Important points
• The bank would be exonerated from the liability in connection with the unauthorised transactions if the customer does not respond to the SMS alerts, SMS alerts cannot be the basis for determining the liability of the customer, for, there would be account holders who may not be in the habit of checking SMS alerts at regular intervals and account holders like the plaintiff in the instant case who is working in an offshore oil rig, who may not be able to access their mobile phones for several days having regard to the peculiarity of their avocation
• The customer shall have no liability at all in the case of third-party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system. The only obligation which casts on the customers of the bank in terms of the circular is that the unauthorised transactions shall be brought to the notice of the bank forthwith so as to enable the bank to block the account.

1. The defendant in a suit for realization of money is the appellant in the second appeal.

2. The plaintiff belongs to Pala in Kottayam District. He is working in a South American country, namely, Brazil. The defendant is a bank. The plaintiff is maintaining a NRE (Non-Resident External) account with the defendant. The defendant has provided net banking and Automated Teller Machine (ATM) services to the plaintiff for operating the said account. As the plaintiff is working in an offshore rig in Brazil, he used to be in India for 28 days after every 28 working days. The plaintiff was in India from 04.03.2012 to 27.03.2012. It is stated by the plaintiff that on 26.03.2012 he noticed that a sum of Rs.2,40,910.36 has been withdrawn from his account though the ATMs located at different places in Brazil between 22.03.2012 and 26.03.2012. The matter was informed by the plaintiff to the defendant forthwith and the ATM card issued to the plaintiff was consequently blocked by the defendant on 26.03.2012 itself. It is also stated by the plaintiff that though complaints have been lodged by him on 27.03.2012 and on 30.03.2012 stating that the withdrawals are unauthorized and requesting the defendant to refund the said amounts, no action, whatsoever, has been taken by the defendant on those complaints. According to the plaintiff, as the withdrawals made from his account were unauthorised, the defendant is liable to refund the amounts involved with interest. The suit is, therefore, for realisation of the said amounts with interest and costs.

3. The defendant contested the suit contending that withdrawals are not possible from the account of the plaintiff without the knowledge of the plaintiff and the defendant is, therefore, not liable for the loss caused to the plaintiff. It was also contended by the defendant that at any rate, since the loss caused to the plaintiff is not due to any action or inaction on the part of the defendant, even if the withdrawals are made fraudulently by third parties without the knowledge of the plaintiff, the bank is not liable for the same. It was, however, admitted by the defendant in their written statement that 14 withdrawals amounting to Rs.2,40,910.36 were made from the account of the plaintiff between 22.03.2012 and 26.03.2012 through the ATMs located at different places in Brazil.

4. The trial court dismissed the suit. However, in appeal, the appellate court reversed the decision of the trial court and decreed the suit. The defendant is aggrieved by the decision of the appellate court.

5. Heard the learned senior counsel for the appellant.

6. The fact that a total sum of Rs.2,40,910.36 was withdrawn from the account of the plaintiff between 22.03.2012 and 26.03.2012 through the ATMs at different places in Brazil has not been disputed by the defendant. Likewise, the fact that the plaintiff was in India from 4.03.2012 to 27.03.2012 is also not disputed by the defendant. The defendant has admitted, by producing Ext.B1 statement of transactions that the plaintiff has withdrawn money from the very same account using the ATM card issued to him from Pala while he was in India on 07.03.2012 and 09.03.2012. Likewise, the fact that the plaintiff has returned the ATM card issued to him by the defendant on 26.03.2012 itself is also not disputed by the defendant. The stand of the defendant all throughout was that money could be withdrawn from the account of the plaintiff only using the ATM card issued by the defendant and the pin number known only to the plaintiff. The case of the plaintiff is that the disputed withdrawals are unauthorised and made without his junction and therefore, the defendant is bound to refund the amounts involved to the plaintiff. The view taken by the appellate court is that in so far as it is established that the disputed withdrawals were unauthorized and made by third parties without using the debit card issued to the plaintiff, that too, through the ATMs in a foreign country, the defend