Indian Kanoon - Search engine for Indian Law

4. It is further alleged that defendant operated and utilized the services of plaintiff qua the account. It is also averred that the defendant issued a cheque dated 03.10.06 in favour of M/s. Subu Promoters & Developers for a sum of Rs. 4,10,000/­. The said cheque was received by the plaintiff for clearing but at that time there was credit balance of only Rs.333/­ in the account of defendant. As such the balance was not sufficient to honour the cheque, however on the request of defendant the cheque was paid in clearing by the plaintiff by creating temporary overdraft facility. It is further stated that as a result of payment of abovesaid cheque there was debit balance of Rs. 4,09,667/­ in the account of defendant as defendant availed and utilized temporary overdraft in the account maintained by him with the plaintiff. It is also alleged that temporary overdraft was supposed to be adjusted in a short period but even after lapse of considerable time the debit balance was not adjusted by the defendant. It is also alleged that defendant had been assuring the plaintiff that he would discharge his contractual obligation by adjusting the debit balance, however, till 18.09.07 the same was not cleared. The plaintiff thus vide letter dated 18.09.07 and subsequent letters dated 13.10.07 and 15.01.08 reminded the defendant of its liability. The defendant however, failed to discharge his contractual obligation.

5. It is stated that plaintiff was thus constrained to issue a notice to the defendant through his counsel dated 28.08.09 calling upon the defendant to discharge the contractual obligation. The notice was sent by registered AD and UPC, the defendant avoided to receive the notice however, he was deemed to have been served as the notice sent by UPC was not received back.

6. It is further stated that at the time of institution of the suit a sum of Rs. 4,44,770/­ (Rupees Four Lakhs Forty Four Thousand Seven Hundred Seventy Only) was due and payable by the defendant as per the books of account of plaintiff maintained in the normal and ordinary course of its banking transactions. In addition interest as per the rules applicable in consonance with the directive of the Reserve Bank of India given from time to time was also payable. It is further alleged that plaintiff is entitled to Rs. 7,00,136/­ (Rupees Seven Lakhs One Hundred Thirty Six Only) with pendente lite and future interest @ 17% per annum compounded monthly from the date of institution till realization from defendants jointly and severally. It was also alleged that the temporary overdraft facility was utilized by defendant within territorial jurisdiction of this court. Moreover, defendant resides and work for gain within the territorial jurisdiction of this court, hence this court has the territorial jurisdiction to try the suit.

12. On merits it was denied that defendant was liable to pay Rs.4,10,000/­ (Rupees Four Lakhs Ten Thousand Only) to Subu Promoters & Developers as such defendant did not maintain sufficient balance in his bank account to honour the cheque in question. It was reiterated that the alleged cheque dated 03.10.06 was not issued by defendant. It was denied that the said cheque bears the signature of defendant. It was alleged that the cheque some how fell into the hands of unscrupulous person who in connivance with the officials of plaintiff got it honoured. It was denied that defendant requested the plaintiff to clear the cheque in question and create temporary overdraft facility. It was denied that there was debit balance of Rs.4,09,667/­ as a result of payment of cheque in question in the account of defendant. It was denied that defendant assured the plaintiff that he would clear the debit balance. It was denied that defendant availed and utilized the alleged temporary overdraft facility. The receipt of letters, dated 18.09.07, 13.10.07, 15.01.08, were denied. The receipt of legal notice was also denied. It was also denied that there was deemed service of notice on the defendant. It was denied that plaintiff has cause of action to file the suit. It was also denied that suit was within time. It was prayed that suit be dismissed.

17. In his cross­examination he stated that he was not posted in the concerned branch at the time when defendant opened the account or at the time when the transaction took place. Thereafter, he stated that he was posted in the concerned branch at the relevant time but was not involved in the transaction in question. He further stated that defendant opened an account in the name of Subo Promoters in 2006 with the plaintiff. He further stated that he could not state whether defendant was a privileged customer but defendant could not be termed as a normal customer since he was being accommodated by the bank like the paying the amount of cheque on the same day when deposited. He further stated overdraft facility was not extended to defendant prior to 05.10.06, the transaction in question. He further stated overdraft facility is not extended without request but the procedure to be followed for grant of overdraft facility depends upon the sanctioning authority and clients. He further stated no documentation is required for grant of temporary overdraft facility. He denied that no overdraft could be obtained without proper documentation and procedure. He further stated no documentation or procedure was required for temporary overdraft facility. He further stated that he did not know whether no request was given by defendant for overdraft facility. He further stated no document has been placed on record to show that any request for overdraft facility was made by defendant. He also stated no agreement was entered between the plaintiff and the defendant for overdraft facility. He further stated that the cheque was for sum of Rs.4,10,000/­. He denied that the cheque in question Ex.PW1/2 was a manipulated document and denied that it was not issued by the defendant. He also testified that he could not state whether the cheque in question bears the signatures of defendant without comparing the signatures of defendant on the cheque in question with his admitted specimen signatures available with the bank. He denied that no overdraft facility was availed by the defendant and all documents in this regard placed on record were forged and fabricated. He denied that defendant was not liable for the overdraft facility availed by him. He denied legal notice dated 28.08.2009 Ex.PW1/8 was sent at wrong address. He denied that Mr. Dass had no authority to file the suit. He also stated that defendant had applied for home loan which was not sanctioned.