Delhi District Court
Satin Credit Care Network Ltd vs Mr. Vijay Kumar Aggarwal on 27 January, 2011
IN THE COURT OF MS.CHHAVI KAPOOR
CIVIL JUDGE05 (W): WEST DISTRICT
TIS HAZARI COURTS: DELHI
Suit No. 656/10
Unique ID No. 02401C0246192006
Satin Credit Care Network Ltd,
Having its registered office at
306,Lusa Tower, Azadpur Commercial Complex,
Delhi 33 Through its authorized representative,
Mr. Rajan Sabharwal, officer (Legal and Secretarial) .......Plaintiff
Versus
1 Mr. Vijay Kumar Aggarwal,
FD 35, Vishal Enclave,
Pitam Pura, Delhi 34
Also At
C/o Unique Deep Store,
Shop No.2, DDA Market, Aminabai
Pitam Pura, Delhi.
2 Mr. Raju Lodh,
S/o Sh. Ram Prasad,
169, Nahar Pur Village
Also at
C/o M.S. Drycleaner,
Shop No. 1, DDA Market, Aminabai,
Pitam Pura, Delhi 34 .......Defendants
Date of Filing :27.03.2006
Date on which order has been reserved : 02.12.2010
Date of pronouncement of Judgment :27.01.2011
Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 1/9
JUDGMENT
Plaintiff has filed a suit for recovery of an Amount of Rs.9,680/ against the Defendants. Facts in brief necessary for disposal of the suit are as under: Plaintiff is a company duly registered under Provisions of the Companies Act, 1956 having its Registered Office at 306, Lusa Tower, Azadpur Commercial Complex , Delhi. The Defendants had approached the Plaintiff company for a loan amount of Rs.33,600/ consequent to which a Loan Cum Hypothecation Cum Guarantee Agreement No. B8049 dated 14.02.2003 for a sum of Rs.33,600/ for purchase of Gen Set Make "Genex 1200" was executed. Defendant No. 1 was the main borrower and the Defendant No. 2 stood as guarantor to the said loan amount. The said agreement stipulated for repayment of the loan amount in 300 daily installment of Rs.112/ each. Payment under the said agreement was released to the Defendant vide Cheque No. 603919 dated 09.04.2003 drawn on Andhra Bank, Connaught Circus, Delhi in favour of "Sethi Sales", at D 423, Padam Extension, Sector 7, Dwarka, New Delhi for a sum of Rs.31,075/ only. Defendant No. 1 was irregular in making timely payment of the installments and after making a payment of Rs.27,600/ till 06.02.2004, he stopped making any further payment to the Plaintiff. After repeated reminders and requests , the Defendants executed a Promissory Note on 31.01.2004, thereby acknowledging their outstanding liability. However, despite all the efforts of the Plaintiff, the Defendants failed to discharge their dues and, therefore, legal notice dated 24.08.2004 was served upon them but to no avail. Thus, the present suit for recovery of outstanding amount of Rs.9,680/ has Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 2/9 been filed against the Defendants claiming that they are jointly and severally liable for the same.
Defendant No. 1 was duly served by way of publication to which no appearance was filed by him and, therefore, by way of order dated 18.10.2007, Defendant No. 1 was proceeded with ex parte.
Claim as set up by the Plaintiff has been contested by the Defendant No.
2. Averments made in the plaint have been vehemently denied by the Defendant No. 2. He has admitted to the agreement dated 14.02.2003 stipulating the repayment of the loan amount in 300 equal installments of Rs.112/ each. However, Defendant No. 2 has claimed that the fact of defaults by Defendant No.1 in timely payment of the said installments was never communicated to him. He has further stated that since his liability was restricted to the payment of Rs.112/ per day by the Defendant No. 1, the subsequent act of the Plaintiff in accepting an installment of Rs.110/ per day as it apparent from the statement of account relied upon by the Plaintiff had resulted in a new agreement between the Plaintiff and the Defendant No.1 for which no consent had been accorded to by him. Defendant No. 2 has further claimed that the Promissory Note dated 31.03.2004 has been forged and fabricated and that the present suit has been filed by the Plaintiff in collusion with the Defendant No. 1. Defendant No. 2 has thus claimed that the suit is without any cause of action against him and, therefore is liable to be dismissed.
Replication to the Written Statement of Defendant No.2 has been filed whereby the Plaintiff has vehemently denied the averments made thereto. He has further reiterated the averments made in the plaint and has relied upon Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 3/9 clause 33 (d) of the Loan Agreement dated 14.02.2003 by virtue of which the lender was authorized to vary the terms on which loan was to be granted to the borrower without giving any prior notice of the same to the guarantor.
On the basis of the pleadings of the parties, following issues were framed on 18.03.2008:
(i)Whether the Plaintiff is entitled to decree for a sum of Rs.9,680/ as prayed?OPP
(ii)Whether the Plaintiff is entitled to pendentalite and future interest @24% p.a as prayed?OPP
(iii)Whether the suit is liable to be dismissed for not disclosing any cause of action?OPD
(iv)Whether the suit is liable to be dismissed in view of preliminary objection No.3?OPD
(v) Whether the suit is based on fabricated and manipulated documents?OPD
(vi)Relief Plaintiff examined only one witness namely Sh. Shyam Sunder (PW1). This witness proved the following documents; Company Resolution dated 30.07.2008; Ex. PW 1/A, Loan Cum Hypothecation Cum Guarantee Agreement No. B 8049, dated 14.03.2003; Ex. PW 1/B, Bill No. 1551 dated 14.03.2003 to the tune of Rs.31,200/ Ex. PW1/C , Promissory Note dated 31.03.2004; Ex. PW 1/D, Balance confirmation note dated 31.03.2004; Ex.PW 1/E, Postal receipts, UPC and AD cards in lieu of service of letter dated 27.02.2004; Ex. PW 1/F (Colly) , statement of A/c ; Ex. PW 1/G, Legal Notice dated 26.08.2004, Ex. PW 1/H, Extract of company resolution dated 15.06.2000 is Ex. PW 1/X. Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 4/9 Power of Attorney dated 21.08.2008 authorizing PW 1 is Mark A. Copy of Certificate of Incorporation of Plaintiff company; Mark B and Registration Certificate issued by RBI ; Mark C. PW 1 has corroborated the facts set up in the plaint.
No evidence was led by the Defendant No. 2 despite been given an opportunity for the same.
I have gone through the record and have heard arguments advanced on behalf of the Plaintiff and Defendant No. 2. My Issue wise findings are as follows: Issue No. 1:
Burden to prove this issue lay on the shoulders of the Plaintiff. His claim to the suit amount i.e an amount of Rs9, 680/ is based on an agreement dated 14.02.2003. Same has been proved as Ex. PW 1/B. This agreement has not been denied by the Defendant No.2. He has, however, defended the claim as set up by the Plaintiff by stating that the Plaintiff's continuous act of acceptance of installment to the tune of Rs.110/ instead of Rs.112/ for a period of 300 days, for which he has stood as a guarantor resulted in variation of the terms of the said agreement Ex. PW 1/B. According to the Defendant No.2, same has led to his discharge from his liability towards the Plaintiff in respect of the agreement Ex. PW 1/B. To counter the said plea of the Defendant No.2, Plaintiff has placed reliance upon clause 33 (d) of agreement Ex PW 1/B. Same has been perused by me and is reproduced as under: Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 5/9 " That any time granted to the Borrower or any variance or modification of the terms and conditions relating to the agreement or the neglect or for bearance of the Lender in enforcing payments of any monies due under this Agreement or any other indulgence shown to the Borrower shall not release the Borrower of the Guarantor from the several obligations under this Agreement or in any way alter the obligations or Borrower and/or Guarantor hereunder and shall not in any way affect the rights of the Lender in respect hereof. It shall not be necessary upon the Lender to give notice to the Guarantor of any consession or indulgence or variation offered to the Borrower. "
A Bare perusal of the clause 33(d) shows that the lender was not obliged to communicate variations brought about in the terms of the loan agreement to the guarantor. The agreement Ex. PW 1/B clearly stipulated that failing any such notice, the guarantor would still be held liable to the lender for the loan amount. Defendant did not produce any iota of evidence to prove to the contrary. Therefore, his objection and his plea as to his consequent discharge from the agreement can not be sustained. Even otherwise, the provisions of Section 135 of the Indian Contract Act , 1872 stipulate that the parties to a Contract of Guarantee may agree that the Guarantee will not be discharged on variance of terms of the contract. Section 135 of the Indian Contract Act, 1872 Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 6/9 is reproduced as under: "135. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety , unless the surety assents to such contract."
Plaintiff has proved by way of documents Ex. PW 1/G, that the Defendants had failed to clear the outstanding amount as claimed in the present suit despite being given ample opportunities for the same. From the documents placed on record, suit of the Plaintiff appears to be within limitations. Thus, on account of the above, I am of the view that the Plaintiff has been successful in making out a case for recovery of amount of Rs.9,680/from the Defendants.
Therefore, this Issue is decided in favour of the Plaintiff and against the Defendants.
Issue No.2:
Plaintiff has claimed for Interest @24% p.a on the amount of Rs.9680/ as claimed by him in the suit . No evidence was led by him to show that he is entitled to recover the amount of Rs.9,680/ at the said rate of interest. However, keeping in view the prevailing rate of interest, and my findings on Issue No. 1, I deem it proper that the Plaintiff be awarded pendentalite and future interest @12% p.a on the said amount of Rs. 9,680/. Issue is Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 7/9 accordingly decided.
Issue Nos. 3 and 4 are connected and are being dealt by way of a common finding: Burden to prove these Issues lay on the Defendants. They have led no evidence to prove that the suit of the Plaintiff is without any cause of action as has been averred by them. Conversely, in view of my findings on Issue Nos.1 and 2, Plaintiff has been held to be entitled to recovery of amount of Rs.9,680/ .Therefore, Defendants have failed to discharge burden of proof which lay on them and, therefore, Issue Nos. 3 and 4 are accordingly decided against the Defendants and in favour of the Plaintiff.
Issue No. 5:
Burden to prove this issue lay on the Defendant No. 2.Plaintiff has relied upon a pronote; Ex. PW1/D which stipulated that the Defendant No.2 had agreed to pay a sum of Rs.7,520/ to the Plaintiff. The pronote was executed on
31.01.2004 and Plaintiff has proved the same on record by identifying the signatures of the Defendant No. 2 on it. Defendant No.2 has pleaded that document Ex. PW 1/D i.e Promissory Note dated 31.03.2004 has been obtained by forgery and therefore, cannot be relied upon . Burden to prove this allegation lay on the shoulders of the Defendant No.2, but he did not lead any evidence to prove this assertion . His objection as regards admissibility of Promissory Note thus, stands overruled. This Issue is accordingly decided in favour of the Plaintiff and against the Defendant No. 2. Relief: In view of my findings on the aforementioned Issues, suit of the Plaintiff Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 8/9 is Decreed for a sum of Rs. 9,680/a/w pendentlite and future interest @12% p.a on the said amount from the date of filing of the suit till realization. Let a Decree Sheet be prepared accordingly. File be consigned to Record Room. Announced in the open court, today on January 27, 2011 (Chhavi Kapoor) Civil Judge05 (W) THC, Delhi/27.01.2011 Satin credit care network Ltd Vs Vijay Kumar Aggarwal and others 9/9