Recovery suit in drt
Querist :
Anonymous
(Querist) 17 September 2011
This query is : Resolved
Bank has filed recovery case against us in DRT. The bank has attached bank statement with its application. As per the bank statement the outstanding due against us is 0 (zero). We have taken certified copies of this from DRT.
What is the implication of this?
Is this not an ADMISSION on part of the bank under section 17 of Indian Evidence Act, 1872?
At what stage we should point out this because if we point out this at WS stage the bank may seek permission to submit new statement.
prabhakar singh
(Expert) 17 September 2011
At last stage after conclusion of evidence and at the time of argument.
Querist :
Anonymous
(Querist) 17 September 2011
Thanks for your valuable reply
Advocate. Arunagiri
(Expert) 17 September 2011
The bank statement can be Zero, by mistake also.
What is the fact?
prabhakar singh
(Expert) 17 September 2011
it is certainly by mistake,he simply asked when to point out,in w.s. or at a latter stage.
ajay sethi
(Expert) 17 September 2011
if according to bank no amount is due and payable on what basis application was filed in DRT for recovery of outstanding dues?
Querist :
Anonymous
(Querist) 17 September 2011
The bank statement is copy of computer statement. It is certified as true statement by the bank Manager.
Does the expert Mr. Arunagiri want to suggest that bank will say that their accounting software is faulty? In that case it will raise a much larger issue about the authenticity of bank accounts and dependability of their accounting software?
Querist :
Anonymous
(Querist) 17 September 2011
Dear Mr. Ajay Sethi No doubt the bank has filed a case for recovery of X amount but if the documents on which it has relied for proving its outstanding says the outstanding is ZERO what is the legal position.
I repeat is this not an ADMISSION on part of the bank under section 17 of Indian Evidence Act, 1872?
And as per section 58 of Indian Evidence Act, 1872 ‘Facts admitted need not be proved’
ajay sethi
(Expert) 17 September 2011
well if the bank statement shows that no amount is due and paybale then DRT application will be dismissed
Querist :
Anonymous
(Querist) 17 September 2011
Dear Mr. Ajay Sethi thanks for your prompt & valuable response. The DRT has admitted the application we have not filed our ws. Please advise what is the best course of action for us.
Shastri J.K.
(Expert) 17 September 2011
I agree with mr.ajay sethi.
Raj Kumar Makkad
(Expert) 17 September 2011
You are advised to point out this issue at the very first stage means at the time of filing of written statement because if this is not error then why to go with case for a long time and get it dismissed on this very early stage and if this is error then it can be got rectified at any time and definitely till then you might be burdened with more interest on arrears of loan.
Querist :
Anonymous
(Querist) 17 September 2011
I respect the advice of the expert Mr. Raj Kumar Makkad but I request all the experts to give me legal opinion as per the facts of the case. The bank has done injustice to us. So our objective is to win the case.
I again repeat my query
1. Legally is this not an ADMISSION on part of the bank under section 17 of Indian Evidence Act, 1872?
2. If the bank says it is an error, will the bank admit that their accounting software is faulty? In that case it will raise a much larger issue about the authenticity of bank accounts and dependability of their accounting software?
3. It is not an error will the bank say that the accounts produced earlier were wrong now they are furnishing the fresh accounts. Than the question will arise what is the authenticity that fresh accounts are right.
R.Ramachandran
(Expert) 17 September 2011
I have a very serious doubt that you may be misreading the bank statement.
Further more, what does the pleadings of the bank say. If any annexure is wrongly attached the bank can always seek the permission of the forum and get it replaced. You will not be able to succeed in the case by such flimsy defences. What have you got to say on merits?
Querist :
Anonymous
(Querist) 17 September 2011
It is not any annexure. Under Recovery of Debts Due to the Bank and Financial Institutions Act, 1993; bank statement is the basis to establish the debt. How the bank can replace the bank statement without admitting that their accounting software is not reliable & they do not rely on their own software.
R.Ramachandran
(Expert) 17 September 2011
Dear Anonymous,
For a while ignore the bank statement.
Please state what did the bank plead in the main petition - whether the outstanding balance against you was "Zero"?
Querist :
Anonymous
(Querist) 17 September 2011
Sir
Are you suggesting that whatever is written by the bank in the main petition is gospel truth? They do not even need to corroborate with documents attached. The DRT will pass its order on the basis of bank plaint. The bank need not prove the debt. The onus lies on the borrower to prove otherwise. Is this Act & working of DRT is really that one sided. Please enlighten me with your vast experience.
R.Ramachandran
(Expert) 17 September 2011
Dear Anonymous,
You are a defendant in the case. I understand your position. You will be talking like that.
But, I am an unaffected person in the whole case. I only see the matter.
Never I said what one says either the plaintiff or the defendant is a gospel truth. All I said was there may be contradiction in the main pleadings and the supporting documents. If such things happen, one can definitely rectify either of the mistakes. Law provides for that.
Your point was since according to the supporting document (bank statement) attached with the plaint the outstanding balance is "Zero" the bank does not have a case and whether the court will or ought to dismiss the case.
I was saying that just do not go only by the bank statement, a wrong document might have been inadvertently attached. What does the main plaint states.
You are only looking at the bank statement, without trying to go into what the main petition says. All that I am saying is while you will be able to point out the contradiction between the two, that in itself will not determine the case. The bank will be able to rectify its mistake sooner or later. Therefore, you have to meet the case on merit.
Querist :
Anonymous
(Querist) 17 September 2011
Sir
You also look at the case dispassionately not from the banker’s angle.
Let us see what the bank’s response will be obviously they will say statement is wrong. But for that they will have to admit that their accounting software is not reliable & they do not rely on their own software. That will have serious ramifications for the bank if it is proved that their accounting software is not reliable. If it is proved the accounts maintained by the bank have no authenticity it will have serious repercussions.
Moreover you have not addressed my second question. Legally is the certificate given by the bank is not an ADMISSION on part of the bank under section 17 of Indian Evidence Act, 1872?
Querist :
Anonymous
(Querist) 17 September 2011
Sir
Expert Mr. Prabhakar Singh has suggested that we should point out this at last stage after conclusion of evidence and at the time of argument. Can as per the law bank change its evidence at that stage.
Querist :
Anonymous
(Querist) 17 September 2011
Mr. Prabhakar Singh Sir I need your advice in light of above discussion
prabhakar singh
(Expert) 17 September 2011
While i agree with Mr. Ramachandran,that we should not bank on only this defense,my advise not to disclose it at earlier stage was based on the ground that if we try to point out the error prior to conclusion of evidence ,the bank shall try get it corrected,and we shall lose an arguable point which can have a bearing and may go to the root also,i guess,but have not analysed,if overlooked by the BANK.
The BANKS have been given right to file the extracts of their ledger duly certified by branch manager and a presumption of its correctness is raised by Bankers Book Evidence Act,so being the fact,if we raise it in last hours the BANK would be well surprised and trapped in its own net,this is why i am not convinced by suggestion of Mr. Makkad,which can be followed only when we are eager to compromise.
BUT AT ANY RATE OF THE MATTER IT SHOULD NOT BE A SOLE GROUND TO CONTEST.we must have more defense to contest the suit,not this much alone.
Querist :
Anonymous
(Querist) 17 September 2011
Mr. Prabhakar Singh Sir I thank you very much for your dispassionate legal advice not a moralistic advice. I know I have suffered because of high handed attitude of bank.
Querist :
Anonymous
(Querist) 18 September 2011
I thank all the experts for giving their point of view on the subject. As far as the timing of raising the issue of bank statement is concerned it is resolved with Mr. Prabhakar Singh’s balanced response.
I once again request all the experts to give their opinion on my second issue; Is the certificate given by the bank is not an ADMISSION on part of the bank under section 17 of Indian Evidence Act, 1872?
