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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on : 15^thJanuary, 2018

Date of decision :31^stJanuary, 2018

+

RFA 300/2015

M/S ICICI BANK LIMITED

..... Appellant

Through:

Mr. Punit K. Bhalla & Ms. Chetna

Bhalla, Advocates. (M-9810080772)

versus

GURDEV SINGH

..... Respondent

Through:

None.

CORAM:

JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.

1.

Present appeal arises out of judgment and order dated 7^thMarch,

2015 by which the suit filed by Appellant-ICICI Bank (hereinafter ‘Plaintiff

bank’) was dismissed.

Brief Background

2.

Plaintiff bank filed a suit under Order XXXVII of the Code of Civil

Procedure, 1908 (hereinafter, ‘CPC’) for recovery of an amount of

Rs.4,63,982.20 from the Respondent/Defendant (hereinafter, ‘Defendant’).

The allegations in the plaint are that the Defendant applied for and obtained

a credit card from the Bank which was duly delivered. The Bank made

payments to various establishments where the Defendant had used the credit

card and sent monthly credit card statements to the Defendant. The

Defendant was highly irregular in making payments, and despite repeated

reminders, he failed to make payment of the claimed amount. The Plaintiff

bank was thereafter forced to issue a legal notice dated 5^thSeptember, 2013.

3.

Along with the plaint, the Plaintiff bank enclosed the following

documents:



Credit card statements duly certified as per the Bankers’ Books

Evidence Act, 1891 (hereinafter, BBE Act’) for the period from April,

2007 to 27^thSeptember, 2008.



Certified credit card statements for May 2008, July 2008 and August,

2008.



Original ICICI bank application form taken by the Defendant in two

names, his personal name and as the proprietor of M. S. Tours and

Travels, F-299, Sector -40, Noida.



Terms and conditions governing credit card facilities.



Copies of statement of accounts and supporting documents as per the

BBE Act.



Demand legal notice issued by the Bank’s counsel dated 5^th

September 2013.

4.

On 12^thMay, 2014 the Trial Court records that the service report of

the Defendant was received back with the report of refusal. On 2^nd

September 2014, the certified copy of the statement of account was called

for under the BBE Act, which was duly filed by the Plaintiff bank. The suit

was dismissed on 7^thMarch, 2015 on the following grounds:

i.

Only a photocopy of the demand legal notice was filed.

ii.

Dispatch of the demand/legal notice was not shown.

iii.

No witness from the postal department was examined.

iv.

Statement of Account was not proved as per Section 65B of the Indian

Evidence Act, 1872 (hereinafter, ‘Evidence Act’).

v.

The proximity of the date of demand legal notice and the filing of the

suit does not appear to create a cause of action.

vi.

Trial Court does not have jurisdiction.

5.

Along with the plaint, the Plaintiff bank filed certified copies of credit

card statements for various periods ranging from 27^thApril 2007. The

transactions, however, appear to have ended in the statement for the period

from 27^thJune, 2008 to 15^thJuly, 2008. The statement of accounts duly

certified under the BBE Act was also filed at page 81 of the list of

documents. On 7^thAugust, 2014, the Trial Court passed the following order:

“Today, the matter is fixed for further

To come up on 25.08.2014.”

6.

Again on 2^ndSeptember 2014, the Trial Court passed the following

order:

“Certificate U/s 65-B of the Indian Evidence Act

7.

The Plaintiff bank then filed a certificate under Section 65B of the

Evidence Act on 2^ndSeptember 2014, along with a fresh statement duly

certified under the BBE Act, along with copies of the credit card statements

which were sent to the Defendant.

8.

The original credit card application form was on record. A perusal of

the transactions, which have been undertaken by the Defendant, as reflected

in the credit card statement shows that the credit card has been used for

payments of telephone bills, purchase of petrol, restaurant payments,

shopping at Big Bazaar etc. It is quite evident that