BANK OF INDIA Vs. MANOHAR LAL ARYA

JUDGEMENT

(1.) THE plaintiff, a nationalised bank, has filed the suit against the defendant in respect of the user of the credit card issued by the plaintiff in favour of the defendant. It is the case of the plaintiffs that the defendant used the credit card and as on 15th July, 1999 the amount due and payable was Rs. 78,015.80. A legal notice was sent wherein further interest at 2.5% per month was payable from 16th July, 1999 till payment. The amount claimed at the time of filing of the suit was Rs. 88,266.80/- The suit was filed as a summary suit. The defendant has been served. Appearance was put up on behalf of the defendant. Office has raised some objections in respect of the appearance put up on behalf of the defendant. This has been communicated to the Advocate who filed appearance on behalf of the defendant. Copy of the notice sent by Registry of this Court was also intimated to the defendant. Inspite of the above no steps have been taken by the defendant. The plaintiffs thereafter have taken out summons for judgment and have served a copy of the same on Advocate for the defendant. The affidavit of service has been filed and the same is taken on record and marked Exhibit "A".

(2.) THIS being a summary suit and as the defendant has failed to file any reply the question which arises is whether on the facts as pleaded on failure to file reply to the summons for judgment the plaintiffs are entitled to a decree for the amount claimed. In Central Bank of India v. V.V. Kini, A.I.R. 1999 Bom. 409, this Court has taken a view that the summary suit can be maintained in respect of use of a credit card. The suit therefore, as a summary suit is clearly maintainable.

(3.) THE question remains as to what is the interest that the plaintiffs will be entitled from the date of filing the suit. Plaintiffs have served legal notice claiming interest. Considering that there is no arrangement between the parties in respect of the interest the plaintiffs would be entitled to current rate of interest on fixed deposit which can be claimed in terms of the Interest Act. Considering the interest now being charged the plaintiffs will be entitled to 10% interest. Learned Counsel for the plaintiff has drawn my attention to the order passed by another learned Judge in an unreported judgment in Summons for Judgment No.751 of 1999 in Summary Suit No.250 of 1999, Bank of India v. Vogue India P. Ltd. & another, dated 9th March, 2001 wherein the learned Judge of this Court has granted interest at the rate of 2.5% per month. In the case of U.P. Co-operative Federation Ltd. v. M/s. Three Circles, 2000 (3) Bom.C.R. 360, a Division Bench of this Court considering the issue of interest after filing of the suit and there was no provision in the contract or agreement the interest rates of the year 1999 was pleased to Award 12% interest being the interest payable on fixed deposit. It may be mentioned that in both the orders cited before me the issue of interest was not in issue or raised. In fact in Central Bank of India (supra) this aspect was clearly considered and this Court in that judgment held that 2.5% is not interest, but service charges. That being the case the plaintiff cannot now fall back to claim interest at 2.5% per month. Hence the plaintiffs would be entitled to interest on fixed deposit in terms of the judgment of this Court in Municipal Corporation of Gr. Bombay and another v. Kulkarni & Co., and another, 1998 (2) LJ 337 : 1999 (1) Bom.C.R. 269. Considering that the plaintiffs will be entitled to interest at the rate of 10% p.a. from the date of the suit till payment or realisation. As there are no triable issues raised by the defendants plaintiffs are entitled to judgment.