Delhi District Court
Canara Bank vs Karan Singh on 30 September, 2013
Canara Bank v. Karan Singh & Others IN THE COURT OF MS. SHREYA ARORA MEHTA, CIVIL JUDGE1, ROOM NO. 3, SAKET COURTS, SOUTH DISTRICT, NEW DELHI In the matter of : Suit No. 412/11 & Counter Claim No.152/12 Case ID No. 02406C0169052011 & 02406C0130492012 Canara Bank, a body corporate incorporated under the Banking Companies (Acquisition and Transfer of Undertaking) Act 1970, having its Head Office at Bangalore, Karnataka.) 9, Community Centre, Gulmohan Enclave, Green Park, New Delhi110049. ....... Plaintiff Versus 1. Karan Singh S/o Late Mr. Hans Raj R/o 165, Main Road Devli, Near Raju Park Bus Stand Delhi110062. Also at: Chaudhary Associates 421, Sainik Farms, Forest Land, New Delhi. 2. Manmohan S/o Late Mr. Shiv Lal R/o 165, Main Road Devli, Near Raju Park Bus Stand, Delhi110062 Also at: Arun Dev Enterprises A27, Ashok Vihar, Sec. 5, Gurgaon, Haryana. ...... Defendants Date of Institution : 08.07.2011 Date of reserving the Judgment : 26.09.2013 Date of pronouncement : 30.09.2013 Decision : Dismissed SUMMARY SUIT FOR RECOVERY OF RS.1,55,526/ (RUPEES ONE LAKH FIFTY FIVE THOUSAND FIVE HUNDRED TWENTY SIX ONLY) ALONG WITH THE INTEREST FROM THE DATE OF FILING Suit No. 412/11 & Counter Claim No.152/12 Page 1 of 19 Canara Bank v. Karan Singh & Others OF THE SUIT TILL THE DATE OF THE REALIZATION UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908 JUDGMENT
1. Vide this judgment I propose to dispose of the suit filed by the plaintiff bank for recovery of outstanding loan amount as well as counter claim filed by the defendant No.1 for recovery of Rs. 1,00,000/ (Rupees One Lakh Only) towards damages.
2. The plaintiff bank has filed the present suit seeking recovery of Rs.1,15,526/ (Rupees One Lakh Fifteen Thousand Five Hundred Twenty Six Only) besides pendente lite and future interest @ 13% p.a from the date of filing of the suit till realization of the decretal amount and cost of the suit. Mr. D. Raja Kumar, Manager of the plaintiff bank is authorized to sign, verify and institute the present suit.
3. It is the case of the plaintiff that defendant No.1 requested the plaintiff bank to grant him credit facility of Rs.4,00,000/ (Rupees Four Lakhs Only) for purchasing Ford Fiesta vide application for loan under Can Mobile Scheme dated 13.01.2007. It is stated that the defendant No.1 was sanctioned the credit facility for Rs.4,00,000/ (Rupees Four Lakhs Only) by the plaintiff bank on account bearing no. 0350603000028 and the loan amount was disbursed to the defendant No.1 on 16.01.2007. As per terms and conditions, the loan was repayable in 60 monthly installments of Rs. 8,800/ (Rupees Eight Thousand Eight Hundred Only) each.
Suit No. 412/11 & Counter Claim No.152/12 Page 2 of 19Canara Bank v. Karan Singh & Others
4. It is further averred that defendant no.1 executed Can Mobile Agreement dated 16.01.2007 whereby the defendant No.1 agreed that the minimum rate of interest shall be 11% p.a., compounded quarterly calculated on the balance in the account and if the interest is not paid, the same shall become compounded with the principal balance outstanding in the account, on such balance and on such successive balances. It is further stated that the defendant No.1 further agreed that in the event of default in payment of any one or more installments, the defendant No.1 shall be liable to pay penal interest at overdue rate of 2% p.a. above the rate of interest charged on the advance from the date of such default till clearing of the account. The defendant No.1 also executed a Letter of Undertaking dated 16.01.2007.
5. It is further averred that the defendant no.2 is the Guarantor and a Guarantee Agreement was executed between the defendant No.1 & 2 and the plaintiff on 16.01.2007 whereby the defendant No.2 had agreed to indemnify the plaintiff bank against all loss and to pay and to satisfy the plaintiff on demand the 'General Balance' due from the defendant No.1 provided that the total liability ultimately enforceable against the defendant No.2 shall not exceed Rs.4,00,000/ (Rupees Four Lakhs Only) plus interest with minimum of 13% p.a. or at such rate as may be specified.
6. It is further averred that defendant No.1 also executed a letter dated 16.01.2007 authorizing the plaintiff bank to debit a sum of Rs.8,800/ (Rupees Eight Thousand Eight Hundred Only) Suit No. 412/11 & Counter Claim No.152/12 Page 3 of 19 Canara Bank v. Karan Singh & Others from his OD/CA account bearing no.44817 in the plaintiff bank to the credit of his loan account till the closure of his loan account. The defendant No.1 also executed an Acknowledgement of Debt and Security acknowledging liability of Rs.2,17,938/ (Rupees Two Lakhs Seventeen Thousand Nine Hundred Thirty Eight Only) exclusive of interest from 17.12.2009 @ 13% p.a compounded quarterly on 16.12.2009 and admitting that all the relative documents, agreements, securities and obligation shall remain in force until repayment of the amount due in the account in full is made by him.
7. It is the grievance of the plaintiff that defendant No.1 did not pay the EMIs to the plaintiff bank regularly and the loan account of the defendant No.1 became NPA on 16.11.2010. The plaintiff bank had sent legal notice to the defendants apprising them to pay the balance of the loan amount. The defendant no.1 failed to repay the loan amount along with the interest and thus has not discharged his obligation towards the plaintiff bank. Hence, the present suit for recovery of Rs. 1,55,526/ (Rupees One Lakh Fifty Five Thousand Five Hundred Twenty Six Only) along with interest @ 13% p.a from the date of filing of the suit till realization and costs of the suit.
8. Initially the present suit was filed under Order XXXVII of Code of Civil Procedure, 1908. The leave to defend application was allowed vide order dated 02.12.2011 by my Ld. Predecessor. The relevant portion of the order reads as under:
"Arguments heard on leave to defend Suit No. 412/11 & Counter Claim No.152/12 Page 4 of 19 Canara Bank v. Karan Singh & Others application. ld. Counsel for the plaintiff at the very threshold point out that amounts was payable in 60 installments of Rs.8800/ each w.e.f. February, 2007. A perusal of the statement of account would show that the same has not been prepared on the basis of the EMIs but on the basis of ordinary loan showing the entire amount as outstanding. The Manager for the plaintiff submits that interest was being levied as per the agreement and the calculations are based on EMIs only.
Ld. Counsel for defendant points out that the defendant had deposited a sum of Rs.2,20,000/ by 10th of May, 2007. He submits that in case the amount was payable in EMIs that would be up till June, 2009 approximately and 28 EMIs that would be up till June, 2009 approximately. But by June, 2009 the defendant had paid a further sum of Rs. 45,000/ which would mean that amount for further eight months that would be up till February, 2010 already stood paid and in February on third day of the month, another sum of Rs. 50,000/ was paid by the defendant and another Rs.40,000/ paid in July, 2010. Ld. Counsel has urged that there is no question of the account being irregular when all the alleged EMIs stood paid, in advance, much before they became due. Ld. Counsel argues that in that circumstances there was no occasion for the plaintiff to levy penal interest on the basis of any supposed outstanding EMI which penal interest was being levied right from September, 2007 even when more than 20 months EMIs stood paid in advance by then. He submits that there is a serious fraud and irregularity in maintaining the accounts by the plaintiff bank and the present suit is most vexatious and completely based on false statement of account and averments.
I have perused the record and the statement of account. The submissions of the ld.Counsel for the defendant hereinabove recorded have considerable force. It is seen from the bare perusal of the record that penal interest has been charged from September, 2007 when an amount of more than Rs.2 lakhs stood paid by then. By September, 2007 only seven to eight EMIs of Rs. 8800/ each would have been payable. In my view the statement of account is definitely not in Suit No. 412/11 & Counter Claim No.152/12 Page 5 of 19 Canara Bank v. Karan Singh & Others consonance with the pleadings more specifically para no.7,8 and 10 of the plaint. In that view of the matter, leave to defend is allowed. Defendant may file a written statement within three weeks.
In my view there is a serious lapse in the maintenance of statement of account onpart of the plaintiff bank or in the alternative the pleadings, duly supported by an affidavit, are false. The plaintiff is a Nationalized bank on whom trust is reposed by one and all and a large strata of the society more specifically the poor and the illeterate also rely blindly on an institution such as the plaintiff for dealing with their money. A serious lapse as one that has come to the notice of this Court in this case ought not be ignored.
The Manager of the plaintiff bank who is present in court is directed to file a report after conducting an inquiry and fixing responsibility for the serious lapse. In case it is found out that the avernments made in the plaint are false the court would consider initiation appropriate proceedings for perjury."
9. The defendants then filed a common written statement along with the counter claim on behalf of the defendant No.1.
10.In the written statement it has been averred that the plaint has not been signed or verified by any such person who may have been duly authorized to sign and verify the plaint. Nothing has been mentioned in the plaint as regards any such authority, authorizing the manager to file the suit on behalf of the bank. No resolution which may have been passed by executive committee of the bank authorizing the general manager to further give power of attorney to others or any copy of any such resolution has ever produced. It is further averred that the suit is time barred as the loan have been incurred on 16.01.2007 and the suit has been filed on Suit No. 412/11 & Counter Claim No.152/12 Page 6 of 19 Canara Bank v. Karan Singh & Others 05.07.2011 after the period of 3 years.
11.On merits, it has been averred by the defendants that it was one Mr. Wellington who being an employee/representative of the plaintiff bank contacted the defendant No.1 and insisted him to apply for loan as he was under a duty to achieve some target. He misled and misguided the defendant No.1 and did not disclose the terms and conditions of the loan. He filled in the forms of loan and got some papers signed from the defendants. He also did not inform that the amount was payable on monthly installments and the period in which it was payable. The defendants are not aware of the contents of the loan application. The copy of the loan application attached with the suit shows two dates of 15.01.2007 and 16.07.2007, therefore, it is wrong to loan was incurred on 13.01.2007.
12.The defendants have not denied that the loan was for Rs. 4,00,000/ (Rupees Four Lakhs Only). However submits that the statement of account is wrong, false and frivolous as penal interest has been charged when an advance amount of Rs. 2,00,000/ (Rupees Two Lakhs Only) has already been paid. The defendants further submits that said employee of the plaintiff bank got signed certain forms from the defendant No. 1 and 2 which may have included an alleged can mobile agreement, letter of undertaking, guarantee agreement and letter authorising the plaintiff bank to debit a sum of Rs. 8,800/ (Rupees Eight Thousand Eight Hundred Only) from the account of the defendant.
Suit No. 412/11 & Counter Claim No.152/12 Page 7 of 19Canara Bank v. Karan Singh & Others
13.It is further averred that it is not denied that the loan was payable in 60 monthly installments of Rs.8,800/ (Rupees Eight Thousand Eight Hundred Only) but the defendant No.1 was free to pay the loan amount early in a short period for which he could only be charged interest for such short period. An acknowledgement of debt and security dated 16.01.2009 is wrong and fraudulent. It is further averred that it is wrong to say that the defendant No.1 did not pay any EMI to the plaintiff bank. However, the defendant No.1 rather paid excessive amount more than the installments due. The defendant paid Rs.10,000/ (Rupees Ten Thousand Only) on 17.02.2007, Rs.10,000/ (Rupees Ten Thousand Only) on 17.03.2007, Rs.2,00,000/ (Rupees Two Lakhs) on 10.05.2007 which was sufficient advance installment of more than 28 months. Further, an amount of Rs.9,000/ (Rupees Nine Thousand Only) on 22.08.2008, Rs.11,000/ (Rupees Eleven Thousand Only) on 10.11.2008, Rs.10,000/ (Rupees Ten Thousand Only) on 20.01.2009, Rs.15,000/ (Rupees Fifteen Thousand Only) on 20.03.2009 and Rs.50,000/ (Rupees Fifty Thousand Only) on 03.02.2010. Thus, the plantiff wrongly, mischievously and corruptly kept on charging interest and penal interest as no amount has been deposited. There has been serious fraud and irregularities in maintaining account by the plaintiff bank.
14.It is further averred that this court while granting leave to defend vide order dated 02.12.2011 observed that the statement of account is not in consonance with the pleadings and there is serious lapse in the maintenance of account on Suit No. 412/11 & Counter Claim No.152/12 Page 8 of 19 Canara Bank v. Karan Singh & Others the part of the plaintiff bank and the pleadings supported by an affidavit are false. The court further ordered that the Manager of the plaintiff bank is directed to file a report after conducting an enquiry and fixing responsibility for serious lapse and in case it is found that averments made in the plaint are false, the court would consider initiation of appropriate proceedings for perjury. Thus, the plaintiff is liable for maintaining the fraudulent account and the defendant reserve their rights to institute further proceedings both civil and criminal for damages against the plaintiff.
15.In nutshell, the defendants have denied their liability to pay to the plaintiff bank as worked out by the bank and have also denied the receipt of legal notice.
16.In the counter claim, the defendant No.1 has averred that the defendant No.1 was approached by the plaintiff bank for loan which was sanctioned as detailed in the written statement filed by the defendants. The defendant No.1 paid the amount of monthly installments and made lumpsum payment of Rs. 2,00,000/ (Rupees Two Lakhs Only) on 10.05.2007 which was an advance payment of 25 monthly installments. But, the plaintiff has filed the wrong, baseless and false suit to the insult of both the defendants who are well to do persons having great respect, goodwill, prestige and owner in the society.
17.The defendants filed an application for leave to defend along with proof of payment of installments and proof of advance Suit No. 412/11 & Counter Claim No.152/12 Page 9 of 19 Canara Bank v. Karan Singh & Others payment. This court vide order dated 02.12.2011 observed that the penal interest has been charged from September, 2007 when an amount of Rs.2,00,000/ (Rupees Two Lakhs Only) stood paid by them and the statement of account is not in consonance with the pleadings. Thus, there is serious fraud, mistake and irregularities due to which the defendant No.1 was totally shocked. The defendant No.1 had to face grave situation before the defendant No.2, who became furious with the defendant No.1 as it was defamatory.
18.It is further averred that the plaintiff bank has thus caused irreparable loss, damages and harassment to both the defendants causing defamation, disrespect and insult to the defendants besides mental harassment, trouble and inconvenience by filing a wrong, baseless, false and frivolous suit, due to which the defendants have suffered physically, mentally, financially and socially, for which the plaintiff bank is liable to pay damages/compensation of more than about Rs.10,00,000/ (Rupees Ten Lakhs Only). However, the defendant No.1 seeks to claim only Rs.1,00,000/ (Rupees One Lakh Only) for which a decree is deserved to be passed in favour of the defendant No.1.
19.The plaintiff bank has filed written statement to the counter claim of the defendant No.1 and admits the contention of the defendant No.1 as to the payment of Rs.2,00,000/ (Rupees Two Lakhs Only) on 10.05.2007 and charging of penal interest by the plaintiff bank erroneously. It is stated that in the year 2007 due to the software upgradation to core banking, some Suit No. 412/11 & Counter Claim No.152/12 Page 10 of 19 Canara Bank v. Karan Singh & Others data in the system got corrupted and system automatically charged Rs.9,083/ (Rupees Nine Thousand Eighty Three Only) towards penal interest in the account of the defendant No.1 during the year 28.09.2007 to 16.06.2009. The error was not intentional but due to aforesaid reasons. The plaintiff bank has reaccredited Rs.9,083/ (Rupees Nine Thousand Eighty Three Only) on 15.12.2011 to the account of the defendant No.1. The report of AR dated 27.02.2012 on excess interest charged and the copy of the statement of account of the defendant No.1 after rectification is on judicial record. The suit has been filed because the loan amount of the defendant No.1 became NPA and the rectified statement of account of the defendant No.1 shows an outstanding balance of Rs. 1,57,196/ (Rupees One Lakh Fifty Seven Thousand One Hundred Ninety Six Only) on 15.12.2011. Hence, the plaintiff bank has prayed for disallowing the counter claim of the defendant No.1.
20.Vide order dated 24.08.2012 combined issues were framed in the main suit and the counter claim and reads as under:
1.Whether the plaint has been signed, verified, and instituted by a duly authorized person? OPP
2. Whether the suit filed by the plaintiff is beyond limitation? OPD
3.Whether the defendant is entitled to the decree of counter claim as prayed for? OPD
4.Whether the plaintiff is entitled to recover the sum claimed for in the plaint? OPP
5.Whether the plaintiff is entitled to the interest claimed? If so, at what rate? OPP
6.Relief
21. In order to prove its case the plaintiff bank has examined Mr. Suit No. 412/11 & Counter Claim No.152/12 Page 11 of 19 Canara Bank v. Karan Singh & Others Bhaskara K its manager as PW1. PW1 has deposed on the lines of the plaint and exhibited the power of attorney in his favour as Ex.PW1/A (OSR), loan application as Ex.PW1/C, Can Mobile Agreement dated 16.01.2007 as Ex.PW1/E, Guarantee Agreement along with Guarantee Covering Letter both dated 16.01.2007 as Ex.PW1/F and Ex.PW1/G, letter dated 16.01.2007 as Ex.PW1/H, acknowledgment of debt and security as Ex.PW1/I, legal notices as Ex.PW1/J and Ex.PW1/K, power of attorney in favour of Mr. D. Raja Kumar as MarkA, and statement of account as MarkB.
22. The defendants examined the defendant No.1 as DW1 who deposed on the lines of the written statement and the counter claim.
23. I have heard the counsel for the parties and have given due consideration to the rival contentions and have carefully perused the record. My issuewise findings are as under:
ISSUE NO.1
24. The question to be answered is as to whether the plaint has been signed and verified, and suit instituted by a duly authorized person.
25. The onus to prove this issue was on the plaintiff. In order to prove this issue, PW1 has deposed that Mr. D. Raja Kumar was the manager of the plaintiff bank and was authorised to sign, verify and institute the present suit. The General power Suit No. 412/11 & Counter Claim No.152/12 Page 12 of 19 Canara Bank v. Karan Singh & Others of Attorney executed in favour of Mr. D. Raja Kumar has been marked as MarkA.
26. A perusal of the plaint reveals that the plaint has been signed and verified by Mr. D. Raja Kumar, the then Manager of the plaintiff bank and the stamp of the Canara Bank, Branch Manager has also been affixed. In absence of any challenge to the genuineness of the GPA, I accept the same particularly when it is the document produced by the Bank. Further, considering the fact that Mr. D. Raja Kumar submitted all the bank documents shows that he is a responsible person of the bank otherwise these documents would not have come in his possession. The filing of these vital documents implies that Mr. D. Raja Kumar, the then Bank Manager got authority to file the present suit. (Reliance be placed on United Bank of India v. Naresh Kumar & Ors. AIR 1997 SC 3.)
27. Keeping in view the same, I therefore hold that the suit was validly instituted and has been duly signed, verified by a duly authorised person of the plaintiff bank.
28. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO.2
29. The question to be answered is as to whether the suit filed by the plaintiff is beyond limitation. The onus to prove this issue was on the defendant.
Suit No. 412/11 & Counter Claim No.152/12 Page 13 of 19Canara Bank v. Karan Singh & Others
30. It is the plea of the defendants that the loan was incurred on 16.01.2007 and the suit being filed on 05.07.2011 after a period of three years is time barred.
31. In my view, though the loan was disbursed on 16.01.2007. It was to be repaid in 60 months installments vide loan agreement Ex.PW1/E. The period of limitation i.e. three years would not start from the date of the grant of the loan but from the date when the default was committed in as much as the loan was repayable over a period of many years and in installments. In such a case, the limitation will commence from the date of default/last payment which has been made in the present case on 15.07.2010.
32. Thus, the suit having been filed on 05.07.2011 is within limitation. This issue is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE NO.4
33. The question to be answered is as to whether the plaintiff is entitled to recover the sum claimed for in the plaint.
34. PW1 has exhibited the application for loan under Can Mobile Scheme dated 13.01.2007 as Ex.PW1/C, statement of account as MarkB, Can Mobile Agreement dated 16.01.2007 as Ex.PW1/E, guarantee agreement along with cover letter as Ex.PW1/F and Ex.PW1/G, respectively. PW1 has also exhibited acknowledgment of debt and security as Ex.PW1/I. Suit No. 412/11 & Counter Claim No.152/12 Page 14 of 19 Canara Bank v. Karan Singh & Others Legal notice dated 07.02.2011 to both the defendants as Ex.PW1/J and Ex.PW1/K, respectively. PW1 has deposed that an amount of Rs.4,00,000/ (Rupees Four Lakhs Only) was sanctioned to the defendant No.1 by the plaintiff bank which was payable in 60 monthly installments of Rs.8,800/ (Rupees Eight Thousand Eight Hundred Only) each. PW1 has further deposed that the defendant No.1 has executed an acknowledgment of debt and security as Ex.PW1/I whereof acknowledging his liability of Rs.2,17,938/ (Rupees Two Lakhs Seventeen Thousand Nine Hundred Thirty Eight Only) exclusive of interest from 17.12.2009 @ 13% p.a compounded quarterly on 16.12.2009 and admitted all the relevant documents, agreement, securities and obligations. PW1 has further deposed that as per the statement of account there is an outstanding balance of Rs.1,57,196/ (Rupees One Lakh Fifty Seven Thousand One Hundred Ninety Six Only) on 15.12.2011 which the plaintiff bank is entitled to recover from the defendants.
35. There are two documents on which the plaintiff bank has mainly relied his claim. One is the statement of account marked as MarkB and the other is an acknowledgment of debt and security exhibited as Ex.PW1/I. From the aforesaid set of facts elaborated, it is clear that the plaintiff bank filed one statement of account at the time of filing of the suit and another statement of account when the leave to defend application was allowed. It is pertinent to mention here that the plaintiff bank has marked the statement of account filed at the time of filing of the suit as MarkB and has not Suit No. 412/11 & Counter Claim No.152/12 Page 15 of 19 Canara Bank v. Karan Singh & Others exhibited/marked the new statement of account. The old statement of account marked as MarkB has not been proved in accordance with law since no signature of the bank officer has been appended over it nor any certificate as to the same being duly certified under the Bankers' Books Evidence Act, 1891 has been affixed thereupon.
36. It is an admitted fact that the acknowledgment of debt and security dated 16.12.2009 is on the old statement of account MarkB and after the written statement was filed on behalf of the defendants, the plaintiff bank accepted that the old statement of account was wrong and sought to correct the same. The plaintiff bank then stated that in the year 2007 due to software upgradation to core banking, some data in the system got corrupted and system automatically charged Rs. 9,083/ (Rupees Nine Thousand Eighty Three Only) towards penal interest in the account of the defendant No.1 during the year 28.09.2007 to 16.06.2009 and the bank has reaccredited Rs.9,083/ (Rupees Nine Thousand Eighty Three Only) on 15.12.2011 to the account of the defendant No.1. Thus, the old statement of account marked as MarkB cannot be relied upon. The acknowledgment Ex.PW1/I raised on the old statement of account MarkB although signed can also not be relied upon since the amount mentioned therein is wrong as per the own admission of the plaintiff bank.
37. The new statement of account has not been proved in evidence. Further, it is also not certified under Bankers' Books Evidence Act, 1891 nor contains the signature of any bank Suit No. 412/11 & Counter Claim No.152/12 Page 16 of 19 Canara Bank v. Karan Singh & Others officer. I need not even go into the same since it is a folly on the part of the plaintiff bank for not proving the statement of account in accordance with law.
38. Thus, there is no document on record on which the debt is established and therefore the plaintiff bank has failed to prove the recovery sought for in the present suit.
39. This issue is accordingly decided in favour of the defendants and against the plaintiff.
ISSUE NO.5
40. The question to be answered is as to whether the plaintiff is entitled to the interest claimed. If so, at what rate.
41. In view of my findings on the issue No.4, there arises no question of payment of interest by the defendants since the plaintiff is not entitled to any recovery sought for in the plaint. Issue is decided in favour of the defendants and against the plaintiff.
ISSUE NO.3
42. The question to be answered is as to whether the defendant is entitled to the decree of counter claim as prayed for. The onus to prove this issue was on the defendant No.1.
43. The defendant has sought damages for an amount of Rs.
Suit No. 412/11 & Counter Claim No.152/12 Page 17 of 19Canara Bank v. Karan Singh & Others 1,00,000/ (Rupees One Lakh Only) in his counter claim on the basis of false and frivolous suit filed by the plaintiff causing insult to both the defendants and being defamatory.
44. As noted, the plaintiff bank has committed a mistake in not proving its case. Mistake/error in not proving the statement of account cannot be said to cause mental harassment to the defendant No.1. The defendant No.1 has not proved that how by way of present suit he has been defamed in the eyes of public. No independent witness has been examined by the defendant No.1 in this regard.
45. Thus, it cannot be concluded that the case is frivolous or the same has defamed the defendant No.1. Therefore, I am denying the damages sought for by the defendant No.1 in the counter claim. However, costs of the suit is granted in favour of the defendant No.1.
46. This issue is decided in favour of the plaintiff and against the defendant No.1/counterclaimant.
RELIEF
47. In view the reasons given in the preceding paragraphs, the suit of the plaintiff is dismissed with costs.
48. The plaintiff has no legal right to claim the relief sought for in the present suit on the wrong statement of account and an acknowledgment of debt obtained on wrong statement of Suit No. 412/11 & Counter Claim No.152/12 Page 18 of 19 Canara Bank v. Karan Singh & Others account. The present case is an example showing that how the banks take acknowledgment of debt on wrong statement of account and how customers who are in a weak position are made to sign those acknowledgments and pay the liability thereupon. In view thereof, the defendants are entitled to compensatory costs in terms of Section 35A of the of the Code of Civil Procedure, 1908. In view of the provisions of Sub Section (2) of Section 35A of the Code of Civil Procedure, 1908, the amount of compensatory costs cannot exceed Rs.3000/. I, therefore, in addition to the costs of the suit, also award compensatory costs amounting to Rs.3000/ to the defendants.
49. In view of my findings on issue No.3, the counter claim filed by the defendant No.1 herein is dismissed. No orders as to costs.
50.Decree sheet be drawn accordingly. Thereafter, files be consigned to the record room.
Announced in the open (SHREYA ARORA MEHTA) Court on 30.09.2013 CIVIL JUDGE1 (SOUTH DISTRICT) (Judgment contains 19 pages) SAKET COURTS, NEW DELHI Suit No. 412/11 & Counter Claim No.152/12 Page 19 of 19