Delhi District Court
Head Office At Mangalore (South Kanara vs Mr. Manishbhai Bhikhubhai Sheladiya on 22 December, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 150/13
Unique ID No. 02401C0448652013
MEMO OF PARTIES
Corporation Bank
LIC Card Centre, New 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,
16/10, FF, Main Arya Samaj Road, Karol Bagh,New Delhi110005
...........Plaintiff
VERSUS
Mr. Manishbhai Bhikhubhai Sheladiya
55, Snehmilan Society, B/H, Mangal Deep School,
Nana Varchha, Surat, Gujarat 395006
..........Defendant
Date of institution of the Suit: 05.09.2013
Date on which judgment was reserved: 17.12.2014
Date of pronouncement of Judgment: 22.12.2014
SUIT FOR RECOVERY OF RS. 71,602.36/ ALONG WITH PENDENTE
LITE AND FUTURE INTEREST @2.50% PER MONTH.
Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 1/10
JUDGMENT:
1. The plaintiff has filed the present suit for recovery of amount against the defendant.
2. The plaintiff avers that it is a Nationalized Bank and is 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 office at Corporation Bank, LIC Card Centre, 16/10, FF, Main Arya Samaj Road, Karol Bagh, New Delhi110005.
3. It is averred that the LIC Card is issued by the Corporation Bank in association with LIC Card Services Limited. The Corporation Bank keeps records of the LIC Cards and maintains the same. The LIC Card is marketed by the LIC Cards Services Limited.
4. It is contended that the defendant approached the plaintiff bank for issuing a LIC Credit Card and submitted duly filled and signed application along with self attested copies of identity and residence proof.
5. The plaintiff avers that it sanctioned a limit of Rs. 30,000/ and issued a LIC Credit Card No. 4628460008738007 to defendant. Pursuant to the delivery of the LIC Credit Card to the defendant, plaintiff has been keeping and maintaining the records of the said LIC Credit Card in the name of Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 2/10 defendant in its ordinary and regular course of business. The plaintiff contends that the defendant could avail and use the LIC Credit Card by signing on the signature panel of the LIC Credit Card or making use of the LIC Credit Card by using part or full credit or cash limits or by purchasing of goods and services from the Member Establishment or withdrawal of the cash from ATMs. It is averred that the whole transaction of buying and purchasing by the defendant is a part and parcel of tripartite agreement entered into by the plaintiff with the VISA and Merchant Establishments.
6. It is further contended that as per the terms and conditions of the LIC Credit Card, the defendant was under an obligation to sign the original charge slip at the time of purchasing from the Sellers/Member Establishments and to collect original bill from the Sellers/Member Establishments at the time of purchasing of goods/service etc.
7. It is submitted that the defendant purchased goods/things from the stores/shops (Member Establishments) by using the LIC Credit Card on 19.04.2010 and the amount of those goods/things has been claimed by the Seller/Member Establishment through VISA and the same have been paid by the plaintiff by debiting the said LIC Card account of the defendant which was duly reflected in the periodical Statement/Bills of the defendant. The defendant by making use of the LIC Credit Card had accepted the terms and Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 3/10 conditions of the LIC Credit Card and the defendant has also agreed to reimburse/remit the outstanding amount within 15 days of the receipt of the st Statement/Bills which were prepared on 21 of every month and the same were regularly dispatched to the defendant by the plaintiff.
8. It is averred that the defendant has been regularly billed by means of periodical monthly Statement/Bills issued by the plaintiff through courier, email and SMS etc. Thereafter, upon receiving the Statement/Bills sent by the plaintiff, the defendant did not raise any dispute and, therefore, defendant was liable to pay the entire amount demanded by the plaintiff regularly by means of periodical monthly Statement/Bills.
9. The plaintiff avers that it repeatedly called upon the defendant to clear and liquidate the dues in respect to the said credit card. The defendant failed to maintain financial discipline and to deposit regular minimum amount in the Card account.
10. Recall Notice dated 20.07.2013 was issued by the plaintiff through Registered Post on 25.07.2013 calling upon the defendant to pay sum of Rs. 64,984.58/ which was due and outstanding.
11. No response was received by the plaintiff to the Recall Notice dated 20.07.2013 neither any amount was paid by the defendant in the LIC Credit Card account.
Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 4/10
12. The plaintiff states that as on 21.08.2013, an amount of Rs. 71,602.36/ was due and payable by the defendant to the plaintiff with further interest at the rate of 2.50% p.m. alongwith finance charges, late payment, over limit and other charges thereon over and above the agreed rate of interest for the default in making payments which is also payable from the date of filing of the suit till the date of realization. The suit amount of Rs. 71,602.36/ includes outstanding (Principal) of Rs. 12,765.00/ and finance charges, late payment, over limit, other charges and interest of Rs. 58,837.36/.
13. The suit was initially filed under the summary provisions of Order 37 CPC however vide order dated 07.12.2013 the suit was converted to an ordinary suit. The defendant was duly served on 20.03.2014 but did not appear despite service and vide order dated 29.05.2014 the defendant was proceeded ex parte.
14. In order to prove its case the plaintiff in exparte evidence has examined Sh. Ashwin Tirkey, Manager of the plaintiff bank. He has relied upon the following documents which have been exhibited as Ex. PW1/1 to Ex.PW1/10.
(i) Ex. PW1/1 is the application form for credit card submitted by the defendant to the plaintiff.
(ii) Ex. PW1/2 are the photocopies of the ITR, PAN Card, Electricity Bill Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 5/10 and Driving License of the defendant.
(iii)Ex. PW1/3 (colly) are the Credit Card Statements of the defendant.
(iv) Ex. PW1/4 (colly) are the office copy of the recall notice dated 20.07.2013 and speed post receipt dated 25.07.2013.
(v) Ex. PW1/5 is the computer generated Card Holder's Detail/Summary.
(vi)Ex. PW1/6 is the Certificate under Banker's Book of Evidence Act.
(vii)Ex.PW1/7 is the Most Important Terms and Conditions document.
(viii)Ex.PW1/8 is the Agreement for issue of CoBranded/White Label Credit Card (OSR).
(ix) Ex.PW1/9 is the Agreement executed between Opus Software Solutions Pvt. Ltd. and the plaintiff. (OSR)
(x) Ex.PW1/10 is the Power of Attorney in favour of Sh. A.V. Ambastha executed on 29.01.1992. (OSR)
15. Thereafter exparte final arguments were advanced by counsel for the plaintiff. Heard and perused.
16. The plaintiff has proved the Agreement for Issue of CoBranded/White Label Credit Card executed between the plaintiff and LIC Cards Services Limited as Ex. PW1/8 (OSR) and the LIC CardMost Important Terms & Conditions document as Ex. PW1/7. These two documents read in conjunction and especially clause F SubClause (2) of Ex. PW1/7 pertaining Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 6/10 to recovery procedure in case of default, sufficiently establish the plaintiff's locus to file the present suit for recovery of amount. The Credit Card application form submitted by the defendant which has been exhibited as Ex. PW1/1 along with the photocopies of the identity and residence proof of the defendant i.e. Ex. PW1/2 and the Credit Card statements which have been collectively exhibited as Ex. PW1/3 which have gone uncontroverted prove that the defendant availed of the Credit Card services. However, perusal of the credit card statements Ex. PW1/3 (colly) shows that the last transaction carried out by the defendant was on 27.07.2010. The present suit has been filed on 05.09.2013. Counsel for the plaintiff initially relied upon the judgment of the Hon'ble Delhi High Court passed in RFA No. 153/2004 decided on 02.03.2012 titled Sh. Virender Kumar Jain Vs. M/s. Alumate (India) Pvt. Ltd. wherein it was held by the Hon'ble Delhi High Court in the facts of that case that the averments in the plaint showed that the loan was given without fixing any date for repayment making that a loan which would be repayable on demand and the demand in that case was raised for the first time by the notice. It was held that the cause of action in that case would arise on the sending of the legal notice and the suit was accordingly held not to be barred by limitation. However, counsel for plaintiff stated later on that upon instructions she did not rely upon the aforesaid judgment. In any case, the Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 7/10 said judgment is not applicable to the facts of the present case as it is not the plaintiff's case herein that any loan repayable on demand had been given to the defendant. Ld. counsel for the plaintiff argued that as per terms and conditions agreed between the parties and the Most Important Terms and Conditions document, the defendant was required to make the payment within 15 days of the receipt of the statements/bills and therefore the plaintiff would have to wait for the 15 days time period to elapse before seeking the recovery and since the last transaction was carried out on 27.07.2010 in relation to which the statement was raised on 21.08.2010, the plaintiff's limitation period should be calculated from 15 days after 21.08.2010 and if so calculated the suit would be within limitation. This argument of the plaintiff is entirely fallacious since it is in fact the specific averment of the plaintiff in para8 of the plaint that under the terms and conditions of use of the LIC Credit Card the defendant agreed to pay the amount which became due/payable upon statements/bills being sent to the defendant. Thus, as per the plaintiff itself the amount became due/payable upon the statements being sent to the defendant. The limitation period once commences runs continuously. The last transaction was carried out by the defendant as per the Credit Card Statements Ex. PW1/3 (colly) on 27.07.2010 and the payment due date mentioned in the statement dated 21.08.2010 is 'Immediate' therefore as Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 8/10 per the plaintiff's own documents the amount was due and payable atleast on 21.08.2010 if not 27.07.2010 and the limitation period in fact has to be calculated from the date of 21.08.2010. Counsel for plaintiff also relied on a purported notification of the Reserve Bank of India dated 20.12.2013 wherein it had been advised that a Credit Card account would be treated as Non Performing Assets if the minimum amount due as mentioned in the statements was not paid fully within 90 days from the next date's statement. Counsel for plaintiff sought to argue that in view of this notification the plaintiff bank was required to wait for 90 days before initiating recovery proceedings. This argument of the plaintiff again holds no water, there is no such direction contained in the entire notification of the RBI that the bank must wait for 90 days before initiating action and in fact it merely provides for guidelines regarding treating a Credit Card account as being a Non Performing Asset. In the present case, the defendant's account has already been classified as a Non Performing Asset w.e.f. 03.10.2010 as is reflected in the recall notice Ex.PW1/4. Therefore the reliance placed on the aforesaid notification of the RBI is completely misplaced and does not bring the suit within limitation.
17. Though the defendant is exparte in the present case however Section 3 of the Limitation Act enjoins upon the court to consider the bar of limitation even if it has not been set up as a defence. The present suit filed on Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 9/10 05.09.2013 is beyond the limitation period of three years calculated from 21.08.2010. The suit of the plaintiff is barred by limitation therefore the present suit is hereby dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 22.12.2014 Civil Judge - 10 (Central)
22.12.2014
Suit No. 150/13 Corporation Bank Vs. Mr. Manishbhai Bhikhubhai Sheladiya 10/10