Canara Bank vs M/S Pick Up Auto Products
2013 Latest Caselaw 5824 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 17th December, 2013

+      RFA 318/2012 & CM No.12925/2012 (of appellant u/O 6 R-17
       CPC).

       CANARA BANK                                             ..... Appellant
                          Through:     Mr. K.K. Nirmal, Adv.

                                Versus

    M/S PICK UP AUTO PRODUCTS                               ..... Respondent

Through: None.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. The appeal impugns the judgment and decree dated 4th February, 2012

of the Court of the Addl. District Judge (Central-07), Delhi of dismissal of

Suit No.147/2010 filed by the appellant Bank for recovery of Rs.3,55,728/-

from the respondent / defendant.

2. Notice of the appeal and of the application for condonation of 73 days

delay in filing of the appeal and of the application for amendment of the

plaint was issued. The said notice was returned back with the report of "no

such company in existence at the address given". Liberty was given to the

appellant/plaintiff Bank to serve the respondent at a fresh address. Vide

order dated 30th July, 2013 the respondent/defendant was permitted to be

served by publication. Such publication has been effected. None appeared

for the respondent/defendant before the Registrar (Appellate) on 27th

September, 2013 and before this Bench on 25th November, 2013 when the

respondent/defendant was proceeded against ex parte, the delay in filing the

appeal condoned, the appeal admitted for hearing and the counsel for the

appellant/plaintiff Bank was heard and the judgment reserved and the Trial

Court record was requisitioned for perusal before pronouncement. The Trial

Court record has been received and perused.

3. The appellant/plaintiff Bank instituted the suit from which this appeal

arises, pleading:-

(a) that the respondent/defendant is a proprietary concern of Shri

H.L. Virmani;

(b) that the respondent/defendant on 19th September, 2002 opened a

current account with the Arya Samaj Road, Karol Bagh Branch

of the appellant/plaintiff Bank with a Temporary Over Draft

(TOD) facility;

(c) that in the routine process the appellant/plaintiff Bank debited

two cheques for Rs.1,04,000/- and Rs.2,17,471/- to the account

of the respondent/defendant by allowing TOD on 4 th February,

2010;

(d) that on account of these debits the current account of the

respondent/defendant was permitted to be over drawn for a sum

of Rs.3,21,471/- as on 31st July, 2010, with interest was

showing TOD of Rs.3,55,728/-; and,

(e) the respondent/defendant did not make re-payment of the TOD

inspite of repeated requests and reminders.

Accordingly, on 10th August, 2010 the suit for recovery of

Rs.3,55,728/- with pendente lite and future interest @ 24 + 2% at monthly

rest from 1st August, 2010 till realization was filed.

4. The respondent/defendant no.1 failed to appear before the Trial Court

also inspite of service by publication and was proceeded against ex parte.

The appellant/plaintiff Bank led ex parte evidence by filing the affidavit by

way of examination-in-chief of its Assistant Manager.

5. The learned Addl. District Judge has vide the impugned judgment

dismissed the suit, finding/observing/holding:-

(i) that though the appellant/plaintiff Bank in the plaint had

pleaded the respondent/defendant to have opened the account

on 19th September, 2002 but the account opening forms proved

in evidence were dated 28th March, 1986 and 29th March, 1986;

(ii) that the appellant/plaintiff Bank in the plaint had not disclosed

the date of grant of TOD facility;

(iii) that in the legal notice issued preceding the suit it was stated

that the respondent/defendant no.1 had on 4th February, 2010

approached the appellant/plaintiff Bank for grant of credit

facility, without disclosing the nature of the credit facility;

(iv) that the appellant/plaintiff Bank had failed to prove grant of

TOD facility to the respondent/defendant;

(v) that mere entries in the statement of account proved to show

withdrawal of Rs.1,04,000/- and Rs.2,17,471/- are not sufficient

to automatically hold that the appellant/plaintiff Bank granted

any such facility to the respondent/defendant; and,

(vi) that the appellant/plaintiff Bank had also failed to prove its

claim for interest @ 24% and 2% per annum with monthly rest.

6. The appellant/plaintiff Bank seeks to correct the date of the opening of

the current account by the respondent/defendant from 19th September, 2002

to 28th March, 1986 and 29th March, 1986. The counsel for the

appellant/plaintiff Bank further states that consequent to the amendment

evidence would be required to be led and for which purpose the appeal be

allowed and the suit be remanded to the Trial Court.

7. I have enquired from the counsel for the appellant/plaintiff Bank as to

what purpose the entire exercise would serve as the respondent/defendant is

not available at the address in the records of the appellant/plaintiff Bank and

the appellant/plaintiff Bank is not aware of the whereabouts of the

respondent/defendant and how the decree even if were to be ultimately

passed in favour of the appellant/plaintiff Bank will be executed.

8. The counsel for the appellant/plaintiff Bank states that the

appellant/plaintiff Bank being a scheduled bank, cannot on its own write off

the debts without obtaining a decree therefor.

9. I have perused the affidavit by way of examination-in-chief of the

witness of the appellant/plaintiff Bank. He has though deposed, as in the

plaint, of the respondent/defendant having opened account on 19 th

September, 2002 but proved the account opening forms dated 28 th March,

1986 and 29th March, 1986. He has further deposed of the

respondent/defendant having requested for a TOD facility and of grant of

TOD as pleaded in the plaint and proved the statement of account in proof

thereof. Needless to state that the respondent/defendant being ex parte, the

said deposition remained unchallenged.

10. I see no reason to doubt the version of the appellant/plaintiff Bank.

From the account opening form bearing the signatures of the proprietor of

the respondent/defendant, the factum of the respondent/defendant being a

account holder with the appellant/plaintiff Bank is proved. Similarly from

the statement of account of the said account, the transactions on the basis

whereof the claim is made also stand proved.

11. The learned Addl. District Judge, in my view has taken a

hypertechnical view.

12. Though strictly speaking he may be right in law but it cannot be lost

sight of that the monies of scheduled banks as the appellant/plaintiff Bank is,

are public money and the loss if any to the appellant/plaintiff Bank is the

loss of public monies. It is for this reason only that the Supreme Court in

United Bank of India Vs. Naresh Kumar (1996) 6 SCC 660 had held that

the suit for recovery of money filed by such banks cannot be dismissed on

the technical plea of the authority of the signatory of the plaint having not

been proved.

13. There is absolutely nothing to suggest that the appellant/plaintiff Bank

would file a false case against the respondent/defendant or that its officers

pursuing the said claim have anything to gain therefrom.

14. I do not therefore feel the need to first allow the application for

amendment and thereafter take fresh evidence and all of which would be a

burden on the time of this Court or of the Trial Court and which can be well

spent on other deserving contentious cases and deem it appropriate to allow

the appeal and decree the suit.

15. The impugned judgment and decree is accordingly set aside. The suit

of the appellant/plaintiff Bank against the respondent/defendant is decreed as

prayed. The appellant / plaintiff shall also be entitled to costs of the suit and

this appeal.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J

DECEMBER 17, 2013 pp