Delhi District Court
Icici Bank Ltd vs Ritu Malhotra on 3 December, 2021
DLCT010015962020
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (Commercial) No. 290/2020
ICICI BANK LTD.
HAVING ITS REGISTERED OFFICE
AT :
LANDMARK, RACE COURSE
CIRCLE,
VADODARA - 390007
INTERALIA HAVING ITS BRANCH
OFFICE AT :-
E-BLOCK, VIDEOCON TOWER,
JHANDEWALAN EXTENSION,
NEW DELHI - 110 055 .....PLAINTIFF
THROUGH ITS AUTHORIZED
REPRESENTATIVE
MS. NITU SRIVASTAVA
VERSUS
1. RITU MALHOTRA
D/O SH. PUSHPENDER KAPOOR
R/O H. NO. 158, 2ND FLOOR, AVTAR
ENCLAVE,
PASCHIM VIHAR, S.O. WEST,
DELHI-110063 .....DEFENDANTS
2. RAKESH KUMAR PAWA (CO-
APPLICANT/GUARANTOR)
PARTNER OF PAWA ASSOCIATES
S/O SH. KISHAN CHAND PAWA
CS (Comm.) No. 290/20. Page 1 of 12
R/O E-21, GROUND FLOOR, NEAR
MAHARANI
BAGH KALANDI COLONY, SOUTH
DELHI-110025
Date of Institution : 04.02.2020
Date of Reserve of Judgment : 22.11.2021
Date of Judgment : 03.12.2021
JUDGMENT
1. The plaintiff has instituted a suit for recovery of ₹ 5,39,923/- against the defendant on 04.02.2020.
Plaintiff's Case
2. Briefly stated the case of the plaintiff is that it is a body corporate under the provisions of the Companies Act 1956. The suit has been instituted through its authorized representative Ms. Nitu Shrivastava.
3. The defendants approached the plaintiff for grant of loan for the purchase of a vehicle. The plaintiff bank acceded to the request of defendants and sanctioned them two loans. The relevant particulars of the credit facility so sanctioned by the plaintiff to the defendants are as under:
Loan Accounts no. 1. LVDEL00034199953 &
2. LVDEL00034199969 Date of execution of loan 20.02.2016 documents Make and Model of the TRACO 49/TRACO 49 vehicle Registration number of RJ-51GA-0545 vehicle CS (Comm.) No. 290/20. Page 2 of 12 Equated Monthly Installment Rs. 61,462/-
(EMI) (LVDEL00034199953) &
Rs. 28,347/-
(LVDEL00034199969)
Rate of Interest 9.51% for both loan
accounts.
Number of EMIs 47 in both loan accounts.
4. The defendants executed various documents for valuable consideration which included
(i). Credit Facility Application form;
(ii). Deed of Hypothecation;
(iii). Irrevocable Power of Attorney
5. After making certain payments, the defendants defaulted in repayment and therefore, the two loans were recalled vide recall notice dated 16.11.2019 calling upon them to make the payment of outstanding amount. Despite being duly notified, the defendants did not come forward to pay the outstanding amount constraining the plaintiff to institute the instant suit.
6. The plaintiff has prayed that the suit be decreed in the sum of ₹ 5,39,923/- with interest @ 9.51% per annum w.e.f. 03.02.2020 till the realisation of the amount. Costs of the suit has also been prayed for.
Service of the Defendants
7. The process had been sent to defendants and on 17.12.2020 one counsel Mr. Akhil Krishan Maggu entered CS (Comm.) No. 290/20. Page 3 of 12 appearance on behalf of both the defendants. However, on the subsequnt date of hearings none appeared and ultimately vide ordersheet dated 16.09.2021 both defendants were ordered to be proceeded ex-parte. The defendants did not join the proceedings thereafter.
8. Subsequently, on 25.10.2021 an application was moved on behalf of plaintiff bank seeking substitution of its earlier authorized representative Ms. Nitu Shrivastava. The said application was allowed. Accordingly, Mr. Mohit Grover continued further with the proceedings in the suit as AR of plaintiff bank.
Plaintiff's Evidence
9. In its evidence, the plaintiff has examined only one witness i.e. Mr. Mohit Grover, its Authorized Representative, as PW-1.
10. The deposition of PW1 was taken on record by way of his affidavit. After entering the witness box the witness beside proving his affidavit also tendered the following documents in evidence:-
Documents Exhibits
Copy of Power of Attorney dated Ex.PW1/1
25.01.2008
Original preliminary loan application Ex. PW1/2
form
Credit Facility Application Ex.PW1/3
Deed of Hypothecation Ex.PW1/4
CS (Comm.) No. 290/20. Page 4 of 12
Irrevocable power of attorney Ex. PW1/5
Deed of Gaurantee Ex. PW1/6
Original Disbursal Memo Ex. PW1/7
Copy of loan recall notice dated Ex. PW1/8
16.11.2019 alongwith postal receipt Statement of accounts dated Ex. PW1/9 & 23.12.2019 Ex. PW1/9A Certificate under Section 65B of Ex. PW1/10 & Indian Evidence Act, 1872 Ex. PW1/10A Certificate under Section 2A of the Ex. PW1/11 & Banker's Book of Evidence Act, 1891 Ex. PW1/11A
11. The plaintiff evidence was thereafter closed on 25.10.2021.
Arguments
12. I have heard the submissions advanced by Mr. Pradeep Singh, Ld. counsel for the plaintiff.
13. Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
14. The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business.
15. The testimony of the plaintiff's witness has remained unchallenged and un-impugned as the defendant has not CS (Comm.) No. 290/20. Page 5 of 12 come forward to defend the suit despite being duly served.
16. He also submitted that the suit is not only within limitation but there is also no legal impediment which may prevent decreeing the suit in favour of plaintiff.
17. The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
18. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(c) of the Act.
19. The summons which have been sent to the defendants in this case have been the summons for settlement of issues. The summons did not put the defendants on a caveat that in case of their non-appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendants have not come forward to contest the suit and have been proceeded as ex-parte, the plaintiff is still liable CS (Comm.) No. 290/20. Page 6 of 12 to prove its case on pre-ponderance of probabilities.
20. PW- 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents by the defendants on which the cause of action has been founded. On this aspect Ld. Counsel for plaintiff has placed strong reliance on a judgment passed on 31.01.2018 by our own Hon'ble High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similarly placed as the facts in the case under consideration.
21. PW1 has tendered in evidence his Power of Attorney as Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act.
22. The authority to sue on behalf of the plaintiff has been stated in clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
23. One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. CS (Comm.) No. 290/20. Page 7 of 12 Hartar Singh Sandhwa (2010) 10 SCC 512.
24. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship.
25. A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non-appearance, and the Court cannot speculate into the reasons for his non-appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre-ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein, there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
CS (Comm.) No. 290/20. Page 8 of 1226. Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendants had approached the plaintiff bank and executed Ex. PW1/3 seeking a credit facility. The bank acceded to the request and consequent upon the same the defendants executed various loan documents viz. Ex. PW1/3 to Ex. PW1/6. The defendants made various payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of accounts Ex. PW1/9 & Ex. PW1/9A, maintained by the plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books of Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
27. The plaintiff has also served a notice Ex. PW1/8 upon the defendants calling upon them to clear the outstanding in their accounts. Due to non-compliance of its terms on the part of the defendants, the plaintiff took legal recourse by filing the instant suit for recovery.
28. Though the loan has been disbursed on 25.02.2016 and the suit has been instituted on 04.02.2020 but as defendants have admittedly paid 42 EMIs after the disbursal of loan amount in each of the two loans. Thus, construed from the last date of such payment the suit is within the prescribed period of limitation.
CS (Comm.) No. 290/20. Page 9 of 1229. The plaintiff bank has mentioned various charges due to be recovered from defendant in the communication dated 23.12.2019 Ex. PW 1/9 & Ex. PW1/9A as under:
Particulars Amount ₹
Principal outstanding 302591.60 &
162508.50
Late Payment Penalty 40,244 & 14,911
Cheque bouncing charges 5900 & 5310
Interest for the month 32.80 & 21.40
Prepayment charges 14282.32 & 7670.40
Interest on pending installments 5751.40 &
2652.50
Total 368802.12 &
193073.80
However, it is noticed that in the present suit the plaintiff bank has not claimed the pre-payment charges of Rs. 14,282.32+ Rs. 7670.40/- ( i.e. the total pre-payment charges of both accounts Rs. 21952.72/- ) and the suit has been filed for recovery of Rs. 5,39,923.2/- [₹5,61,875.92 - ₹ 21952.72 (pre-payment charges)].
30. Thus in my considered opinion the plaintiff bank has clearly been successful in proving its case on preponderance of probability entitling it to the outstanding principal and interest amount. The plaintiff bank is also entitled to the late payment penalty and cheque bouncing charges as the same have been occasioned due to the acts and omissions of the defendant. The same flows from the contractual relationship as per the terms and conditions CS (Comm.) No. 290/20. Page 10 of 12 settled and forming part of the loan documents.
31. The plaintiff bank has though claimed interest @9.51% w.e.f. 23.12.2019 but it was incumbent upon the plaintiff to capitalize the interest in the suit amount as on the date of filing and he ought to have paid the court fee accordingly. Thus, in these circumstances no interest is being awarded for the period 23.12.2019 till the date of institution of the suit i.e. 04.02.2020. However, the plaintiff bank is held to be entitled to pendent-lite interest and also future interest till the date of realization @9.51% per annum which is the contractual rate of interest and the same appears to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances.
32. Thus the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
33. The suit of the plaintiff is decreed in the sum of ₹ 5,39,923/- (for both loan accounts) with simple interest @ 9.51% per annum from the date of institution of the suit i.e. 04.02.2020 till realization of the entire amount. The interest accrued till the date of decree shall be part of the decreetal amount.
34. The plaintiff shall be entitled to the costs of the suit as well as per the rules. Certificate of counsel fee (if any CS (Comm.) No. 290/20. Page 11 of 12 submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, be deposited by the plaintiff within 30 days of the decree.
35. Decree shall be drawn accordingly.
Copy of the Judgment
36. In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
37. File be consigned to the Record Room.
Announced in the open court on 03.12.2021.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 290/20. Page 12 of 12