Delhi District Court
The Federal Bank Ltd. vs . J.K.Empire Construction Project Pvt. ... on 24 May, 2016
The Federal Bank Ltd. Vs. J.K.Empire Construction Project Pvt. Ltd. & Anr.
IN THE COURT OF CIVIL JUDGE02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 83/15
The Federal Bank Ltd.
A12, Shivalik, Near Aurbindo college,
New Delhi110017 ... Plaintiff
Versus
1. M/s. J.K.Empire Construction Project Pvt. Ltd.
161, PTS Colony, Malviya Nagar,
New Delhi110017
(Through Director)
2. Sh. Jitender Kumar
S/o Sh. Deep Chand
R/o 161, PTS Colony, Malviya Nagar,
New Delhi110017 ... Defendants
Date of Institution : 17.03.2015
Date of Reserving Judgment : 24.05.2016
Date of Decision : 24.05.2016
Final Decision : Decreed
J U D G M E N T
(on Suit for recovery of Rs.2,67,846/)
1. This suit was filed by the plaintiff for recovery of Rs.
2,67,846/ alongwith pendente lite and future interest @20.52% per annum with monthly rests plus penal interest @2.00% Charges and cost against the defendants.
2. Briefly stated, case of the plaintiff is that the plaintiff bank i.e the Federal Bank Ltd. a Banking Company, registered CS No. 83/15 1 of 5 The Federal Bank Ltd. Vs. J.K.Empire Construction Project Pvt. Ltd. & Anr.
under the companies Act, 1956. That defendant no.1 namely M/s J.K. Empire Construction Project Pvt. Ltd. is a private limited company having registered office at 161, PTS Colony, Malviya Nagar, New Delhi110017 and is engaged in real estate business and is being managed by two Directors namely Sh. Jitender Kumar S/o Sh. Deep Chand and Sh. Vipin Kumar S/o Sh. Deep Chand. That the said defendant no.1 Company is having a current account with plaintiff bank and was enjoying an temporary overdraft facility (TOD) against cheques sent for collection. The defendant no.2 namely sh. Jitender Kumar is the Director of the defendant no. 1 company and has guaranteed the outstanding overdraft amount of Rs.1,92,512/ as on 01.12.2012 in the name of the defendant no.1 company be executing and delivering necessary loaning and security documents. That Sh. Jitender Kumar S/o Sh. Deep Chand, the defendant no.2 herein, a Director of the Company owns 99% share capital of the Company and the other Director of the company Sh. Vipin Kumar S/o Sh. Deep Chand owns 1% share capital of the company. That the said defendant no.1 company requested for opening a current account with the branch of the plaintiff bank. That defendant no.2 Sh. Jitender Kumar being the Director of the defendant no.1 company operates the said current account of the defendant no.1 company and deposits cheques and withdraws money under his signatures. That the defendant no.1 company on 01.12.2012 withdraw an amount of Rs.1,50,000/ vide cheque no.10011617 and the said account became overdrawn by Rs.1,47,512/. This overdrawn amount in the account got increased to Rs.1,92,512/ as a cheque bearing no.881308 dated for Rs. 45,000/ drawn on Punjab National Bank in favor of the company was returned unpaid by the drawee bank for the reason CS No. 83/15 2 of 5 The Federal Bank Ltd. Vs. J.K.Empire Construction Project Pvt. Ltd. & Anr.
"Insufficient Funds". The company in order to pay the said overdrawn account deposited a cheque no.75701 for Rs.2,00,000/ drawn on Allahabad Bank favoring the defendant no.1 company which was returned unpaid by the drawee bank for the reason "Insufficient Funds". Thus the current account of the defendant no. 1 company continues to be overdrawn. The defendant no.1 company has no right to retain the amount withdrawn through the defendant no.2 and thus the defendants no.1 and 2 are liable to refund the said amount as per the statement of account to the plaintiff bank along with interest. That the plaintiff bank asked the defendant no.1 company through its Director Sh. Jitender Kumar to clear the overdraft in the current account of the defendant no.1 company. Sh. Jitender Kumar stated that the same would be cleared soon and undertook to pay personally and executed DP Note dated 01.12.2012 for Rs.1,92,512/ as also security delivery letter and confirmed the balance in the said account as on 01.12.2012 for Rs.1,92,512/. That the plaintiff bank approached the defendants vide letter no.NDLI/16770200000370/Recall/88/142/2013 dated 15.07.2013 dated asking them to pay the sum of Rs.1,85,492/ outstanding since 19.11.2012 alongwith interest but the defendants have failed and neglected to pay the said amount. The defendants have not paid any amount thereafter despite repeated oral request. Hence, the present suit is filed by the plaintiff seeking following relief:
(a) Pass a joint and several personal decree in favour of the plaintiff bank and against the defendants no.1 and 2, jointly and severally, for Rs.2,67,846/ as on 15.03.2015 (interest included upto 15.03.2015) alongwith pendentelite and future interest from 16th March 2015 i.e. The date of filing of this suit @ 20.52% per annum with monthly rests CS No. 83/15 3 of 5 The Federal Bank Ltd. Vs. J.K.Empire Construction Project Pvt. Ltd. & Anr.
plus penal interest @2.00% per annum till realization of the decretal amount.
3. Notice of the suit was duly served upon the defendants.
However, none appeared on behalf of the defendants neither any written statement (WS) filed. Hence, defence of the defendants was struck off and they were proceeded exparte vide order dated 14.03.2016.
4. In order to prove its case, the plaintiff examined its Chief Manager Ms. Sonia C as PW1 who tendered her evidence way of affidavit as Ex.PW1/1. She relied upon documents Mark A (Power of Attorney of Sh. Achal Chaudhary), Ex.PW1/2 (Power of Attorney of AROSR), Mark B (copy of certificate of incorporation), Ex.PW1/4 (share holders details of the company), Ex.PW1/5 (request letter of defendant no.1 company for opening account), Ex.PW1/6 (account opening form defendant no.1 company), Ex.PW1/7 (demand promissory note dated 01.12.2012), Ex.PW1/8 (Security delivery letter dated 01.12.2012), Ex.PW1/9 (letter no.NDLI/16770200000370/Recall/88/142/2013 dated 15.07.2013) and Ex.PW1/10 (statement of account with banker's certificate as per the banker's book Evidence Act) and thereafter, plaintiff closed its exparte evidence.
5. I have heard the exparte arguments on behalf of the plaintiff and also gone through case file carefully.
6. It must also be noted here that the testimony of PW1 has gone absolutely and entirely unrebutted and unchallenged and CS No. 83/15 4 of 5 The Federal Bank Ltd. Vs. J.K.Empire Construction Project Pvt. Ltd. & Anr.
there is nothing on record which casts a shadow of doubt on his testimony. The documents relied upon by the plaintiff have also been duly proved on record.
7. Plaintiff has also claimed pendente lite and interest @20.52% per annum alongwith 2% penal interest per annum. The same appears to be excessive and exorbitant. In the facts and circumstances of the present case, interest @12% per annum seems to be just and appropriate to me.
8. In view of the above discussion, I am of the considered opinion that plaintiff has been able to prove its case by leading cogent evidence. Hence, suit of the plaintiff is hereby decreed and a decree for recovery of Rs.2,67,846/ along with the interest @ 12% per annum from the date of institution of the present suit till realization of the decretal amount is hereby passed in favour of the plaintiff and against the defendants jointly and severally. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
9. File be consigned to the record room after due compliance.
Announced in the open Court on 24th May, 2016 (Vishal Pahuja) CJ02 (South)/Saket Courts New Delhi/24.05.2016 CS No. 83/15 5 of 5