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2013 DIGILAW 4 (AP)

V. S. Prakasa Rao Yadavilli v. Andhra Bank, Credit Card Centre, Hyderabad

2013-01-02

SAMUDRALA GOVINDARAJULU

body2013
JUDGMENT :- Unsuccessful defendant in both• the Courts below is the appellant in this second appeal. The respondent filed the suit for recovery of money due as per credit card account standing in the name of the defendant. After trial, both the Courts below found favour with the plaintiff and decreed the suit. 2. It is contended by the appellant's Counsel in this second appeal that the defendant went abroad in the year 1999 and returned to India in the year 2001 and that there could not have been a renewal of or revival of previous credit card in his absence. It is further contended that the renewed credit card was not delivered to the defendant and it was sent to the defendant's temporary address which was vacated by the defendant at the time of leaving the country and that the credit card was used by an imposter during absence of the defendant in India. Therefore, the defendant contents that he is not liable to pay the suit amount to the plaintiff-bank. It is contended by the appellant's Counsel that judgments rendered by the Courts below are perverse and that findings of the Courts below are not based on any evidence. These questions are posed by the appellant as a substantial question of law in this second appeal. 3. It cannot be said that findings of the Courts below and more particularly that of the lower appellate Court are based on no evidence. On behalf of the plaintiff, PW 1 was examined and the defendant examined himself as DW1. First of all, there is no evidence by way of filing the defendant's passport showing emigration stamping both in India and in the United States of America, on the defendant leaving the country in the year 1999 and coming back to this country in the year 2001. A certificate said to have been issued by Satyam Computers Limited dated 8.8.2005 is filed as Ex.B1. No supporting documents are filed for proving the contents of the said certificate. A certificate issued by a living person is hit by Section 32 of the Indian Evidence Act. It is no evidence at all unless the person who issued the said certificate is examined irrespective of filing supported documents on the averments contained in the certificate. 4. Insofar as non-delivery of renewed credit card is concerned, the plaintiff filed Ex. A certificate issued by a living person is hit by Section 32 of the Indian Evidence Act. It is no evidence at all unless the person who issued the said certificate is examined irrespective of filing supported documents on the averments contained in the certificate. 4. Insofar as non-delivery of renewed credit card is concerned, the plaintiff filed Ex. A 17 acknowledgment of the defendant for receipt of the renewed card. DWI denies his signature in Ex. A 17. A petition is stated to have been filed in the trial Court for sending EX.A 17 for scrutiny by Handwriting Expert; and the defendant did not choose to pursue the said petition. Except bare denial of signature in Ex.A 17, there is no other evidence relating to it. Both the Courts below after considering evidence on record came to the conclusion that the renewed credit card was acknowledged by the defendant by way of EX.A17. The said finding is one of fact and this Court cannot be expected to disturb the said finding of fact in exercise of power under Section 100 CPC. 5. Exs.A15 and A16 charge slips relate to the period prior to renewal of the credit card, during which period admittedly the defendant possessed the previous credit card and utilized the same. The plaintiff filed EX.A2 certified extract of statement of account of the defendant with the bank. It is contended for the appellant that the said account does not contain certificate in the language required under Section 2-A of the Bankers' Books Evidence Act, 1891. With regard to this objection regarding certificate appended to Ex.A2, the plaintiffs Counsel in the trial Court did not take any objection for marking the same. If objection were to be taken at the trial, then the plaintiff would have an opportunity to produce original account itself. It is contended that Photostat copies of charge slip are filed as Exs.A18 and A19. It is contended that Photostat copies are not admissible in evidence. Copies taken by mechanical process are admissible in evidence as secondary evidence, provided primary evidence is not available. It cannot be said that it is no evidence at all. Exs. A 18 and A 19 are not suit documents as such. They are only supporting documents for EX.A2 to some extent. Even if Exs. Copies taken by mechanical process are admissible in evidence as secondary evidence, provided primary evidence is not available. It cannot be said that it is no evidence at all. Exs. A 18 and A 19 are not suit documents as such. They are only supporting documents for EX.A2 to some extent. Even if Exs. A 18 and A 19 are not on record, still Ex.A2 proves the transactions covered by Ex.A2 statement. 6. It is contended for the appellant that there is fraud in this case as some imposter had utilized the renewed credit card standing in the name of the defendant. The appellant's Counsel tried to make a distinction between a renewal of card and revival of card. The Courts below relied on Condition No.2 of Ex. A 1 credit card application in this case to find that there can be renewal of the credit card even without a formal application for such renewal. It is not the case of the defendant that• he informed change of his temporary address to the bank at the time when he is allegedly left India for. USA, nor the defendant furnished his temporary address to the plaintiff-bank at USA. Even though persons like the defendant who are working on software side take up new assignments in a hasty manner without having sufficient time at their disposal for joining at the new Station, nothing prevented the defendant to inform the bank about the said fact after he settled in his either new job or new place in USA. For persons like the defendant, the permanent address of his birth is parents' place and it has no relevance. Without the defendant taking steps for cancellation of his earlier credit card and when the defendant has not informed his new address to the bank, the defendant cannot now contend that the plaintiff renewing credit card of him which was dispatched to his temporary address mentioned in his application, is not correct. It is immaterial for the plaintiff or for the Court to go into question whether in fact the defendant had utilized the card and incurred liability or whether some other person on his behalf either with authority or without authority used the card and made the defendant liable to pay the debited amounts. In the circumstances, I find that the Courts below committed no error much less legal error in their decisions. In the circumstances, I find that the Courts below committed no error much less legal error in their decisions. I find that the decisions of the Courts below are not based on no evidence much less those decisions are perverse. I find no substantial question of law for decision in this second appeal. 7. In the result, the second appeal is dismissed.