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Showing contexts for: temporary overdraft in Canara Bank vs Sh. Jagdish on 11 April, 2016Matching Fragments
4. It is further submitted that a temporary overdraft was created in the said account of the defendant as the defendant had withdrawn excess amount than the cash available. This overdrawn amount was subjected to interest at prevailing rate of lending and in case of non payment, surcharge along with penal interest @ 2 % per annum was to be levied on the outstanding amounts.
5. It is further stated that the plaintiff personally and in writing asked the defendant on various occasions to clear the liability. The defendant assured the plaintiff to clear the liability but failed to keep his assurance. The plaintiff issued a legal notice dated 02.03.2010 calling upon the defendant to clear his liability. Upon receipt, the defendant assured the plaintiff to clear the entire liability, but nothing was done to clear the same. Hence, the account of the defendant was classified as NPA on 01.02.2010. Therefore, the plaintiff has filed the present suit seeking following reliefs:
17. I have considered the contentions of Ld. Counsel and perused the record.
18. The plaintiff has filed the present suit alleging that the defendant had a Saving Bank Account with the plaintiff company and during course of transaction, the cheque bearing no. 161124 issued by the defendant for a sum of Rs. 57,000/ in favour of Sh. Vishnu Kain was presented through clearing on 29.10.2009. The balance in the account of the defendant was not sufficient but on the request of the defendant, the said cheque was cleared after temporary overdraft was created in the account of the defendant. The overdraft amount was to be paid within the limited duration but the defendant failed to make the payment and hence the suit for recovery has been filed. The present suit has been filed on 09.12.2010. The suit has been filed within period of limitation. The power of attorney of Sh. JK Chaudhary has also been filed along with the plaint. Vide Power of Attorney dated 02.02.1993, Ex. PW1/1, Sh. JK Chaudhary has been authorized to file the present suit and take necessary actions for the institution and proceedings of the suit. I agree with the contention of the Ld. Counsel for the plaintiff that there is nothing to show that the suit of the plaintiff is not maintainable. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
19. ISSUE NO. 2 : Whether the plaintiff is entitled to recover a sum of Rs. 67,842/ as prayed for ? OPP.
20. The onus of proof of this issue has been placed upon the plaintiff.
21. Ld. Counsel for the plaintiff has argued that the defendant has failed to bring any material to show that he had closed the account in Mid 2008. The defendant in the written statement has alleged that the fraud has been played upon him. However, no complaint has been filed till date which shows that the defence taken by the defendant is false and only to avoid the payment. It is also submitted that it is for the first time during crossexamination that the defendant has stated that the account was closed in the month of June 2008. However, no such plea was taken by the defendant either in the written statement or in the affidavit. It is argued that the defendant has requested the plaintiff to create temporary overdraft and he is liable to pay the amount.