Delhi District Court
Branch Office At: vs Sukram Pal on 4 December, 2021
ICICI Bank Limited v. Sukram Pal
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 1420/17
CNR NO.DLCT030029162017
In the matter of :
ICICI Bank Ltd.
Registered Office At:
Landmark, Race Course Circle,
Vadodara - 390 007.
Branch Office At:
2nd Floor, Videocon Tower,
Block - E1, Jhandewalan Extn.,
New Delhi ...PLAINTIFF
VERSUS
Sukram Pal
H.No.D/142, 1st Floor,
Sector27, Noida,
Uttar Pradesh - 201 301
Also at:
C/o S.P. Gautam & Associates
310 Ocean Plaza,
P5, Sector18, Noida,
Uttar Pradesh - 201 301 ...DEFENDANT
Date of institution : 19.04.2017
Date of judgment : 04.12.2021
SUIT FOR RECOVERY OF RS.2,71,395.25/
SUIT NO : 1420/17 Pg 1 of 21
ICICI Bank Limited v. Sukram Pal
JUDGMENT
1. By this judgment I shall dispose of the suit of the Plaintiff for recovery of Rs.2,71,395.25/.
BRIEF FACTS OF THE PLAINT:
2. It is stated in the plaint that the plaintiff is Banking Company and is inter alia engaged in advancing loans under various scheme and categories to its customers. The present suit has been filed through Mr. Gaurav Bhamri who is the duly Authorized Representative of the Plaintiff. The case of the Plaintiff Bank is that in the month of February, 2002, the defendant had approached the plaintiff bank to avail credit card facility from the plaintiff bank and documents were executed by the defendant on 08.02.2002. The credit card limit of the said credit card was Rs.2,15,000/. On such representations and assurances made by the defendant, the plaintiff bank on the written request of the defendant issued a credit card bearing No.4477463504702008 in the name of the defendant which was duly accepted and received by the defendant. It is further alleged that contrary to the assurances and undertaking, the SUIT NO : 1420/17 Pg 2 of 21 ICICI Bank Limited v. Sukram Pal defendant failed and neglected to pay the outstanding amount to the plaintiff bank as per the credit card statements sent to the defendant by the plaintiff bank within the respective payment due dates and consequently interest and other applicable charges were levied on the credit card but the defendant evaded paying the same. The defendant lastly paid an amount of Rs.11,100/ on 18.02.2016 towards part payment of his outstanding dues. As per the statement of account maintained by plaintiff bank, an amount of Rs.2,71,395.25/ is due and payable by the defendant as on 01.03.2017. The Plaintiff Bank issued a legal demand notice dated 28.12.2016 to the defendant calling upon the defendant to pay the entire outstanding dues within seven days of the receipt of the same. It is the grievance of the plaintiff Bank that inspite of the receipt of the notice, the defendant failed to pay and clear the outstanding dues despite the several reminders and requests from the plaintiff bank. In these facts and circumstances the plaintiff Bank has filed the present suit for the recovery of Rs.2,71,395.25/ (Rupees Two Lakh Seventy One Thousand Three Hundred Ninety Five and Twenty Five Paise only). The Plaintiff Bank is also seeking Interest @ 24% per SUIT NO : 1420/17 Pg 3 of 21 ICICI Bank Limited v. Sukram Pal annum from the date of filing of the present suit till realization of the decreetal amount.
WRITTEN STATEMENT OF DEFENDANT:
3. The defendant filed his written statement averring that the contents of para No.1 and 2 are stated to be matter of record and hence needs no reply. The contents of para No.3 have been denied being false, fake and wrong while denying that in the month of February, 2002, the defendant approached the plaintiff bank and expressed his willingness to avail credit card facility from the plaintiff bank or that the plaintiff bank had informed the defendant about all the terms and conditions governing the usage of the credit card issued by the plaintiff bank. In fact, it is submitted that the defendant is the prestigious customer of the plaintiff bank for more than 15 years. Considering excellent track record of the defendant, the plaintiff bank offered him the credit card on privilege basis and on constant insistence of the representative of the plaintiff bank, the defendant agreed for the same simply to oblige her and gave requisite documents to the representative of the plaintiff bank. The contents of para No.4 is stated to be matter of record and hence needs no reply. It is SUIT NO : 1420/17 Pg 4 of 21 ICICI Bank Limited v. Sukram Pal however, submitted that the telecaller of the plaintiff bank had summarized the merits of the credit card on phone and did not explain the terms and conditions of the credit card of the bank. Simply in order to oblige her to achieve her target, defendant signed the blank application form and the representative of the plaintiff bank did not provide sufficient time to go through the terms and conditions of the application form nor provided copies of those documents. Simply signing the blank application form does not mean that the consent has been given by the defendant to the terms and conditions of the credit card of the plaintiff bank. It is submitted that the plaintiff be directed to put strict proof of it. The contents of para No.5 have been denied being false, fake and wrong while denying that on such representations and assurance made by defendant, the plaintiff on the written request of the defendant issued a credit card in the name of defendant. The defendant simply signed the blank application form as per the request of representative of the plaintiff bank without going through the terms and conditions of the plaintiff bank. However, it is not disputed that the credit card has been issued by the plaintiff bank in the name of defendant. The contents of para No.6 have SUIT NO : 1420/17 Pg 5 of 21 ICICI Bank Limited v. Sukram Pal been denied being false, fake and wrong while denying that the defendant failed and neglected to pay the outstanding amount to the plaintiff bank as per the credit card statements sent to the defendant by the plaintiff bank within the respective payment due dates or that consequently interest and other applicable charges were levied on the credit card of the complainant as per procedure. It is the claim of the defendant that defendant has been trapped by the plaintiff bank through its telecallers by concealing true and correct facts/terms and conditions of the said credit card. It was not disclosed by the telecaller that the plaintiff bank shall charge money for the exceeding the limit of the credit card. It was disclosed by the telecaller at the time of offer of the said credit card that in case of non repayment of the dues of the card within the stipulated period of 40 days, the plaintiff bank shall charge a simple interest of 1% per month on the outstanding. The credit limit of the said card was Rs.2,15,000/ and one cannot use the card beyond the credit limit as the system of the plaintiff bank does not permit for the same. In fact, the defendant had used the card within the credit limit but to charging the interest and other charges, the credit limit of the card SUIT NO : 1420/17 Pg 6 of 21 ICICI Bank Limited v. Sukram Pal exceeded resulting which the plaintiff bank charged Rs.500/ as over limit charge + service tax on it. Besides it, the plaintiff bank charged Rs.7,394/ as interest thereon which is more than 3.6% per month interest. This calculation has been reflected in the statement for the month of August, 2013. Immediately the defendant approached to the customer care centre of the plaintiff bank and protested the excessive and unlawful charges as above and rate of interest. Upon this, customer care executive assured the defendant to get the charges waived off and the interest to be charged as per the commitment made by the telecaller i.e. 12% per annum on the outstanding. Thereafter, the defendant kept making payment of the credit card till February, 2016. But when in the month of March, 2016, the defendant observed that the plaintiff bank has not waived off the over limit charges and failed to reduce the rate of interest from 3.6% to 1% per month, the defendant approached to the customer care of the plaintiff bank and lodged his complaint to this effect and requested him to get the over limit charges be waived and interest rate be revised from 3.6% per month to 1% per month but he refused for the same. The plaintiff bank has been levying the above charges/interest SUIT NO : 1420/17 Pg 7 of 21 ICICI Bank Limited v. Sukram Pal since March, 2013 till date. Finding no other way, the plaintiff stopped making payment of the over dues of the credit card in protest to it. The para No.7 of the suit is a matter of record, hence no needs no reply. However, it is submitted that nonpayment of the over dues of the credit card is neither intentional nor deliberate rather it is due to the mis committment, a clever tactic to extort huge money by the plaintiff bank and also due to fraud played by the plaintiff bank with the defendant levying the charges/ interest which was not disclosed to him t the time of offer. Para No.8 is also denied to be false, fake and wrong. It is submitted that defendant has stopped making payment of the outstanding of the credit card bank since March, 2016, just because of the fault of the plaintiff bank. The plaintiff bank has trapped the defendant by concealing the terms and conditions of the credit card and by misrepresentation. It is contended if the true and correct position/ terms were disclosed to the defendant, he would have not preferred to get the said credit card. The defendant had been ditched by the plaintiff bank and despite the repeated requests and reminders to waive off the unlawful charges of over limit/other charges and rate of interest, the SUIT NO : 1420/17 Pg 8 of 21 ICICI Bank Limited v. Sukram Pal plaintiff bank forced to make the entire payment without any kind of waiver from their side. The contents of rest of the paras have been denied in toto.
ISSUES:
4. Vide order dated 10.11.2017, following issues were framed for trial by Ld. Predecessor:
1. Whether the plaintiff is entitled to decree of recovery of Rs.2,71,395.25/, as prayed for?
OPP.
2. Whether the plaintiff is entitled for interest on the suit amount, if so, at what rate and for which period?
3. Relief.
PLAINTIFF'S EVIDENCE:
5. In support of its case, plaintiff has examined PW1 Sh. Gaurav Bhambri, Authorized Representative of ICICI Bank, who tendered his affidavit in evidence Ex.PW1/A. PW1 relied on the following documents:
1. Ex.PW1/1 (OSR) copy of power of attorney,
2. Ex.PW1/2 (colly.) Credit Card Application form.
SUIT NO : 1420/17 Pg 9 of 21 ICICI Bank Limited v. Sukram Pal
3. Ex.PW1/3 (colly.) statement of account.
4. Ex.PW1/4 certificate under Section 65B of Evidence Act.
5. Ex.PW1/5 legal notice dated 28.12.2016.
6. MarkX copy of ID proof of defendant.
7. MarkY postal receipt of legal notice.
DEFENDANT'S EVIDENCE:
6. Defendant examined himself as DW1 whose examination in chief is by way of affidavit Ex.DW1/1. DW1 relied on documents already exhibited as Ex.PW1/2 (colly.) and Ex.PW1/3 (colly.).
7. I have heard the counsel for plaintiff and have perused the record.
Written arguments were also filed on behalf of defendant. Issuewise findings as follows:
ISSUE NO.1 Whether the plaintiff is entitled to decree of recovery of Rs.2,71,395.25/, as prayed for? OPP
8. The present suit is based upon the claim of the plaintiff that defendant had approached the plaintiff and expressed willingness to avail Credit Card facility and agreed to abide by the terms and conditions governing SUIT NO : 1420/17 Pg 10 of 21 ICICI Bank Limited v. Sukram Pal the usage of the credit card, in pursuance of which credit card was issued with a limit of Rs. 2,15,000/ on execution of an Application form on 08.02.2002. Secondly that defendant failed and neglected to pay the outstanding amount within respective due dates and consequently applicable charges and interest were levied. In particular, it is averred that defendant stopped paying after 18.02.2016. In the support of the same, plaintiff has primarily relied upon Ex.PW1/2(Colly.) Application Form and Ex.PW1/3(Colly.) Statement of Account. The statement of account shows the outstanding which is claimed in prayer clause.
Further the last payment in the statement of account reflects on 18.02.2016 which is in consonance with averment in the plaint. At this juncture, it is indispensable to note that defendant has admitted in the written statement the execution of application form and issuance of credit card though it has been averred that the plaintiff bank offered the Credit Card on privilege basis, defendant being a prestigious customer. Further the defendant has categorically admitted in the written statement that he signed the application form. Most importantly, defendant has admitted nonpayment beyond March 2016, though for reasons specified SUIT NO : 1420/17 Pg 11 of 21 ICICI Bank Limited v. Sukram Pal in forthcoming paragraphs of my findings. In short, defendant has admitted:
● Execution of the application form;
● Issue of Credit Card by the plaintiff bank to the defendant ● Signatures on the application form.
● Nonpayment after March 2016.
9. At this stage, it is trite to say that facts admitted by way of pleading or even otherwise need not be proved as per Section 58 of Indian Evidence Act, 1872. Since the above facts have been admitted in the written statement itself, testimony of the plaintiff/Attorney of plaintiff need not be overemphasized.
10. However, simultaneously with such admissions, it is the claim of defendant that the telecaller did not explain the terms and conditions of the credit card and the defendant signed the form simply to oblige the telecaller to achieve her target and he was not given sufficient time to go through the terms and conditions. Particularly, it is alleged that telecaller did not disclose that the plaintiff bank shall charge money for exceeding the limit of the credit card and had told the defendant that a simple SUIT NO : 1420/17 Pg 12 of 21 ICICI Bank Limited v. Sukram Pal interest of 1% p.m. shall be charged on the outstanding amount. It is further averred that instead of 1% p.m. plaintiff charged 3.6% p.m. Before proceeding further, it would be significant to mention that during cross examination, defendant had clearly admitted his signatures at Point A of Ex.PW1/2 i.e., the Application form. When the defendant has admitted execution of the application form, his signatures thereon and nonpayment, the only controversy remains is the rate of interest, charges and fraud/misrepresentation alleged by the defendant.
Therefore, it would be apposite to pause and advert to two legal aspects involved herein.
11. Firstly, Section 91 and 92 of Indian Evidence Act,1872 which incorporate best evidence rule, prohibit oral evidence when the contract between the parties has been reduced into writing except in certain circumstances as mentioned in provisos to Section 92. Indeed, one of the provisos i.e., proviso (1) allows oral evidence to prove facts like fraud, intimidation, illegality, want of due execution etc. Accordingly, defendant is not out rightly barred from leading evidence on misrepresentation or fraud, if any. However, it would be crucial to take into account certain provisions SUIT NO : 1420/17 Pg 13 of 21 ICICI Bank Limited v. Sukram Pal of Indian Contract Act, 1872 as well.
12. Section 17 of the Indian Contract Act which defines 'fraud' includes act of giving suggestion of a fact to be true by a person who knows it to be false and also, act of active concealment of a fact by one having knowledge or belief, both with intent to deceive another party. Besides, Section 18 which defines 'misrepresentation' also includes similar circumstances though without an intention to deceive. It bears repetition to say that in the written statement defendant has stated that telecaller did not disclose terms and conditions and at the same time that interest rate was disclosed as 1%. The intention to deceive is not alleged categorically. Nonetheless, even if such allegation is inferred, it is trite to say that a person asserting a fact has the onus to prove the same as per Section 103 of the Indian Evidence Act, more specifically when other contentions of the other party have been wholly admitted. Having referred to onus of proof, it is also relevant to mention that in the considered opinion of the court the rule of reverse burden of proof as applicable to fiduciary relationships is not applicable here. In Reserve Bank Of India vs Jayantilal N. Mistry, decided on 16.12.2015 it has been SUIT NO : 1420/17 Pg 14 of 21 ICICI Bank Limited v. Sukram Pal reiterated by Hon'ble Supreme Court:
The term 'fiduciary' refers to a person having a duty to act for the benefit of another, showing good faith and condour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term 'fiduciary relationship' is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction/s. The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary, and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary.
13. Reading the above excerpt, it can be deduced that good faith, trust and confidence are inseparable elements in a fiduciary relationship. Here, issuance credit card does not involve any such circumstance rather it is a commercial transaction since it is only a facility wherein a customer uses the card for his own benefit and becomes liable to pay the issuer of the card. Hence, bank cannot be said to be in a position to gain unfair advantage. Accordingly, it is reiterated hereby that the defendant herein SUIT NO : 1420/17 Pg 15 of 21 ICICI Bank Limited v. Sukram Pal had the onus to prove his allegations of fraud/ misrepresentation/ concealment.
14. In the instant suit, defendant has not brought on record anything to show any element of fraud or anything in support his allegations. In this connection, it may also be noted that in the written statement, defendant has mentioned about a complaint to the plaintiff bank for waiver of interest and charges but no corresponding evidence has been produced. Needless to say that this could be the best evidence in support of the allegation of fraud or misrepresentation. Moreover, defendant has not even disclosed details of the telecaller. Besides, it is worth mentioning that allegation of the defendant also alleges concealment by the telecaller. It would be befitting to note Section 19 of the Indian Contract Act, which makes agreements entered on the strength of consent caused by fraud or misrepresentation, voidable. Exception to this section reads as under:
If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the SUIT NO : 1420/17 Pg 16 of 21 ICICI Bank Limited v. Sukram Pal means of discovering the truth with ordinary diligence.
15. Having said that, it would be appropriate to read Ex.PW1/2 with the above exception in the backdrop. The said admitted document at page 14 contains a column in the centre mentioning "service charges per month" wherein a rate of interest of 2.5% is written against the words on Revolving Credit. Besides, even late payment charges have been shown as 15% p.m. Apart from this, at page 17 also a rate of interest of 2.5% can be seen. Evidently, nowhere does the form mentions 1% as rate of interest. Here, it is must to mention that court is conscious as to how the standard from contracts, especially in such cases of banks and its forms, are drafted and operate and indeed majority of times the terms are mentioned in a clandestine manner. Nonetheless, in the present case, the form consists of only two pages and the rate of interest is comparatively quite legible against other terms. Further, it would also be prudent to consider that there seems to be some overwriting on page 17 however, the same does not relate to interest rate or late payment charges which are intact and, the only bone of contention in the present SUIT NO : 1420/17 Pg 17 of 21 ICICI Bank Limited v. Sukram Pal suit. Moreover, at the cost of repetition, I must state that in absence of fiduciary relationship, there was no duty to speak on the part of telecaller and the defendant should have gone through the terms and conditions. Besides, it would be unrealistic to believe the defendant that the telecaller/plaintiff bank did not give sufficient time to go through the terms and conditions on the form, especially in absence of any evidence of the same. Even otherwise, if the contention of the defendant that he is a prestigious customer of plaintiff bank since last 15 years, is taken to be true, the allegation of not letting the defendant read the form rather becomes more unlikely. Further, it does not appeal to common sense and natural course of events that a person can be pressurized to sign such form for a voluntary facility, there and then. Even if it is believed that the defendant actually signed it in a hurry to just oblige the telecaller/executive for achieving her target, it is a negligence on his part instead. Therefore, such allegations of the defendant appear to be mere bald assertions. Ergo, taking all the circumstances together, it can be safely said that the defendant could not establish that his consent was an uninformed one as per law, more specifically since the terms could SUIT NO : 1420/17 Pg 18 of 21 ICICI Bank Limited v. Sukram Pal have been known with ordinary due diligence.
16. Further, to fortify my above findings, I shall note that in fact, interestingly, during cross examination, defendant has himself relied upon the prime documents of the plaintiff i.e., Ex.PW1/2 and Ex.PW1/3. Moreover, he has admitted it again during cross examination that he did not make any payment of credit card as there was an issue of interest charged by the bank.
17. Before concluding, considering again that present agreement can fall under standard form contract, it is deemed fit to consider that there is no averment in the written statement that the terms i.e., the rate of interest or charges were unreasonable or against RBI regulations, though cross examination was somewhat conducted on these lines. However in absence of any claim, mere cross examination does not lend any assistance to the defendant, more so when after admission of substantial claim of the plaintiff, onus shifted upon the defendant to negate the agreement. Therefore, this aspect and appropriateness of rate of interest etc need not be adjudicated.
18. In view of the foregoing discussion, since the defendant has substantially SUIT NO : 1420/17 Pg 19 of 21 ICICI Bank Limited v. Sukram Pal admitted the claims of the plaintiff and could not prove his own allegations, the issue is decided in favour of plaintiff and against the defendant.
ISSUE NO.2 Whether the plaintiff is entitled for interest on the suit amount, if so, at what rate and for which period?
19. On the face of it, the present issue appears to have been framed on relief No.(b) wherein plaintiff has claimed interest @ 24% per annum from the date of filing of the suit till realization of the decreetal amount and not on any prior interest i.e. presuit interest, since the words used in the issue are "interest on the suit amount". This is further fortified by the statement of account Ex.PW1/3 wherein the total outstanding to be paid by the defendant to the plaintiff is Rs.2,71,395.25/ (including interest on the credit) which is the suit amount and has already been claimed under relief No.(a) already decided under issue No.1.
20. It is trite law that as per Section 34 of CPC a court can grant a rate of interest on the principal sum adjudged from the date of the suit till the date of decree as it deems reasonable and is not bound by the interest SUIT NO : 1420/17 Pg 20 of 21 ICICI Bank Limited v. Sukram Pal claimed by the plaintiff. Further, as per the same provision, the future interest i.e. from the decree till realization can be granted at such rate not exceeding 6% per annum except in case of commercial transactions wherein the rate shall not exceed contractual rate of interest, in default at a rate at which moneys are lend or advanced by Nationalized Bank.
21. In view of the above observations, it is considered reasonable to grant interest at the rate of 6% per annum from the date of the suit till realization.
22. Hence, the issue is decided in favour of plaintiff and against the defendant.
RELIEF
23. Accordingly, in view of the above discussion hereinabove, suit of the plaintiff is decreed for a sum of Rs.2,71,395.25/ with costs of the suit along with simple interest @ 6% p.a. (simple) is awarded to the Plaintiff from the filing of the present suit till payment/realization.
24. Decree sheet be prepared accordingly. Digitally signed by HELLY HELLY FUR KAUR FUR
25. File be consigned to the Record Room. KAUR Date:
2021.12.04 16:47:41 +0530 Announced in the open court (Helly Fur Kaur) on 04.12.2021 Civil Judge - 08 (Central)/Delhi SUIT NO : 1420/17 Pg 21 of 21