/5, the office copy of legal notice is Ex. PW1/6 (colly), statement of account is Ex. PW1/7 (Colly), the agreement entered between the plaintiff and Opus Software Solutions Pvt Ltd. is Ex. PW 1/8 and plaint is Ex. PW 1/9. "
Thereafter exparte PE was closed and final arguments were addressed by the Ld. counsel of plaintiff.
7. I have heard submissions made on behalf of plaintiff and perused the record. At the outset, the suit appears to be not maintainable in this court being barred by territorial jurisdiction. The territorial jurisdiction of civil court is determined as per Sec 20 of CPC which reads as follows: Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) The defendant, or each of the defendants where there are more than one, at the time of the C.S No.91/14 Corporation Bank vs Vandana Sharma 3/10 commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Now as far as territorial jurisdiction is concerned, the judgment of the Hon'ble Supreme Court in ABC Laminart Pvt. Ltd. vs A.P. Agencies, Salem AIR 1989 SC 1239 is highly relevant in the facts of the present case. It has been held by Hon'ble Apex Court in the said judgment and I quote: "(13) Under Section 20(c) of the Code of Civil Procedure subject to the limitation stated therefore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier section 7 of Act 7 of 1888 added Explanation III as under:
Explanation III In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely (1) the place where the contract was made (2) the place where the contract was to be performed or performance thereof completed (3) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable.
(14) The above Explanation III has now been omitted but nevertheless it may serve a guide.
C.S No.91/14 Corporation Bank vs Vandana Sharma 4/10 There must be a connecting factor.
(15) In the matter of a contract there may arise causes of action of various kinds. In a suit for damages for breach of contract the cause of action consists of the making of the contract, and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed and the breach occurred. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. The determination of the place where the contract was made is part of the Law of Contract. But making of an offer on a particular place does not form cause of action in a suit for damages for breach of contract. Ordinarily, acceptance of an offer and its intimation result in a contract and hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated. The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have (been) performed or its performance completed. If the contract is to be performed at the place where it is made, the suit on the contract is to be filed there and nowhere else. In suits for agency actions the cause of action arises at the place where the contract of agency was made or the place where actions are to be rendered and payment is to be made by the agent. Part of cause of action arises where money is expressly or impliedly payable under a contract. In cases of repudiation of a contract, the place where repudiation is received is the place where the suit would lie. If a contract is pleaded as part of the cause of action giving jurisdiction to the Court where the suit is filed and that contract is found to be invalid, such part of cause of the action disappears. The above are some of the connecting factors."
Hence as per the ratio of this landmark judgment of the Hon'ble Supreme Court, 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 C.S No.91/14 Corporation Bank vs Vandana Sharma 5/10 to be performed or (d) where money under the contract is either payable or paid; or (e) where repudiation of a contract is received.
8. Coming to the facts of the case, perusal of the Application form Ex. PW1/3 ( colly) shows that it has been filled up by the defendant in Patoli, Jammu i.e. outside Delhi. So, the defendant did not come to Delhi for filling and submitting the said application form. The form was sent to Delhi for processing where the same was considered and allowed in the absence of defendant. So offer and acceptance of contract were effected at different places. In these circumstances, as per above judgment of Hon'ble Supreme Court, jurisdiction will be of that place where the acceptance of contract is communicated. In the instant case, the acceptance of contract i.e. sanction of LIC credit card was communicated to defendant at his native place at Jammu, where she resides, which is beyond jurisdiction of Delhi court.
9. As far as the place where the contract is to be performed is concerned, the defendant was at liberty to use the credit card at any place and its use was not confined to the native place of defendant. However the plaintiff bank has filed no document to suggest that the credit card was ever used in Delhi, by the defendant. Hence there is no jurisdiction of Delhi Court even as per this parameter.
10. The next place which can be treated as the place where cause of action arose is the place where the money under the contract, is either payable or paid. Perusal of statement of account filed by the plaintiff bank shows that all payments which have been made by the defendant, are in cash. As per subclause no.4 (b) of clause 'D' of MITC (most important terms and conditions) Ex. PW1/ 4, 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 plaint merely states that the payment were to be received in Delhi in the credit card account of defendant in its branch office at Tilak Nagar Branch, without specifying the place where cash payment was C.S No.91/14 Corporation Bank vs Vandana Sharma 6/10 actually deposited by the defendant.
11. In the modern age of technology, all the accounts are maintained in digital form and there is no physical transfer of funds as may have happened in older days. An account maintained in digital form does not have any physical location and is server based. Anyone can access an account maintained in digital form from any part of the world and can also make transactions through the same. The processing of application form and maintenance of account by the plaintiff bank at a particular place, is its own internal affair with which the defendant is not at all concerned. In such circumstances, the place from where account is being operated by defendant, or the place from where the transaction is made or the payment is received, would be the place where the cause of action or its part thereof arises. This again rules out jurisdiction of Delhi Court.
12. As per the last requirement, the cause of action also arises at the place where the repudiation of contract is received. In the instant case, the recall notice has been served by the plaintiff bank upon the defendant, at her native address at Patoli, Jammu, which is again beyond the jurisdiction of Delhi Court.
13. The plaintiff bank has instituted the present suit solely on the ground that it is maintaining the defendant's account at Delhi. In the application form filled by the defendant, there is no mention of either Karol Bagh Branch or Tilak Nagar branch of plaintiff bank. Further 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. Maintenance of account has nothing to do with institution and performance of contract.
14. The plaintiff bank ought to have instituted the present suit, where the defendant resided/worked for gain or where the cause of action or any part thereof, arose. In view of C.S No.91/14 Corporation Bank vs Vandana Sharma 7/10 above observations and findings, in my considered opinion, no cause of action has arisen in Delhi and the territorial jurisdiction does not lie with this court.
15. However, even on merits, I do not find the case of plaintiff to be proved as per law. The plaintiff has examined only one witness in support of its case i.e. PW1 Ashwin Tirkey, the Manager of the plaintiff bank. He is also the Power of Attorney Holder of the plaintiff bank. The witness has got all the relevant documents pertaining to the credit card's sanction, use, statements, etc., exhibited in his testimony. However from Affidavit Ex. PW1/A and other documents, it is apparent that the defendant did not approach the plaintiff bank for credit card in his presence or that the credit card was sanctioned in his presence. None of the documents bear his signatures. He can neither identify the signatures of defendant nor can he identify the defendant. Infact PW1 has only deposed as per the documents of bank and is not personally aware of the above facts as his status is akin to that of a complete stranger except that he is an employee of plaintiff bank. As far as this case is concerned, he is merely a person who has produced the documents and is not a competent witness who can prove those documents.
The Delhi High Court in Vinay Jude Dias Versus Ms. Renajeet Kaur CM(M) 1030/2008 decided on19.09.2008 held that :
"an attorney is not an incompetent witness. He can appear in the Court and depose in the Court as a witness in respect of facts which are in his knowledge. He cannot depose in respect of the facts which are not in his knowledge and knowledge of which has been derived by him from principal without witnessing the facts himself. However, if an attorney has witnessed all those facts himself which were also witnessed by the principal, an attorney cannot be told that he cannot appear in the witness box and depose in the Court in respect of the facts known to him. Facts, which are within the special knowledge of C.S No.91/14 Corporation Bank vs Vandana Sharma 8/10 principal and are not in the knowledge of attorney can only be deposed by the principal."
The Hon'ble High Court was relying on a judgment of Hon'ble Supreme Court in Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors. AIR 2005 SC 439. In this case, the Hon'ble Supreme Court while dealing with the competency of Power of Attorney holder to depose as a witness, has held that :
"In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the powerofattorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal is entitled to be crossexamined."
16. Under these circumstances, the witness examined by the plaintiff, is of no help to him. The plaintiff ought to have examined the person who was actively involved in the sanction of credit card, monitoring and preparation of account statements, etc. The knowledge of PW1 is merely derived knowledge and it cannot be relied.
17. The suit is also bad for nonjoinder of necessary parties. It is pertinent to mention that the averment made in the plaint that defendant had approached the plaintiff bank for issuance of LIC credit card, is incorrect as the application form through which credit card was allegedly applied by the defendant, had been issued by LIC Card Services Ltd. and not by the plaintiff bank and was signed by defendant in Jammu. Infact there is no privity of contract C.S No.91/14 Corporation Bank vs Vandana Sharma 9/10 between the plaintiff and defendant. The contract of plaintiff bank was with LIC Cards Services Ltd., which in turn had 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 has not been made a party for reasons best known to the plaintiff.
18. Moreover as per the plaint, the liability of defendant to pay the outstanding amount of LIC credit card was dependent upon receipt of statements/bills generated in this regard. No proof has been filed by the plaintiff as to when and in what mode and manner, the statements/bills were dispatched/intimated to the defendant. The plaintiff ought to have produced evidence in this regard but has failed to do so.
19. Furthermore, perusal of Ex. PW1/4, to Ex. PW1/5 and Ex. PW1/7, shows that the same are computer generated documents. However the plaintiff has not filed or exhibited Certificate under 65B of Indian Evidence Act or certificate under the Bankers Book Evidence Act without which the computer generated documents are not admissible in evidence as laid by Hon'ble Supreme Court in the landmark case of Anvar P.V. v. P.K. Basheer, Civil Appeal No. 4226 of 2012, decided on 18.09.2014, pertaining to admissibilty of electronic evidence. Accordingly, the other computer generated documents cannot be read in evidence.
The above observations and findings makes it apparant that the plaintiff has been unable to prove its case because of the infirmities as noted above. Accordingly, the suit stands dismissed. No order as to Costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( A.K. Agrawal) today 04.06.2016 Civil Judge01 (West)/Delhi C.S No.91/14 Corporation Bank vs Vandana Sharma 10/10