Delhi District Court
Interalia Having Its Branch Office At vs Ashoka Paint And Brushes on 24 February, 2014
Civil Suit No. 261/13
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-CENTRAL-09, DELHI.
Civil Suit No.: 261/13.
Unique Case ID No. 02401C0424732012.
M/s. ICICI Bank Ltd.
Having its registered office at:
Landmark, Race Course Circle,
Vadodara-390007.
Interalia having its Branch office at:
2nd Floor, Videocon Towers,
Jhandewalan Extension,
New Delhi. ...............Plaintiff
Versus
Ashoka Paint and Brushes
Through
proprietor: Ashok Kumar
230/1A, Circular Road
Shahdara, Delhi-32. ............Defendant
Date of institution of the suit : 10.09.2012.
Reserved for judgment on : 24.02.2014.
Date of pronouncement of judgment : 24.02.2014.
SUIT FOR RECOVERY OF RS. 3,90,437.47/- (RUPEES THREE
LAC NINETY THOUSAND FOUR HUNDRED THIRTY SEVEN AND
PAISE FORTY SEVEN ONLY).
JUDGMENT
01. The present suit is for recovery of Rs.3,90,437.47/- filed by the plaintiff against the defendant.
M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 1 Civil Suit No. 261/13
02. Brief facts of the case are :-
(a) Plaintiff is a banking company incorporated under the Companies Act and is engaged in the business of providing various loans/credit facilities to the general public at large.
(b) Sh. Rajiv Verma Authorised Attorney/Representative of the plaintiff has been duly authorised by way of power of attorney authorising him to sign and verify the plaint, engage advocate, sign Vakalatnama, sign application, swear affidavit and to take all other necessary steps for and on behalf of the plaintiff.
(c) Defendant is a proprietor concern. Defendant through its proprietor approached the plaintiff for grant of Over Draft facility of Rs.0.27 Million.
(d) Plaintiff acceded to the request of the defendant and sanctioned an overdraft facility of Rs.0.27 Million and the same has been credited in the account no. 033005004340 of the defendant. The borrower agreed to pay the interest @19% on the said Overdraft facility. The borrower executed Overdraft facility Agreement and other documents on 20.10.2007 in favour of the plaintiff.
(e) Defendant had availed the said facility to its maximum and optimum as per his needs and requirement but the did not adhere the financial discipline towards the payment of amount due either towards principle or interest or charges thereon. The part payment received by the plaintiff was Rs.7448/- on 02.04.2011.
(f) Despite several assurances by the defendant, the defendant was not making payment of the outstanding amount and the plaintiff was forced to given loan recall notice dated 25.06.2012 posted on 27.06.2012. Despite receipt of the notice the defendant neither replied nor repaid the outstanding amount.
(g) As per the accounts maintained by the plaintiff the defendant is liable to pay a sum of Rs.3,90,437.47 as on date.
M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 2 Civil Suit No. 261/13
03. Written statement filed by the defendant wherein it is objected that plaint is liable to be rejected under Order 7 Rule 11 of CPC; suit is not properly valued for the purpose of court fees and jurisdiction; the documents relied upon and on the basis of which the plaintiff has filed the present suit are not admissible in evidence because the same were blank at the time of signing by the defendant and now the terms and conditions have been incorporated by the plaintiff; the contract entered by the defendant is a voidable contract since the consent of the defendants were obtained without disclosing the terms and conditions of the agreement. Notice dated 25.06.2012 is denied. Rest of the contents of the plaint are also denied.
04. This court by order dated 06.07.2013 framed following issues:
1. Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
2. Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD.
3. Whether the plaintiff relied upon the contract which is a voidable contract and thus, there is no liability of the defendant against the plaintiff ? If so, its effects. OPD.
4. Whether the plaintiff is entitled for recovery of the suit amount ? OPP.
5. Whether the plaintiff is entitled for pendente lite and future interest ? If so, at what rate ? OPP.
6. Relief.
05. To prove its case, plaintiff examined Sh. Rajiv Verma, AR of the plaintiff as PW-1 who tendered his evidence by way of affidavit M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 3 Civil Suit No. 261/13 Ex.PW-1/1. He relied upon documents Ex.PW1/A to Ex.PW1/E. He was cross examined at length by ld. counsel for the defendant. Thereafter, by separate statement, ld. counsel for the plaintiff closed P.E. In defence, defendant examined himself as DW-1 who tendered his evidence by way of affidavit Ex.DW1/A. This witness was cross examined by ld. counsel for the plaintiff. Thereafter, by separate statement defendant closed D.E.
06. I have gone through the entire records of the case including pleadings of the parties, evidence led by parties and documents proved by the parties during evidence. My issue-wise findings are:-
Issues no.1, 3 and 4.
01. Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC ? OPD.
03. Whether the plaintiff relied upon the contract which is a voidable contract and thus, there is no liability of the defendant against the plaintiff ? If so, its effects. OPD.
04. Whether the plaintiff is entitled for recovery of the suit amount ? OPP.
07. Since facts pertaining to these issues are inter-related to each other therefore, I am going to dispose of these issues by common findings. Onus to prove issues no.1 and 3 was upon the defendant whereas the onus to prove issue no.4 was upon the plaintiff. During cross examination, defendant admitted that he has taken over draft facility from the plaintiff. He further identified his signature on Ex.PW1/B which is Credit Facility Arrangement Letter. It bears the signature as well as the stamp of the defendant. Defendant further admitted that he had given a cheque for issuing him the sanction letter. He did not deny that he approached the plaintiff with the cheque for obtaining the sanction letter for the over draft facility on 27.09.2007. He identified his signature M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 4 Civil Suit No. 261/13 upon document Ex.PW1/C which is Master Facility agreement between the parties. Defendant further admitted that he obtained over draft facility from the plaintiff for two years. The said over draft facility was provided for Rs.2,70,000/-. He has denied the suggestion that he was told to pay interest @19% p.a. But he voluntary stated that he was told to pay interest @ 12% p.a. Therefore, it is the admitted case of the defendant that the transaction between the parties for consideration of payment of interest. Defendant further admitted his address as 230/1A, Circular Road, Shahdara, Delhi. He did not deny that he was used to be served with statement of account quarterly. He has further not denied that over draft limit used to be renewed every year. He has further admitted that he has exceeded his OD limit. Thus, the material contents and documents have already been admitted by the defendant during his cross examination. In cross examination of PW-1 there is no challenge to the transaction entered into between the parties by the defendant. The only challenge is there regarding the rate of interest. Therefore, the plaintiff has successfully discharged the onus to prove issue no.4 whereas defendant is not able to discharge the onus to prove issues no.1 and 3 and accordingly, these issues are answered in favour of the plaintiff and against the defendant to the effect that the plaintiff is entitled for decree for recovery of the suit amount i.e. for Rs.3,90,437/-.
Issue no.2.
Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD.
08. Onus to prove this issue was upon the defendant. However, defendant neither in his evidence nor in cross examination of PW-1 has led any evidence to prove this issue and accordingly, this issue is also answered against the defendant.
M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 5 Civil Suit No. 261/13 Issue no.5.
Whether the plaintiff is entitled for pendente lite and future interest ? If so, at what rate ? OPP.
09. Onus to prove this issue was upon the plaintiff. Ex.PW1/B wherein there is agreement of interest@19% p.a.. During cross examination, it is the case of DW-1 that interest was agreed @ 12% p.a. However, no such document has been proved by the defendant. Therefore, this court is of the considered opinion that plaintiff has successfully discharged the onus to prove that there is an agreement for payment of interest @ 19% p.a. However, this court is of the considered opinion that in view of prevailing rate of interest in the nationalised banks in the year 2007, the interest @15% p.a. shall serve the purpose of justice. Therefore, plaintiff is entitled for interest @15% p.a. on decree amount from the date of filing of the suit till realisation.
Issue no.6.
Relief.
10. In view of the observations made herein above, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,90,437/- along with interest @ 15% p.a. from the date of filing of the suit till realisation. Plaintiff shall also be entitled for proportionate costs of the suit. Decree Sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 24.02.2014 (Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 24.02.2014 M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 6 Civil Suit No. 261/13 Civil Suit No.: 261/13 24.02.2014 Present: Sh.Vikas Chhabra, ld. counsel for the plaintiff.
Sh. Suresh Sharma, ld. counsel for the defendant.
Final arguments heard.
Now to come up for judgment at 04:00 p.m. (Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 24.02.2014 At 04:30 p.m. Present: None.
Vide my separate judgment announced the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for a sum of Rs.3,90,437/- along with interest @ 15% p.a. from the date of filing of the suit till realisation. Plaintiff shall also be entitled for proportionate costs of the suit.
Decree sheet be prepared accordingly.
File be consigned to record room.
(Jitendra Kumar Mishra) ADJ/Central-09, Tis Hazari Courts, Delhi 24.02.2014 M/s. ICICI Bank Ltd. Vs. Ashoka Paint and Brushes Page 7