K RAVINDRA SHETTY Vs. VIJAYA BANK

JUDGEMENT

(1.) This is a defendant's appeal. The present respondent as a plaintiff had instituted a suit against the present appellant in the Court of XII Addl. City Civil and Sessions Judge, Bengaluru ( for short, the 'Trial Court') in O.S. No.8248/2007 for recovery of a sum of '3,20,835.20ps. with interest @ 17% p.a. compounded with monthly interests and for costs. The said suit came to be decreed with costs against the defendant holding that the plaintiff is entitled for recovery of a sum of '3,20,835.24 ps. with interest at the rate of 17% p.a. compounded with monthly interests from the date of suit till realisation. Challenging the said Judgment and Decree, the defendant in the Trial Court has preferred this appeal.

(2.) Summary of the case of the plaintiff in the Trial Court is that the defendant was having a Savings Bank Account No.13509 with it and was operating the same. On 12.12.2003, the plaintiff Bank received a letter along with two cheques one for '3,20,000/- belonging to one Sri B.S. Hussain Beary and another cheque for a sum of '2,67,856/- pertaining to the defendant, along with a letter from Employees Provident Fund Organisation. The plaintiff in the course of business transaction inadvertently and by mistake, on 19.12.2003, credited both the cheque amounts to the account of the defendant instead of the cheque amount of '2,67,856/- alone. As such, the cheque amount to be credited to the account of B.S. Hussain Beary was, by mistake credited to the SB account of the defendant. The defendant knowing the mistaken credit of the said amount of '3,20,000/- which amount was not belonging to him but fraudulently and with an ill-intention withdrew the said amount. When the plaintiff came to know about the said mistake and also about the wrong credit to the SB account of the defendant, it informed the defendant about the mistaken credit and requested and demanded the defendant to remit the same to the bank. In this regard, the plaintiff bank also wrote a letter dated 30.06.2005 to the defendant. The defendant replied to the said letter on 27.07.2007 (appears to be incorrect date), but did not repay the amount. The plaintiff bank on 23.07.2004 reversed the amount from SB account of the defendant as a result of which the SB account of the defendant was showing the debit balance. The plaintiff bank has received in all a sum of '1,82,010/- towards the defendant's account in respect of the amount withdrawn by him. On 28.11.2005, the defendant has acknowledged his liability to pay the amount which is showing the debit balance in his SB account. Thus, the plaintiff got issued a legal notice dated 31.08.2007 to the defendant to his Bengaluru address which came to be returned with a postal endorsement "no such person". However, the subsequent legal notice sent to the residential address of the defendant was duly served upon him. For the said notice, the defendant gave an untenable reply on 19.09.2007. It is the contention of the plaintiff that since the defendant has withdrawn the mistaken credit given to his Savings Bank account for which he was not entitled to and did not repay the entire loan amount, he is liable to pay interest at the rate of 17% p.a. compounded with monthly interests. The plaintiff claims that as on the date of institution of the suit, the defendant was due to it in a sum of '3,20,835.24 ps.

(3.) In response to the summons served upon him, the defendant appeared through his counsel and filed his written statement. In his written statement, the defendant did not deny about he having SB account No.13509 with the plaintiff bank but denied that '3,20,000/- was belonging to Sri B.S. Hussain Beary. He pleaded that he got an intimation from the Employees Provident Fund Organisation regarding payment of two different cheques and therefore both the cheques belong to him and plaintiff has concealed the said fact.