Delhi High Court - Orders
India Wire And General Mills Private ... vs Kotak Mahindra Bank Limited on 11 January, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 369/2022 & I.A. 8652/2022
INDIA WIRE AND GENERAL MILLS
PRIVATE LIMITED ..... Plaintiff
Through: Mr. Rajat Aneja, Mr. Karan Nagrath,
Ms. Nupur Kumar, Mr. Ambuj
Tiwari, Mr. Arjun Nagrath, Ms.
Shivangi Chawla, Advs
(M.9811022194)
versus
KOTAK MAHINDRA BANK LIMITED ..... Defendant
Through: Mr. Amol Sharma and Ms. Jagriti
Ahuja Advs (M. 9958609042)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 11.01.2024
1. This hearing has been done through hybrid mode.
I.A. 8652/2022 (u/Order XXXIX Rule 1&2 CPC)
2. In the present suit, the Plaintiff- India Wire and General seeks a decree of damages of Rs.30 crores against the Defendant- Kotak Mahindra Bank Limited (hereinafter, 'the Bank').
3. The Plaintiff's grievance is that it had mortgaged the property bearing no. '55A, Rama Road, Delhi' with the Bank, initially under its previous name, 'ING Vysya Bank' for securing certain financial facilities in 2010. Towards the said mortgage, the Plaintiff had deposited the original title deeds, including the Sale Deed dated 25th January, 1967 with the Bank on 22nd September, 2010. It is not in dispute that the said ING Vysya Bank has now been amalgamated with the Defendant Bank. In terms of the letter dated CS(COMM) 369/2022 Page 1 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:10 25th March, 2019, it is also not in dispute that the said Sale Deed is not traceable with the Defendant Bank for whatever reasons.
4. The Plaintiff maintains an ongoing relationship with the Defendant Bank due to certain loan facilities, which it has availed of. The interim injunction sought is that the loan agreement ought not to be terminated, and any application for enhancement of the loan amount ought to be considered by the Defendant Bank.
5. At the outset, the Plaintiff is concerned that, due to the filing of the present suit, the Defendant Bank might retaliate by stopping further loans and recalling existing ones if action is taken. Thus, the Plaintiff seeks an injunction to prevent the Defendant Bank from taking such actions and to ensure continued loan services based on the existing security. The request includes an injunction directing the Defendant Bank to continue offering loans to the Plaintiff and its associated companies, assuming the original title deeds are still valid as security, despite their loss. Additionally, the Plaintiff seeks a declaration that, should they choose to repay the loan, they should only pay the remaining balance after deducting a claimed loss of Rs. 30 crores, plus interest. Mr. Aneja, ld. Counsel submits that the Plaintiff should not be put to any detriment due to pendency of this suit and the claim for damages.
6. On behalf of the Defendant Bank, the ld. Counsel submits that the said Sale Deed was not traceable, and a certified copy was obtained from the Sub-Registrar's office. Furthermore, the loan agreement is being serviced independently by the Defendant Bank in accordance with the terms of said agreement. If the Plaintiff adheres to the terms and conditions of the loan transaction, the Defendant does not intend to terminate it. However, the CS(COMM) 369/2022 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:10 Defendant reserves the right to terminate the agreement, if the Plaintiff fails to comply with the loan's terms and conditions.
7. Heard. In the application for interim injunction, the only order that can be passed today is that the ongoing damages claim against the Defendant Bank shall not be used as a basis to either terminate the loan facility or deny the enhancement of the loan facility.
8. Both these matters should be handled in accordance with the existing loan agreement and the Defendant Bank's policy, independently of the present suit.
9. The application is disposed of in these terms.
CS(COMM) 369/2022
10. Various reliefs have been sought in the suit. The prayers are extracted below:-
a. pass a Decree for RECOVERY of an amount of Rs. 30,00,00,000/- (Rupees Thirty Crores only) along with pendente lite and future interest @15% per annum from the date of loss of the original Sale Deed dated January 25, 1967 in respect of the property bearing No: 55A, Rama Road, Delhi till the date of realization of the amount decreed in favour of Plaintiff and against the Defendant;
b. pass a Decree of Perpetual and Mandatory Injunction in favour of the Plaintiff and against the Defendant, directing the Defendant Bank to advance further loans, if required by the Plaintiff, on the basis of the Sale Deed dated January 25, 1967 in respect of the property bearing No. 55A, Rama Road, Delhi, without any hindrance; and a further Perpetual Prohibitory Injunction be issued restraining the Defendant from recalling the loan or taking any vindictive or coercive action owing to the filing of the present suit;CS(COMM) 369/2022 Page 3 of 7
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:11 c. direct the Defendant Bank to issue a letter of indemnity in favour of the Plaintiff, certifying therein that the original Sale Deed dated January 25, 1967 in favour of the Plaintiff pertaining to the property bearing No. 55A, Rama Road, Delhi was lost while it was in the custody of the Defendant Bank, with regards to which an FIR was also lodged by the Defendant against LR No. 802365/2019;
d. direct the Defendant Bank to indemnify the Plaintiff for all the lossesl damages that may result from any misuse of the original Sale Deed dated January 25, 1967 pertaining to the property bearing No. 55A, Rama Road, Delhi by any person;
e. direct the Defendant Bank to publish in the leading English and Hindi newspapers in circulation in India that the original Sale Deed dated January 25, 1967 pertaining to the Plaintiffs property bearing No. 55A, Rama Road, Delhi, which was deposited with the Defendant and was in its custody, has been misplaced/ lost by the Defendant;
f. direct the Defendant Bank to apply and obtain, at its own expense and time, the duplicate Sale Deed dated January 25, 1967 pertaining to the property bearing No. 55A, Rama Road, Delhi from the concerned authority and deliver it to the Plaintiff; g. However, in the alternative to Prayer clause (a), pass a decree of Declaration in favour of the Plaintiff and against the Defendant that the Plaintiff and the Group Companies are entitled to adjust the amount of Rs. 30,00,00,000/- (Rupees Thirty Crores only) along with interest thereon @ 15% per annum, from the principal amount advanced by the Defendant to the Plaintiff and the Group Companies, and the loan liability of the Plaintiff and the Group Companies would stand reduced to the aforesaid extent; h. award costs of the present suit in favour of the Plaintiff; and CS(COMM) 369/2022 Page 4 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:11 i. grant such other and further relief(s) as this Hon'ble Court may deem fit and proper in the interest of justice, considering the facts and circumstances of the present case.
11. Insofar as the publication in the newspaper in respect of prayer clause
(e) in the plaint, the Defendant-Bank shall publish in the newspaper that the Sale Deed dated 25th January, 1967 in respect of the said property is not traceable. The said publication shall be effected in one Hindi and one English newspaper being Hindustan and Hindustan Times respectively, which has wide circulation in Delhi. The original publication shall then be handed over to the Plaintiff. According, prayer clause (e) stands satisfied.
12. Insofar as the other reliefs are concerned, the following issues are framed:
"1. Whether the Plaintiff is entitled to a decree for the amount of Rs.30,00,00,000/- (Rupees Thirty Crores Only) for loss of the original sale deed dated January 25, 1967 in respect of the property bearing no. 55A, Rama Road, Delhi ("the said property") by ING Vysya Bank, now Kotak Mahindra Bank ("Defendant bank")? In the alternate, to what amount is the Plaintiff entitled to for the loss of the original sale deed by the Defendant bank? OPP
2. Whether the Plaintiff is entitled to the relief of mandatory injunction directing the Defendant bank to advance further loans on the basis of original sale deed date January 25, 1967 in respect of the said property which was deposited and which has been lost by the bank? OPP
3. Whether the Plaintiff is entitled to the relief of prohibitory injunction to restrain the respondent for CS(COMM) 369/2022 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:11 taking any coercive action owing to the filing of the suit? OPP
4. Whether the Plaintiff is entitled to obtain a letter of indemnity for loss if any which may be caused to the Plaintiff due to the loss of the original sale deed dated January 25, 1967 in respect of the said property lost by the Defendant bank? OPP
5. Whether the Plaintiff is entitled to obtain a declaration to the effect the Plaintiff and its group companies are entitled to adjust the amount of 30,00,00,000/- (Rupees Thirty Crores only) from that amount payable by Plaintiff/group companies? OPP
6. Whether the Plaintiff is entitled to any interest? If so at what rate and for what period? OPP
7. To what relief the Plaintiff is entitled to?" OPP
13. The Plaintiff and the Defendant shall file their list of witnesses within a period of four weeks. The Plaintiff shall file affidavit of witnesses within a period of six weeks thereafter.
14. Ld. Counsel for the Plaintiff requests for appointment of a Local Commissioner for expeditious recording of evidence. Accordingly, Ms. Smita Maan, Advocate (M:9818713233) is appointed as the Local Commissioner for recording the evidence.
15. The parties to appear before the Local Commissioner on 21st February, 2024 for passing appropriate directions. Ld. Counsel for the Plaintiff shall arrange the premises for recording of evidence.
16. The fee and the expenses of the Local Commissioner shall be equally shared by the parties. At this stage, a lumpsum fee of the Local CS(COMM) 369/2022 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:11 Commissioner is fixed at Rs.75,000/- to be shared equally by the parties. Any enhancement would be considered depending upon the number of hearings held by the Local Commissioner.
17. List before the Court on 13th May, 2024.
PRATHIBA M. SINGH, J.
JANUARY 11, 2024 Rahul/dn CS(COMM) 369/2022 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 06:17:11