Delhi District Court
Bank Of India vs M/S. N. S. P. Enterprises on 26 February, 2011
:1:
IN THE COURT OF SH SUNIL KUMAR AGGARWAL:
ADDITIONAL DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No.91/10
Bank of India,
A body Corporate constituted and functioning
under the Banking Companies (Acquisition &
Transfer of Undertakings), Act-V of 1970,
having its head office at Star House
Bandra Kurla Complex, Andheri East,
Mumbai, and one of its branches
at Ansari road, Darya Ganj,
New Delhi ...Plaintiff
VERSUS
1.M/s. N. S. P. Enterprises, B-35, DDA Colony, New Jafrabad, Delhi -110053
2. Mr. Naushad Ali, Sole Proprietor B-35, DDA Colony, New Jafrabad, Delhi -110053 ...Defendants Plaint presented on 21.07.2010 E X- P A R T E J U D G M E N T.
1. This suit for recovery has been filed by plaintiff, a Nationalized Bank constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970 through Sh. Arvind Sharma, Senior Manager and Power of Attorney Contd..
:2:holder contending that defendant no. 2 was maintaining current account no. 603220110000314 in the name of its proprietorship concern, defendant no.1 with its at 3- Ansari Road, Darya Ganj, New Delhi Branch. During the course of operation of said account on the request of defendant no. 2 temporary overdraft facility to the tune of Rs. 6,00,000/- was granted by the plaintiff by clearing cheque dated 31.03.2009 drawn by him in favour of M/s. I. F. Cards. The defendant at that time had assured to pay the overdraft amount together with the interest within a short period but he failed to honour the commitment. Plaintiff therefore, got issued legal notice dated 04.06.2010 to him but defendants failed to comply with the same. As per the guidelines issued by Reserve Bank of India and prevailing banking practice, defendants are liable to pay interest @ 16.25% per annum with monthly rests for the period they contumaciously withheld the amount due to the plaintiff. Interest of Rs. 1,30,699/- has accrued at that rate up to 29.06.2009. The defendants are liable to pay further interest till realization of the amount. Therefore, the suit.
2. Summons for settlement of issues were sent to the defendants in ordinary manner as well as through registered post but the same returned with remarks that the addressees are not existing at given address. On repeating the exercise, it transpired that some other concern is operating from the address of defendant no. 1 while defendant no. 2 has left his tenancy premises long ago and Contd..
:3:shifted to unknown place. Plaintiff then moved an application under Order 5 Rule 20 CPC for directing substituted service of defendants having failed in its endeavor to locate them. Finding no other means to serve the defendants, the application was allowed and defendants were served by substituted means of publication in "The Statesman" dated 27.10.10. A copy of the newspaper carrying proclamation was forwarded to the defendants at their last known address through UPC by the publisher and must have been delivered there within one week of posting. None however, appeared on their behalf even on expiry of period stipulated under Order 8 Rule 1 CPC. They have therefore, been proceeded ex-parte on 16.11.2010.
3. In ex-parte evidence, plaintiff has examined Sh.V. S. Mittal, Senior Manager at their Branch at Ansari road, Darya Ganj, Delhi who besides narrating the facts has proved power of attorney in favour of signatory of plaint Ex. PW 1/1, the account opening form Ex. PW 1/2, cheque dated 31.03.2009 Ex. PW 1/3, legal notice Ex. PW 1/4, postal receipts Ex. PW 1/5 and Ex. PW 1/6, UPC slip Ex. PW 1/7, returned envelopes Ex. PW 1/8 and Ex. PW 1/9 and statement of account Ex. PW 1/10. The evidence lead by way of affidavit has formerly been tendered today.
4. I have heard Sh. Amit Gupta, Adv. Ld. Counsel for the plaintiff and carefully perused the record. Suit has been filed within 4 months of grant of temporary overdraft facility hence, is well within the period of limitation. Although, Contd..
:4:original has not been produced by PW1 yet in view of non opposition, the replica of power of attorney Ex. PW 1/1 in favour of Sh. Arvind Kumar Sharma has been accepted on record. The officer otherwise, seems competent as none other could have produced the original bank record and incurred expenses on litigation. He being the Senior Manager, was Principal Officer of plaintiff and therefore, competent to sign and verify the pleadings on behalf of plaintiff under Order 29 CPC. He is thus, taken to be competent to institute the suit on behalf of bank also.
5. Normally, the bank obtains a host of documents executed by the borrower at the time of grant of financial facilities including temporary overdraft but no document in this case was obtained from the defendants! Even a simple letter from the defendants requesting for temporary overdraft and undertaking to discharge the liability within a short time was not obtained. Complete circumstances, under which the cheque Ex. PW 1/3 was cleared by plaintiff seems to have not been placed before the Court. The inadvertence and deliberations on the part of bank officials in this behalf cannot be altogether ruled out. Be that as it may, it is for the higher echelons of plaintiff to put their house in order. The defendants in any case having received benefit of huge amount in the current account cannot continue with unjust enrichment, if so to say. As a law abiding citizen he should have immediately pointed it out to the bank and refunded the amount to bank holding public Contd..
:5:money. Having not done so rather utilizing the amount in commercial transaction, they are liable to make it good with reasonable compensation.
6. The statement of account Ex. PW 1/10 reveals that even prior to the encashment of cheque Ex. PW 1/13, the defendants had availed similar facility by cash withdrawal of Rs. 6,00,000/- on 31.01.2009 which was recouped on 27.03.2009 again by cash.
7. Since there is no agreement between parties regarding rate of interest, bank cannot unilaterally charge it @ 16.25% p.a. and that too at monthly rests on purported Reserve Bank of India guidelines. In view of the law laid down in Union of India Vs. M/s. SEIL Ltd, 127(2006) DLT 611, the simple rate of 9% per annum seems adequate compensation to the plaintiff on the amount withheld by defendants in the facts and circumstances of this case.
8. In view of these findings, suit is hereby decreed in the sum of Rs. 6,00,000/- with interest @ 9% per annum from 01.04.2009 till realization and half cost in favour of the plaintiff and against the defendants. It need not be mentioned that entries in the statement of accounts Ex. PW1/10 shall be caliberated accordingly to reach actual figure of decreetal amount as on date.
Contd..
:6:9. Decree sheet be accordingly prepared. File be consigned to Record Room.
Announced in the open court on 26th February, 2011 (Sunil K. Aggarwal) Addl. District Judge (Central)-10 Delhi.
Contd..
:7: Suit No. 91/1026.02.2011 Present: Sh. V. S. Mittal, Senior Manager of plaintiff with Sh. Amit Gupta, Adv.
None for the defendant.
Defendant has neither appeared nor has submitted written statement within statutory period under Order 8 rule 1 CPC hence they are proceeded ex-parte.
Sh. Mittal has submitted has his affidavit. The same is tendered. He closed ex-parte evidence.
Arguments heard. Vide separate judgment dictated and announced, suit has been decreed in the sum of Rs. 6,00,000/- with interest @ 9% per annum w.e.f. 01.04.2009 till realization and half cost. File be consigned to Record Room.
(Sunil Kr. Aggarwal) Addl. District Judge (Central)-10 Delhi: 26.02.2011 Contd..