Delhi District Court
Racpc At A1/24 vs Nikhil Pratap Tyagi on 4 July, 2023
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-02, SOUTH WEST,
DWARKA COURTS, DELHI
CNR No. DLSW01-004763-2022
CS (Comm) No. 221/2022
In the matter of :-
State Bank of India
Head Office At :
State Bank Bhavan, Madam Kama Road,
Mumbai - 440024
Local Head Office at :
11, Sansad Marg, New Delhi - 01
and
One of its Branches at :
PBB, Janakpuri, New Delhi
&
RACPC at A1/24, Janakpuri,
Nazafgarh Road, New Delhi - 110058
............Plaintiff
Vs.
Nikhil Pratap Tyagi
S/o Sh. Rameshwar Dayal
R/o 303, Green View Apartment
Pocket 2, Sector - 19, Dwarka, New Delhi - 110075
Also at : 291, Bhuni, Sardhana
Near Gram Chopal, Meerut, U.P. - 250344
Office At : Sigma Test and Research Centre
BA-15, Mangolpuri Industrial Area, PH-2
Near Mangolpuri Flyover, New Delhi - 110034
.........Defendant
Date of institution of the case : 12.05.2022
CS (Comm) No. : 221/2022 1/8
Date of final arguments : 03.07.2023
Date of judgment : 04.07.2023
JUDGMENT
1. This is suit for recovery of Rupees 5,48,340/- (Rs. Five lacs forty eight thousand three hundred forty only) filed by plaintiff against the defendant.
2. In terms of the case of plaintiff bank, defendant had availed car loan of Rs. 5,30,000/- from the plaintiff bank for purchase of Chevrolet Sail Car and requisite documents i.e. Loan Cum Hypothecation Agreement, Arrangement letter, Operations Letter etc., all dated 09.02.2017 were also executed by the defendant in favour of Plaintiff bank.
3. As per loan agreement, loan was repayable in 84 EMIs of Rs. 8,594.6/- till the entire amount of aforesaid loan is repaid in full with all interest, cost, charges, expenses etc. However, defendant failed to adhere to the agreed terms and conditions of the agreement and committed defaults in repayment of loan amount, as a result of which, the said loan account became irregular and sticky. Defendant further failed to regularize the account by depositing the outstanding dues in the loan account despite repeated requests and intimation by the plaintiff bank. Ultimately, the said account of defendant was declared N.P.A. (Non Performing Asset) on 10.07.2019. Legal notice dated 05.10.2021 was sent to the defendant but the same did not evoke any response from the defendant.
4. As further stated, in terms of books of Account maintained by plaintiff bank in normal course of business, as on 02.04.2022, there was a debit balance of Rs. 4,05,853/- (Rs. Four lacs five thousand eight hundred fifty three only) exclusive of further CS (Comm) No. : 221/2022 2/8 interest and expenses which the defendant being borrower is liable to pay to the plaintiff bank with updated interest and expenses thereupon.
5. Plaintiff bank filed an application for Mediation before the competent authority under Rule 2 (c) of The Commercial Courts (Pre-Institution) Mediation and Settlement Rules, 2018 wherein defendant did not participate in the mediation proceedings and Non-Starter Report dated 16.12.2021 was issued by DLSA, South West, Dwarka Courts, Delhi. Hence, the present suit was filed by the plaintiff.
6. In written statement filed by the defendant, it was stated that the plaintiff bank made the defendant sign on blank pages where only the general terms and conditions were specified and no amount or rate of interest was filled by the plaintiff bank at the time of documentation for the sanction of the said loan. It was further stated that the rate of interest charged by the plaintiff bank is exorbitant as the rate of interest as negotiated between the parties was at 6.5% p.a. and plaintiff bank has arbitrarily charged interest @ 9.25% p.a. Even the sanction letter issued by the plaintiff bank does not entail any details about the loan arrangement between the parties. It only mentions the amount which was disbursed and neither the terms of arrangement nor the loan term period or rate of interest was mentioned in the said letter. As further stated, plaintiff bank illegally declared the loan account of the defendant as NPA without even informing the defendant despite the fact that part payment was made by the defendant in the month of October 2019. Further, defendant did not receive any notice for pre-institution mediation and plaintiff with the intention to harass the defendant has filed the present suit.
CS (Comm) No. : 221/2022 3/87. In replication/rejoinder filed, contents of written statement were denied and those of plaint were reiterated. It was stated that all the terms and conditions had been explained to the defendant and only thereafter defendant had signed and executed various documents in favour of plaintiff bank. It was further stated that as per Clause 6 of the Loan-cum-Hypothecation agreement, defendant had agreed for " Floating Rate of Interest". Hence, the present rate is valid and now defendant cannot deny it, which was duly accepted by him by signing the necessary documents. Further, pre-mediation summon was sent by DLSA, Dwarka on all the addresses furnished by defendant himself in various documents executed in favour of plaintiff bank.
8. From the pleadings of parties, following issues were framed vide order dated 25.02.2023 :
1. Whether the plaintiff is entitled for decree of sum of Rs. 5,48,340/-, as prayed for ? OPP
2. Whether the plaintiff is entitled for any interest, if so, at what rate and for what period? OPP
3. Relief
9. In plaintiff's evidence, Sh. Vikas, AR/Assistant Manager of plaintiff bank was examined as PW1, who relied upon following documents:
1. Gazette notification of Govt. of India dt. 02.05.1987 as Ex.
PW1/A
2. Loan application form as Ex. PW1/B (Colly. 4 pages)
3. Attested copies of I-card, PAN card, passport and Aadhar card as Ex. PW1/C (Colly. 5 pages)
4. Sanction letter dt.09.02.2017 as Ex. PW1/D CS (Comm) No. : 221/2022 4/8
5. Loan cum hypothecation agreement as Ex. PW1/E (4 pages colly.)
6. Arrangement letter dt. 09.02.2017 as Ex. PW1/F (4 pages colly.)
7. Vehicle delivery letter as Ex. PW1/G
8. Operation letter dt. 09.02.2017 as Ex. PW1/H
9. Statement of assets and liability as Ex. PW1/I
10. Legal notice dt. 05.10.2021 and its postal receipt dt.
06.10.2021 as Ex. PW1/J (5 pages Colly.)
11. Loan account statement of defendant as Ex. PW1/K (6 pages colly.)
12. Certificate U/s 65 B of Indian Evidence Act and 2A of Bankers Book as Ex. PW1/L.
13. Certificate of accrued interest dt. 05.04.2022 as Ex. PW1/M.
10. In Defendant's evidence, defendant examined himself as DW1 and relied upon statement of account w.e.f. 10.02.2017 to 02.11.2022, already exhibited by plaintiff as Ex. PW1/K. Issue wise findings are as under :-
Issues no. 1 & 2 :-
11. Defendant had availed car loan in sum of Rs. 5,30,000/-
from plaintiff bank vide documents dated 09.02.2017. The said loan was to be repaid in 84 EMIs of Rs. 8,594.6/- which defendant failed to pay regularly. Due to non payment of outstanding amount and failure on the part of defendant to regularize the account, the said loan account was declared NPA on 10.07.2019. Relevant documents executed and signed by the CS (Comm) No. : 221/2022 5/8 defendant at the time of availing the said loan facility were brought on record by PW1 as Ex. PW1/B to Ex. PW1/H.
12. PW1 was not cross-examined and his testimony remained un-rebutted and uncontroverted, duly substantiated by documents filed on record. Defendant himself in his affidavit of evidence filed on record admitted that plaintiff bank had disbursed the loan of Rs. 5,30,000/- to him on 09.02.2017 for purchasing a car (Chevorlet Sail) and he had agreed to repay the loan amount in 84 EMIs of Rs. 8,594.6/ each. He continued paying the EMIs till January 2019 but due to some dispute regarding the EMI amount, he requested the plaintiff bank to settle the loan account as he was willing to prepay the loan. However, the bank officials did not pay any heed to his request and demanded Rs. 24,900/- in February 2019 and Rs. 23,305/- in March 2019 on account of settling the loan amount.
13. It was further deposed by DW1 that during Covid-19 period i.e. March 2020, he had lost his job due to which he vacated the tenanted house and shifted to his native place. During this period, plaintiff had initiated pre-institution mediation and he was unable to settle the matter with the bank.
14. In cross examination also, DW1 reaffirmed the case of plaintiff that he had taken car loan in sum of Rs. 5,30,000/- from plaintiff bank on 09.02.2017. He admitted that the car loan was to be repaid in 84 EMIs of sum of Rs. 8,594/- and that he had no objection to the rate of interest on the loan taken . He further admitted that he had signed the loan cum hypothecation agreement Ex. PW1/E and last installment paid by him was in the month of October. He himself admitted that he is liable to pay certain remaining loan amount to the plaintiff.
CS (Comm) No. : 221/2022 6/815. In terms of account statement of defendant maintained by plaintiff bank Ex. PW1/K (colly), an amount of Rs. 5,48,340/- (Rs. Five lacs forty eight thousand three hundred forty only) including accrued interest and penalty etc. was due against the defendant as on 02.04.2022, which defendant was liable to pay being borrower. Defendant has made the specific admission in his cross examination with regard to execution of loan documents with complete knowledge and agreeable rate of interest. Defendant himself could not repay the loan amount and failed to follow the financial discipline. Though defendant has submitted the reason of Covid Pandemic due to which he was unable to pay the installments, however, as emerged on record, defendant stopped paying the installments much prior to onset of Covid pandemic. Defendant claimed to have made last EMI in January 2019 and thereafter he made two payments in sum of Rs. 24900/- in February 2019 and Rs. 23, 305 in March 2019 to settle the loan account. The payments however reflected in statement of account Ex. PW1/K are dated 27.03.2019 in sum of Rs. 24,900/- and 4.10.2019 in sum of Rs. 23,305/-. DW1 also admitted in cross examination that last payment made by him was in the month of October 2019. As on 4.10.2019, the outstanding amount in terms of ledger details was Rs. 4,29,274/-. Therefore, by no stretch of imagination the settlement could have been effected against the payment of Rs. 23,305/- .
16. Besides that, nothing has been brought on record by the defendant that he had made such payment against settlement of account nor any figure has been revealed on record by the defendant for which the loan account has been settled between the parties. Rather, nothing is available on record to show that defendant made any efforts for settlement from the bank. Legal CS (Comm) No. : 221/2022 7/8 notice sent by plaintiff bank was received by defendant as admitted by him but was not replied. He did not participate in pre-institution mediation proceedings and after filing of the suit also, matter was not settled between the parties. Defendant though stated that he was liable to pay remaining loan amount to the plaintiff and was ready to pay but did not make any serious efforts to settle the matter with the plaintiff bank. Thereby, plaintiff is entitled for recovery of the outstanding amount from the defendant. Plaintiff has claimed interest @ 8.25 % p.a. . At the time of disbursement of loan, the effective rate of interest was 9.25% p.a. with monthly rest but later on the rate was reduced to 8.25% p.a. as the defendant had opted for floating rate of interest. Plaintiff is, therefore, entitled for interest at the rate of 8.25% p.a. which is the prevailing rate, as claimed.
17. Instant suit is accordingly decreed with cost in favour of the plaintiff and against the defendant for an amount of Rs. 5,48,340/- (Rs. Five lacs forty eight thousand three hundred forty only) alongwith pendentelite and future interest @ 8.25 % p.a. on outstanding principal amount.
18. Decree sheet be prepared accordingly. After completion of formalities, file be consigned to record room.
SAVITA Digitally signed
by SAVITA RAO
RAO Date: 2023.07.04
15:38:55 +0530
Announced in the open (SAVITA RAO)
court on this 4th day DISTRICT JUDGE
of July 2023 (COMMERCIAL COURT)-02
(S/W) DWARKA COURTS, DELHI
CS (Comm) No. : 221/2022 8/8