Delhi District Court
Branch Office At vs Shri Satyender Singh on 18 October, 2011
IN THE COURT OF SH HARJYOT SINGH BHALLA
CIVIL JUDGE-01, SOUTH DISTRICT: SAKET COURTS,
NEW DELHI
SUIT NO.379/10
ID no. 02403C0932402008
IN THE MATTER OF :
Dena Bank,
Office at: C-10, G-Block, Bandra-Kurla Complex,
Bandra (E), Mumbai-400051
Branch Office at:
Okhla Industrial Estate Branch
Phase-III, Okhla,
New Delhi-110020 ...............Plaintiff
VERSUS
1 Shri Satyender Singh
R/o A-65 Harkesh Nagar,
Okhla Tank, New Delhi
2 The Authorized Officers
Punjab National Bank,
Nizamuddin West,
New Delhi-110013 ........Defendants
SUIT FOR RECOVERY OF RS. 1,22,245.88 (RUPEES ONE LAC
TWENTY TWO THOUSAND TWO HUNDRED FORTY FIVE PAISE
EIGHTY EIGHT ONLY) BEING THE PRINCIPAL SUM DUE AS ON
20.11.2008 BESIDES PENDENTE LITE AND FUTURE INTEREST @
18% P.A. WITH MONTHLY RESTS AND COSTS.
Dena Bank Vs. Satender Singh Page 1/14
Suit no. 379/10
Date of Institution : 22.11.2008
Date of reserving the Order : Oral
Date of pronouncement : 18.10.2011
J U D G M E N T (ORAL):
1 By this order, I shall dispose off the above suit for recovery of Rs. 1,22,245.88 ps.
BRIEF FACTS CULLED OUT FROM THE PLEADINGS:
Plaintiff's Case
2 The plaintiff is a body corporate with perpetual succession and is a Nationalized Bank constituted under the Banking Companies (Acquisitions & Transfer of Undertakings) Act, having its Head Office at Dena Corporate Centre, C-10, G-Block, Bandra-Kurla Complex, Bandra (E), Mumbai-400051. Plaintiff has a branch office amongst others at Okhla Industrial Estate Branch, Phase-III, Okhla New Delhi-110020. Sh. B. L. Meena, Senior Manager holds power of attorney and is duly authorized and empowered by the plaintiff bank to sign and verify the plaint and institute the suit and/or file documents etc. in connection with the suit and to do all other co-related acts on behalf of the bank as deem fit and proper. The present suit is being accordingly signed and verified by the said Shri. B. L. Meena, Senior Manager.
3 The defendant no.1 the account holder of the plaintiff and indebted to the plaintiff having availed the temporary overdraft by withdrawing amount from the account against the deposit of cheque. The defendant no.1 is a borrower and liable to pay the amount claimed by the plaintiff. The defendant no.2 is bank on which the cheque, against which the money was withdrawn by defendant no.1, was drawn and who is not making payment of Dena Bank Vs. Satender Singh Page 2/14 Suit no. 379/10 cheque. The defendant no.2 is also liable to make payment of the cheque. 4 The defendant no.1 opened an account with the plaintiff on 04.08.2003 and started operating the account. On 28.02.2008, the defendant no. 1 deposited a cheque no.10373 dated 25.02.2008 for a sum of Rs. 1,33,000/-. The said cheque was in the name of the defendant no.1 and was drawn on Punjab National Bank, Nizamuddin West, New Delhi-110013, defendant no.2.
5 That on the past conduct of the account holder, assurances and promises by the defendant no.1, to pay back the amount of the cheque if the same was not honored by the drawee bank, the plaintiff bank credited a sum of Rs. 1,33,000/- in the saving bank account no. 13732 opened in the name of the defendant no.1. The balance in the account became Rs.1,33,955.12 after crediting amount of Rs.1,33,000/-.
6 The defendant no.1 withdrew an amount of Rs.1,10,000/- out of the amount credited to his account on the basis of the said cheque. 7 That the plaintiff bank sent the said cheque to the drawee bank, i.e. defendant no.2, for payment on 01.03.2008. However, the defendant no.2 returned the said chqeque unpaid due to 'insufficient funds' in the account on which the said cheque was drawn.
8 That the defendant no.1 was informed about the dishonour of the cheque by the plaintiff and the return memo and the unpaid advise were handed over to the defendant no.1. The defendant no.1 assured the plaintiff to repay the said amount.
9 That when the defendant no.1 did not made the payment the bank officials visited his residence and he was requested to repay the amount withdrawn by him from the account. But the defendant no.1 did not make Dena Bank Vs. Satender Singh Page 3/14 Suit no. 379/10 payment. The officials of the plaintiff bank continued to pursue the defendant no.1 for repayment of the temporary overdraft in the account. On this defendant no.1 requested the plaintiff bank to resubmit the cheque for the payment and assured that the payment would be received from the defendant no.2 on presentation of said cheque. However, the said cheque again returned dishonoured on 14.06.2008.
10 That plaintiff bank sent a letter dated 03.07.2008 and letter dated 10.07.2008 informing the defendant no.1 that the cheque dated 25.02.2008 was returned dishonoured due to 'insufficient funds' on 01.03.2008 and 14.06.2008 and the non payment advise along with the return memo was sent to the defendant no.1. The plaintiff reminded the defendant no.1 that even after assurance had been given by him, defendant no.2 did not make the payment.
11 That a reply was received from the defendant no.1 vide letter dated 28.07.2008 sent through Shri Rajeev Sinha, Advocate. In the said reply defendant no.1 admitted that he had deposited the said cheque for sum of Rs.1,33,000/- and also admitted that he had withdrawn sum of Rs. 1,10,000/-. However, defendant no. 1 denied that the said cheque was not paid due to insufficiency of funds by the defendant no.2. 12 That when the plaintiff was confronted with the said documents of dishonour, he again requested the bank to represent the cheque and assured that the payment would be received if the cheque is sent for encashment this time. But again vide return memorandum dated 31.07.2008 the said cheque was returned unpaid by defendant no.2 although the defendant no.2 could have made the payment of cheque as the cheque was returned unpaid for reasons other than insufficient funds on the frivolous and Dena Bank Vs. Satender Singh Page 4/14 Suit no. 379/10 incorrect grounds.
13 In the circumstances it is clear cut case that the defendant no.1 has withdrawn money against instrument i.e. cheque which was not paid and the plaintiff is illegally entitled to recover the said amount of Rs.1,10,000/- from the defendant no.1 alongwith interest. The outstanding amount in the said account as on 20.11.2008 is Rs.1,22,245.88 (which includes interest upto 20.11.2008) which the defendants are liable to pay. 14 That since the defendant no.1 has utilized the said amount and has failed to pay the amount the bank is entitled to recover commercial interest @18% p.a., with monthly rests which is charged on overdraft facility. 15 The cause of action arose in favour of the plaintiff when the account was opened by the defendant no.1 with the bank. The cause of action also arose when the defendant no.1 made various payments in this account and also when he withdrew money from the account. The cause of action also arose in favour of plaintiff and against the defendant no.1 when the defendant no.1approached the plaintiff bank and deposited the cheque bearing no. 103730 for Rs.1,33,000/-. The cause of action further arose when the defendant withdrew the amount credited to his account. The cause of action also arose when the said cheque was dishonoured by the defendant no.2 from time to time and also when the information of such dishonor was communicated to the defendant no.1 and also when the defendant no.1 was asked to make payment of the said cheque. The cause of action also arose when the defendants failed to make the payment. The cause of action also arose when the defendant no.1 assured to make payment. The cause of action also arose when the defendant no.2 refused payment on illegal and unlawful ground. The cause of action is still subsisting and continuing. The Dena Bank Vs. Satender Singh Page 5/14 Suit no. 379/10 suit is filed within limitation.
Defendant's case 16 Vide order dated 13.01.2011, the defendant no. 2 was deleted from the array of the parties. The defendant no. 1 filed his WS taking preliminary objections besides contesting the claim on merits. The defendant's case is that the present suit is not maintainable because the plaintiff has concealed the material facts from this Hon'ble Court as the plaintiff in connivance of the other bank had dome some thing for which the defendant cannot be held liable.
17 That the contents of para no. 2 of the suit is admitted to the extent that the defendant no. 1 is an account holder with the plaintiff and he withdraw the amount of Rs. 1.10,000/- out of the amount of Rs.1,33,953.12 paise credited against the cheque which was honoured when deposited and the contents of the rest of the para are wrong and hence denied. It is specifically denied that the defendant no. 1 availed the temporary draft by withdrawing the amount. It is averred that the defendant withdrew the amount against the cheque which was honoured. The defendant no. 1 is not the borrower, he withdrew the money against the cheque which was honoured and the money was credited in his account. The defendant never requested the plaintiff for temporary draft. The plaintiff should have taken necessary action against the defendant no. 2 for the misappropriation of the money. 18 It is specifically denied that the defendant no. 1 ever made assurances and promises to the plaintiff to pay back if the cheque was dishonored.
19 It is specifically denied that the defendant withdrew the amount of Rs. 1,10,000/- as temporary overdraft. The above said cheque was Dena Bank Vs. Satender Singh Page 6/14 Suit no. 379/10 honoured and the amount was credited in the account of the defendant no. 1. Even the plaintiff has mentioned in the letter that the defendant has withdrawn Rs. 1,10,000/- up till 10.04.2008 from his account and thus there is no question of presenting the same cheque which is alleged to have been returned dishonoured on 14.06.08. It also seems very strange on the part of the plaintiff that till 10.04.08 it was not aware of its even though the defendant no. 1 continuously transacted with the bank by depositing and withdrawing money from his account.
20 It is specifically denied that the plaintiff informed the defendant no. 1 about the non payment and the return memo and that the unpaid advise was handed over to the defendant. The defendant had never assured the plaintiff to repay the said amount.
21 It is averred that the officials of the plaintiff never visited the defendant neither the defendant promised or assured to pay back the money nor the officials were requested by the defendant no. 1 to present the said cheque again. However, some person visited the defendant and threatened him to deposit the said amount in bank otherwise, he will be implicated in false criminal cases of forgery.
22 The plaintiff did not try to bring the fact of the dishonor of cheque to the knowledge of the defendant no. 1 for a long period for the reasons best known to it. The defendant no. 1 continued transactions with the bank and he deposited various amounts in his account and withdrew the same but the same was never objected to by the plaintiff nor the money deposited debited against the alleged erroneous credit of Rs. 1,33,000/-. If the cheque was dishonored the plaintiff might have stopped withdrawal of amount and payments to the defendant and could have taken action against Dena Bank Vs. Satender Singh Page 7/14 Suit no. 379/10 the defendant no. 2 and informed the defendant no. 1.
23 The plaintiff is not entitled to recover the amount from the defendant no. 1 as the amount was not withdrawn as overdraft or illegally but that was withdrawn against the cheque which was honoured and the money was credited in his account. The defendant cannot held liable for the plaintiff's own his own mistake or fault, rather the plaintiff might have taken or should have taken appropriate action against the person directly or remotely concerned with the misappropriation or malpractices. 24 It is averred that cause of action never arose at any moment of time. It is further averred that the present suit has been filed by the plaintiff against the defendant no. 1 to harass him on frivolous, false and concocted facts and is liable to be dismissed without any cause of action. 25 On the basis of the pleadings of the parties, following issues were framed vide a order dated 11.07.2011:-
1. Whether the defendant has obtained any overdraft facility against the deposit of cheque ? OPP
2. Whether the plaintiff is entitle to the relief of recovery of Rs. 1,22,245.88 from the defendant alongwith pendente lite and future interest as prayed for ? OPP
3. Relief.
26 Both the parties have led their respective evidence. The plaintiff examined Sh. G. R. Meena, Senior Manager as PW1. The witness exhibited the Power of Attorney in favour of the then Senior Manager Sh. B. L. Meena. The saving account opening form of the defendant was exhibited as Ex.PW1/2. The cheque bearing no. 10373 dated 25.02.2008 and the original cheque deposit slips were exhibited as PW1/3 and PW1/4. The withdrawal slips for Rs. 1,10,000/- are exhibited as PW1/5 to PW1/7. The original cheque returning memo was exhibited as PW1/8. The letter dated 03.07.2008 sent to Dena Bank Vs. Satender Singh Page 8/14 Suit no. 379/10 the defendant was exhibited as PW1/9. Letter dated 10.07.2008 is exhibited as PW1/10. Reply dated 28.07.2008 by the defendant is Ex.PW1/11. Statement of account, certified as per Bankers Book of Evidence Act is Ex.PW1/12. Second cheque returning memo is Ex.PW1/13. The defendant also entered witness box. No documentary evidence was led by the defendant. Parties addressed oral arguments.
27 Having examined the pleadings and the evidence adduced, I shall now deliver my findings on the issues framed.
28 Issue no. 1: Whether the defendant has obtained any overdraft facility against the deposit of cheque ? Onus of proving this issue was on the plaintiff. The case of the plaintiff is that a cheque was deposited with the plaintiff bank by the defendant on 28.02.2008. Defendant had deposited a cheque and he assured that in case the cheque was dishonoured, the amount shall be deposited by the defendant. Accordingly, the plaintiff credited a sum of Rs. 1,33,000/- in the account of the defendant. The defendant withdrew the amount of Rs. 1,10,000/- out of the said amount. The plaintiff sent the cheque for encashment on 01.03.2008 and the same was returned dishonoured. Defendant no. 1 was informed about the non payment of the cheque and the return memo was handed over to defendant no. 1 on which the defendant assured to repay the amount. A temporary overdraft was credited in favour of the defendant. The defendant again requested the plaintiff to represent the cheque for encashment. However, the cheque returned dishonoured on 14.06.2008. Letters were sent in July, 2008. However, in the cross examination, the witness gave the following answers:-
"The TOD was granted on 2.9.2008. (Answer given after looking up the record.).
Since the cheque was dishonoured and money had Dena Bank Vs. Satender Singh Page 9/14 Suit no. 379/10 been withdrawn, TOD was requested. It is correct that the cheque was deposited on 28.2.2008. The cheque was returned dishonoured on 1.3.2008. The money was withdrawn by the defendant on 10.3.2008 and on subsequent dates. Vol. Inquiry against the concerned officer who had not updated the account/marked the cheque is pending. The defendant was informed in writing about dishonour of cheque on 3.7.2008. The first debit in the account of defendant was made on 16.6.2008. After 16.6.2008 we regularly visited the house of defendant. I had also visited. I cannot tell the exact date of visit to the defendant.
Q What request was made for the over draft by the
defendant to the bank?
Ans. As the cheque of defendant was dishonoured so the verbal request was made to create TOD".
29 On further questioning, the witness makes the following admissions:-
"It is correct that the defendant was not intimated about the dishonour in time. It is correct that the mistake was committed by some employee of the plaintiff.
CQ Whether the cheque drawn on PNB was returned to the defendant after dishonour? Ans. No. CQ How was it represented on 14.6.2008 for encashment?
Ans. I do not know as I was transferred before this date.
CQ Have you filed any pay in slip for the period when the cheque represented on 14.6.2008? Ans. Nothing is on record.
I cannot say whether the bank employees of their own represented the cheque for encashment on 14.6.2008. It is correct I am not aware what was transpired after 4th or 5th of June 2008 as I was transferred. The bank was unaware of the dishonour of the cheque at the time of closing i.e. 31.3.2008"Dena Bank Vs. Satender Singh Page 10/14 Suit no. 379/10
30 The witness, therefore, admitted that even though the cheque was dishonoured on 01.03.2008, the defendant was not intimated about the dishonour in time because of mistake committed by some employee of the plaintiff. In response to a court question, the witness further admitted that the cheque was not returned to the defendant after it was dishonoured. 31 In response to the Court question on whether any pay-in slip used for re-presenting the cheque on 14.06.2008 had been produced by the plaintiff, the witness admits that nothing was placed on record and otherwise pleads ignorance about any pay-in slip on the ground that he was transferred from the branch before the date.
32 The witness also admitted that the money had been withdrawn by the defendant on and after 10.03.2008 as against the balance reflected in his account. Thus, the cross examination of this witness establishes that even though the cheque had been dishonoured on 01.03.2006, the bank had not debited the defendant's account as late as 10.03.2008 and subsequent dates when withdrawal were made i.e. upto 10.04.2008. It is also admitted that the defendant was informed in writing about the dishonour of cheque only on 03.07.2008. The amount was debited for the first time on 16.06.2008. 33 In his examination in chief, the witness has not mentioned any date as to when the defendant was informed about the dishonour of the cheque and the date when the defendant assured the plaintiff to repay the amount. However, in his cross examination, the witness has admitted that the amount was debited for the first time on 16.06.2008 and the bank was unaware of dishonour up till 31.03.2008. Therefore, on preponderance of probabilities, it stands established that defendant was never informed about the dishonour of the cheque up till 03.07.2008. The witness also admitted Dena Bank Vs. Satender Singh Page 11/14 Suit no. 379/10 that the cheque was not returned to the defendant on being dishonoured. In that view of the matter, the Court can only draw one conclusion that the cheque was re-presented by the plaintiff all by itself for encashment on 14.06.2008 without informing the defendant. This conclusion is fortified by evasive replies given to the court questions on filing of pay-in slip etc. at the time of re-presentation of cheque on 14.06.2008.
34 The witness has also further volunteered during his cross examination that an inquiry has been initiated against the concerned bank official who had not updated the account and marked the cheque as pending. In my view, in the face of these admissions, it cannot be believed that any temporary overdraft was credited on 22.09.2008 that too when in his reply dated 28.07.2008 Ex.PW1/11, the defendant had already challenged the claim of the plaintiff raised in the legal notice dated 10.07.2008, Ex.PW1/10. 35 Surprisingly, there is a material difference in the averments made in the legal notice and in those made in the plaint. The plaint no where mentions that the amount had been credited in the defendants account by mistake or inadvertence whereas the legal notice dated 10.08.2008 reads as follows:-
"The said cheque was returned unpaid from Punjab National Bank, Nizammuddin Branch with the reasons "in sufficient funds" on 01.03.2008 and 14.06.2008 but, however, due to inadvertence the said amount has not been debited into your account".
36 Therefore, the case as pleaded in the plaint is not in consonance with the legal notice and same is also not in consonance with the admissions made by the witness in his cross examination. The Evidence Act allows full effect to be given to circumstances or conditions of probability or improbability. While deciding an issue of fact the Judges are bound to call Dena Bank Vs. Satender Singh Page 12/14 Suit no. 379/10 into aid their experience in life and can test the evidence placed before them on the basis of probability and improbability. Reliance is placed on the decision in Gopeshwar Dutt vs B. Dutt XVI CWN 265 and Chaturbhuj Pande vs Collector, Raigarh AIR 1965 SC 255. In order to appreciate the evidence of the parties the court has to consider the weight which can be attached to the testimony of any particular witness. The demeanor of witness, the consistencies and inconsistencies in the stand of the witness/party, as well as, any improvements made by a party to the litigation during the course of the trial, etc. are relevant factors which have to be kept in mind while appreciating evidence. In my view, the evidence of the plaintiff's only witness is full of contradictions and fails to prove the case of the plaintiff on the yardstick of probabilities. The contradictory nature of the evidence also puts a question mark on the credibility of the testimony of the witness, PW1. His evidence by way of affidavit is therefore, liable to be rejected in view of the admissions made in the cross examination.
37 The defendant has denied visits by the bank employees to his residence before 03.07.2008. The defendant denied the suggestion that he had requested for any temporary overdraft. Testimony of the defendant has gone unrebutted. In my view, the plaintiff has failed to prove the averments made in support of the issue no. 1. The plaint makes no mention of any inadvertence or mistake whereas evidence on record shows that the defendant was never informed about the dishonour of the cheque due to inadvertence or malafides. In that view of the matter, the issue is decided against the plaintiff and in favour of the defendant.
38 Issue no. 2: Whether the plaintiff is entitle to the relief of recovery of Rs. 1,22,245.88 from the defendant alongwith pendente lite Dena Bank Vs. Satender Singh Page 13/14 Suit no. 379/10 and future interest as prayed for ? As I have already observed while delivering my findings on issue no. 1 that plaintiff has failed to prove its case as averred in the plaint. It is a settled proposition of law that a party is bound to prove its case as alleged and covered by the issues framed. The principle is borne out from the maxim secundum allegate et probata. It is equally settled that a party should not be allowed to succeed on a case which it has failed to set up except by way of amendment. Reliance is placed upon the decision reported as A. Gangadhar Rao vs. G. Gangarao AIR 1968 AP 291. 39 The plaintiff is guilty of suppressing material facts from this court which have been unearthed during the cross examination of plaintiff's witness. In that view of the matter, the plaintiff is disentitled from claiming any relief from this court and this issue is also decided against the plaintiff and in favour of the defendant. Therefore, plaintiff is not entitled for any relief and suit is liable to be dismissed.
40 Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open Court Harjyot Singh Bhalla, dated 18.10.2011. Civil Judge-1, South District, New Delhi.
Dena Bank Vs. Satender Singh Page 14/14 Suit no. 379/10