Delhi District Court
Uphar Finvest Limited vs Mr. Aas Mohammed Malik on 11 May, 2023
IN THE COURT OF SH. DEEPAK VATS
ACJCUMCCJCUMARC
DISTRICT: SOUTHEAST, SAKET COURTS, NEW DELHI
CS SCJ/334/2019
Uphar Finvest Limited
Having its Office AT
402404, Sheetala House, 7374, 4th Floor,
Nehru Place, New Delhi110019.
.................Plaintiff
Versus
1. Mr. Aas Mohammed Malik
S/o Sh. Sagir Ahmed
H.no. 1610, Street on.20,
Jafrabad, Garhi Mendu,
Near Madina Masjid,4
Delhi110053.
Also AT H.no.C749/A, F/F,
Old No.1610, Gali no.20,
Jafrabad, Garhi Mendu,
Near Madina Masjid, Delhi110053.
2. Mr. Rizwan Malik
S/o Sh. Hakimuddin
H.no. M113, Gali no.5,
Subhash Mohalla, Maujpur,
Seelampur, Delhi110053.
...............Defendant
SUIT FOR RECOVERY OF Rs.51,804/ (RUPEES FIFTY ONE
THOUSAND EIGHT HUNDRED FOUR ONLY) ALONG WITH
INTEREST
__________________________________________________________________________________________
CS SCJ no.334/2019 Digitally signed
Uphar Finvest Ltd. Vs. Aas Mohd. Malik DEEPAK by DEEPAK VATS
Page no. 1 of 6
VATS Date: 2023.05.11
16:20:18 +0530
Date of Institution : 20.02.2019
Arguments heard on : 06.05.2023
Date of pronouncement : 11.05.2023
JUDGMENT
1. Vide this judgment I propose to dispose of the suit of the plaintiff filed for recovery of Rs.51,804/ alongwith with interest @ 18% per annum till its realization.
2. The plaintiff is a company duly registered with Registrar of the Companies as per provision of the Companies Act, 1956 having its registered office at New Delhi and has been incorporated as Uphar Finvest Limited in 11.07.1996 by certificate of incorporation dated 11.07.1996 and by certificate for commencement of business dated 27.08.1996. The plaintiff company being duly registered as Non Banking Financial Institution with Reserve Bank of India deals in business of leasing and financing the vehicles and consumer durable goods along with the other finance facilities/ personal loan to its clients.
3. It is averred that the defendants approached the plaintiff and availed the facility of finance for the purchase of Honda Activa 3G under the Loan Hypothecation Agreement no.TY02068 dated 17.10.2016 for a sum of Rs.38,000/. Defendant no. 1 was the borrower and defendant no.2 stood guarantor to the aforesaid loan hypothecation agreement. After due execution of necessary documents, the plaintiff released the aforesaid payment under the said agreement vide __________________________________________________________________________________________ CS SCJ no.334/2019 Digitally signed Uphar Finvest Ltd. Vs. Aas Mohd. Malik DEEPAK by DEEPAK VATS VATS Date: 2023.05.11 Page no. 2 of 6 16:20:32 +0530 consolidated cheque no.009753 dated 24.10.2016 drawn on City Union Bank, Janakpuri, New Delhi, in favour of "Absolute Motors, L385 D, Main Mahipalpur Crossing, New Delhi" and the defendant received the above said product from the dealer. Further, it is averred that the payment schedule under the said agreement was on the basis of monthly installment of Rs.3103 x 15 from 22.11.2016 to 22.01.2018. Initially defendant no.1 made certain payments towards monthly installment but later on he violated terms and conditions of the said agreement. It is averred that as on 27.09.2018 the defendants are liable to pay the following amount alongwith interest: Payment starting date 22.11.2016 Closing date 22.01.2018 Scheme (Rs. 3103X 15 months including interest) Rs.46,545/ Payment received until 22.01.2018 Rs.21,721/ Balance due Rs.24,824/ Delay Penalty up till 16.08.2018 as overdue Rs.21,480/ Cheque returning charges 11 cheques Rs.5500/ Total Rs.51,804/ __________________________________________________________________ Despite various requests and reminders defendants failed to clear the outstanding amount/ installments, therefore, plaintiff sent a legal notice dated 27.09.2018 by way of speed post on 03.10.2018 to the defendant for recovery of outstanding amount of Rs.51,804/ but of no avail. Hence, the present suit.
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4. Summons of the suit were served upon the defendant no.2 way of affixation on 13.02.2020 and defendant no. 1 was served on 26.02.2021. Thereafter, defendants failed to appear before the court and were proceeded exparte vide order dt. 25.10.2021.
5. In exparte evidence in order to prove its case the plaintiff got its Authorised Representative Sh. Rajender Singh Yadav examined as PW1. The witnesses reiterated and reaffirmed the facts mentioned in the plaint on oath. Certain documents were also exhibited which are as under : PW1 relied upon Ex.PW1/A which is minutes of resolution dated 28.09.2012, Ex.PW1/B (OSR) which is Power of attorney dated 05.10.2012, Ex.PW1/C & Ex.PW1/D (OSR) which is certificate of commencement dated 27.08.1996 and certificate of incorporated dated 11.07.1996, Ex.PW1/E (OSR) which is copy of NBFC issued by RBI, Ex.RW1/F which is copy of proposal of loan, Ex.PW1/G which is copy of bank statement of City Union Bank, Mark A which is copy of invoice dated 17.10.2016 issued by absolute motors, Ex.PW1/4H which is copy of notice dated 16.08.2018, Ex.PW1/I which is statement of account of plaintiff company, Ex.PW1/J which is certificate U/s 65 B of Indian Evidence Act and Ex.PW1/K which is copy of legal demand notice dated 27.09.2018.
6. Exparte final arguments heard on behalf of plaintiff and record has been carefully perused.
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7. The testimony of PW1 remains unchallenged and unrebutted and I find no reason to disbelieve the same. The documents have been duly proved as per law. The plaintiff has proved the service of legal notice and as the same was not replied, an adverse inference may safely be drawn against the defendant. The suit is filed within the period of limitation and has been proved on the scale of preponderance of probabilities.
8. The plaintiff has also claimed delay penalty/ interest at the rate of 5% per moth amounting to Rs.21,480/ and cheque returning charges of Rs.5,500/. As per Section 74 of Indian Contract Act 1872, where, the contract contains stipulation by way of penalty, the party complaining of the breach is entitled to receive from the party who has broken the contract a reasonable compensation not exceeding the amount so named or the penalty stipulated for. In the present case, claim of interest @ 5 % per month is clearly excessive and as the name of interest (Delay Penalty) suggests the same is in the form of Penalty which is not permissible U/s 74 of Indian Contract Act.
9. In the facts and circumstances of the present case, in the opinion of the court, the ends of the justice would be met if the plaintiff is granted prelitigation, pendentelite and future interest @ 18 % per annum from the date of balance due i.e. 22.01.2018 till the date of recovery. The amount claimed for dishonour of cheque has been mentioned in the loan agreement between the parties and the same appears to be reasonable, hence, the plaintiff is entitled for cheque __________________________________________________________________________________________ Digitally signed CS SCJ no.334/2019 by DEEPAK Uphar Finvest Ltd. Vs. Aas Mohd. Malik DEEPAK VATS VATS Date:
2023.05.11 Page no. 5 of 6 16:20:57 +0530 returning charges of Rs.500/ per cheque amounting to Rs.5,500/. Accordingly, the suit is decreed in favour of plaintiff and against the defendants and following reliefs are granted to the plaintiff:
1. A money decree for a sum of Rs.24,824/ (Rupees Twenty Four Thousand and Eight Hundred & Twenty Four Only) alongwith with prelitigation, pendentelite and future interest @ 18% per annum from the date of balance due i.e. 22.01.2018 till the date of realization of the amount. The plaintiff is also entitled for cheque returning charges amounting to Rs.5,500/.
2. Costs of the suit.
10. Decree sheet be prepared accordingly. File be consigned to record room, after due compliance. Digitally signed DEEPAK by DEEPAK VATS VATS Date: 2023.05.11 16:21:04 +0530 (DEEPAK VATS) ACJcumCCJcumARC (SouthEast) Saket Courts, New Delhi Announced in the open Court On 11th May, 2023 __________________________________________________________________________________________ CS SCJ no.334/2019 Uphar Finvest Ltd. Vs. Aas Mohd. Malik Page no. 6 of 6