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2010 Supreme(Bom) 147
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE V.M. KANADE
Bank of India
Versus
Shashank P. Ingle
SUMMONS FOR JUDGMENT NO.459 OF 2009 IN SUMMARY SUIT NO.604 OF 2003
Decided on : 29-01-2010
Mr. O.A. Das for plaintiff.
Mr. V.P Amin i/b M/s. B. Amin & Co. for defendant.
Headnote:Bombay Regulation Act, 1949 - Section 21 - Civil Procedure Code, 1908, Order XXXVII, Rule 1 - Summary suit for recovery of amount - Credit card used by defendant - Not repaid amount as per terms in spite of repeated demands - Defendant contended that plaintiff not entitled to file suit as summary suit due to non-compliance of provisions of Order XXXVII of Code - Claiming unconditional leave to defend on account of gross delay on part of plaintiff in taking out summons - Held - Defendant not disputed terms and conditions signed by him while issuing card - Not make any request for duplicate statement within three months - Not disputed entries in statement within stipulated period - Cannot dispute correctness of entires - Not entitled to unconditional leave to defend - Suit maintainable as summary suit - Defendant entitled to file written statement subject to depositing Rs. 25,000/- - Summons for judgment partly allowed. - The first question which falls for consideration is whether the suit can be filed by plaintiffs Bank as a summary suit for the purpose of recovery of dues for the use of Credit Card Facility. This Court had an occasion to consider this aspect in the case of Manipur Vasant Kini, 2000 (1) Bom CR 215 (OS) : AIR 1999 Bom 409 and the learned Single Judge of this Court after examining terms and conditions of the contract has observed that the holder of the Card using and signing the voucher/slip at the sellers establishments results in a contract in writing under which an ascertained or liquidated amount becomes due and payable and under the terms and conditions of use of the Credit Card holder has agreed to pay the amount payable on notice being served. If however there is a dispute regarding user of a card that dispute would not be in respect of maintainability of the suit as a Summary Suit but an issue could be raised whether conditional leave or unconditional leave could be granted to the defendants. In view therefore this suit is maintainable as a Summary Suit.
The first objection which is raised by the defendant that the suit is not maintainable as summary suit because the necessary averments are not made in the plaint and in the affidavit in support cannot be accepted.
It is no doubt true that under Order XXXVII, Rule 2 it is incumbent upon plaintiffs to make certain averments in the suit. However even though the said averments are not made and if the relief claimed by plaintiff is maintainable as a summary suit then merely because the said procedure is not followed, defendant would not be entitled to claim unconditional leave to defend on that ground. Moreover the said defect is curable defect and plaintiffs are always be entitled to cure the defect by making necessary averments in the plaint. So far as the second submission of the defendant that the statement of account which is annexed to the plaint is not certified in accordance with the Banker’s Books of Evidence Act and therefore plaintiffs are not entitled to rely on the said documents is concerned this submission cannot be accepted. Plaintiffs are entitled to produce certified copy while filing list of original documents and therefore merely at the stage of hearing of the summons for judgment certified true copy of the entries is produced which are maintained in the Ledger of the Bank with a certificate that such entries were made in the usual and ordinary course of business and the ledger is in the custody of the Bank as certified by the Chief Manager Card Department is in my view sufficient for the purpose of deciding the claim of plaintiffs. The third submission of the defendant is that the statements of account have not been received by defendant and that no inspection was given by plaintiffs and therefore defendant is entitled to get unconditional leave to defend. This submission however cannot be accepted. The defendant has not disputed the terms and conditions which have been signed by him and which are annexed at Exhibit A to the plaint. Condition Nos. 13, 14 specifically state that the card holder must collect original bills at the time of signing charge slips at the Member Establishment and secondly the Bank is under an obligation to give duplicate copy of the statement of account to the card holder on specific request made by the card holder and condition No. 15 states that if no dispute is raised within 60 days from the date of the statement it would be presumed that the card holder accepts the transaction. Admittedly, defendant did not make any request for duplicate statement within three months from the date of receipt and did not dispute the entries in the statement within 60 days from the date of the statement and as such it is now not open for defendant to dispute the correctness of the said entries.
The defendant, in view, is entitled to file his written statement subject to depositing Rs. 25,000/- within six weeks from the date of this order. Summons for judgment is partly allowed in the aforesaid terms and disposed of.
Heard the learned Counsel appearing on behalf of plaintiffs and the learned Counsel appearing on behalf of defendants.
2.Plaintiffs are a Body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act V of 1970 and are carrying on business as Bankers. Defendant availed the India Card Facility from the Plaintiffs -Bank and upon the application made by defendant, plaintiffs issued the India Card bearing No.5420343021822304 to the defendant. As a result of the said Credit Card which was issued, defendant could avail of various services including withdrawal of cash from plaintiffs' different Branches and/or to purchase goods from Member Establishments against the said Card. Defendant, while accepting the Card, had accepted terms and conditions of the said India Card Facility and he had agreed to reimburse/remit the outstanding amount within 15 days of the receipt of the Bills which were prepared by plaintiffs and the said bills were dispatched by 15th of every month to the card holder. According to plaintiffs. According to plaintiffs, defendant used this Card at different Establishments and plaintiffs and defendant were maintaining a mutual and current account. According to plaintiffs, defendant had not repaid an amount of Rs.27,120.21 as per the terms and conditions of the said Facility in spite of repeated demands and reminder from plaintiffs. Accordingly, plaintiffs called upon the defendant to pay plaintiffs Rs. 63,951.96 as on 15/11/2002 together with service charges/interest thereon @ 2.5% per month with monthly rests from 16/11/2002 till payment or realization. Plaintiffs, therefore, filed this summary suit against the defendant for recovery of the said amount.
3.The Summons for Judgment was taken out by plaintiffs, after service of summons. The learned Counsel appearing on behalf of plaintiffs firstly submitted that according to terms and conditions of the said Card, the card holder was under an obligation to collect original bills from Member Establishments at the time of signing the charge slips at the Member Establishment. Secondly, he submitted that the Bank was under an obligation to make available duplicate copy of the statement of account in case of a dispute on card holder's specific request, if such a request was received within three months from the date of usage and thirdly it is submitted that if there is no dispute made by the card holder regarding entries in the statement sent to him within 60 days from the date of the statement, there was presumption that card holder accepts the transaction as per the statement. He submitted that, therefore, upon receiving the statement sent by the Bank, the card holder did not raise any dispute and, therefore, he was liable to pay the amount demanded by plaintiffs. He also invited my attention to the computer statement of the holder of the card which showed details of the usage of the card by the card holder. He also invited my attention to the half monthly statement of the opening and closing balance of the said card. He further submitted that in view of the judgment of this court in the case of Central Bank of India v. Manipur Vasant Kini AIR 1999 BOMBAY 409 in respect of dispute regarding usage of credit card, a summary suit under Order XXXVII Rule 2 is maintainable.
4.On the other hand, the learned Counsel appearing on behalf of defendant firstly submitted that there was non-compliance of provisions of Order XXXVII of the Civil Procedure Code and the averments which are required to be made in the plaint and in the affidavit in support are not made by plaintiffs and, therefore, Plaintiffs are not entitled to file the suit as a summary suit. Secondly, he submitted that statement of account which is annexed to the plaint is not certified in accordance with Bankers' Books of Evidence Act and, therefore, no reliance could be placed on the said statement. Thirdly, he submitted that there is discrepancy in the statement which w
