Delhi District Court
Delhi Sc/St/Obc Minorities & vs Sh. Bhoop Singh on 24 May, 2010
IN THE COURT OF MS.TYAGITA SINGH
CIVIL JUDGE-01(NORTH) : DELHI
Suit. No. 1077/09
Old Suit No. 265/04
DELHI SC/ST/OBC MINORITIES &
HANDICAPPED FINANCIAL AND
DEVELOPMENT CORPORATION LTD.
(A GOVERNMENT OF DELHI CORPORATION)
2, BATTERY LANE, RAJPUR ROAD,
DELHI-110054
(THROUGH DULY CONTITUTED ATTORNEY)
......... Plaintiff
VS.
1 Sh. BHOOP SINGH
S/o Sh. KHACHERU RAM
R/o 293, VILL. SHAHPUR JAT,
NEW DELHI- 16
2 Sh. BHIM SINGH
S/o. SH. CHANDER BHAN
R/o H.No. 16/471, BAPA NAGAR,
KAROL BAGH,
NEW DELHI- 05
3 Sh. R.S. KAIN
S/o Sh. TEK CHAND
R/o 293, VILL. SHAHPUR JAT,
NEW DELHI- 16
4 Smt. BIMLA KAIN
W/o Sh. VED PRAKASH
R/o 136/A, DG-II, VIKAS PURI,
NEW DELHI-18
5 Sh. KHUSHAL CHAND
S/o Sh. KHACHERU RAM
R/o 293, VILL. SHAHPUR JAT,
NEW DELHI- 16
......... Defendants
Advocates appearing in the matter
Sh. Y.S. Chauhan, counsel for plaintiff
Sh. Sehdev Singh, counsel for defendants
Date of institution : 25.09.2004
Date of decision : 24.05.2010
JUDGMENT:
1 The plaintiff has filed the present suit dated 25.09.2004 for recovery of Rs. 1,45,416/- with interest from the defendant. The brief facts of the plaint are as follows:
1.1 The plaintiff is a government undertaking and has filed the present suit through Sh. Sanjeev Sharma, attorney of plaintiff.
The main objective of the plaintiff is to provide financial assistance to the members of ST/ SC/ OBC/ Minorities and Handicapped persons of the Union Territory of Delhi for their economic upliftment and development.
1.2 The defendant no.1 had applied for financial assistance for the purchase of Bus vide loan file no. F-35(147)/92- 93/DSFDC/STA. A loan in sum of Rs. 4,20,000/- was granted to defendant no.1 vide sanction letter dated 28.01.93. In collaboration with National SC/ST Financial and Development Corporation (NSFDC).
1.3 The defendant no. 2 to 5 stood as guarantors to the loan granted to defendant no.1 and executed Bond of Guarantee. Hypothecation deed was executed by the defendant no.1 in favour of the plaintiff alongwith a letter of consent. The aforesaid loan was to be repaid in 60 instalments but, defendants did not repay the loan amount and committed default. Notice of demand was duly served upon all the defendants for payment of outstanding dues and the Deputy Commissioner was also approached as per due process of law, for recovering the outstanding amount from the defendants as arrears of land revenue, but to no avail. 1.4 The defendants failed to pay outstanding loan amount despite repeated reminders, hence, the bus of defendant was impounded by the plaintiff and resold for Rs. 92,000/. Even after deduction of this amount from the outstanding loan amount, the sum of Rs. 1,45,416/- is still to be recovered from the defendants. Hence, the present suit has been filed by the plaintiff for recovery of the said amount.
2 Summons were served upon the defendants in response to which the defendants filed their Written Statement separately. Defendant no. 1 is the main borrower and defendant no. 2-5 are guarantors and the facts mentioned in the Written Statement of the defendants are the same, which are being stated as follows:
2.1 The defendants have taken preliminary objection that the plaintiff has concealed material facts from this court. The case between plaintiff and defendants is pending before the National Commission for SC and ST but the plaintiff has not complied with the order/directions of the National Commission who directed the plaintiff not to impound the bus of the defendant no. 1 till the final decision of the case. The plaintiff impounded the bus in contravention of the directions of the National Commission and resold it without valuation report, with a price much lower than the actual value of the bus at the date of impounding. 2.2 The defendant no. 1 has further submitted that the impugned bus was earlier impounded on 07.05.96 and it was subsequently released on payment of parking charges of Rs.250/-
per day. The plaintiff impounded the same bus on 05.05.98 and left the defendant no.1 unemployed and destroyed the livelihood and earning source of defendant no.1. The defendant no.1 further asserted that vehicle was impounded without due process of law in contravention of directions of Hon'ble Supreme Court in various cases.
2.3 The defendant no.1 has further alleged that as per insurance policy dated 12.02.98 to 12.02.99, the value of the bus is Rs. 3,00,000/- and the over dues of loan against the bus (no. STA DL-1P-4627) on the date of impounding was Rs. 1,55,125/- as per the certificate of impounding dated 06.05.98. Hence, the bus could have fetched much more value if it had been sold immediately after impounding in 1998, but the bus was finally sold in 2004 for a sum of Rs. 92,000/- only. Hence, the defendant is responsible for converting the running bus into junk and then selling it at junk price after about 6 years of impounding. Hence, the defendant alleged that defendant is not liable to pay any amount to plaintiff, rather, the plaintiff is liable to pay the balance amount of Rs. 1,44,875/- to defendant no.1 after deduction of the loan amount due from the actual value of the bus.
The defendant no.1 had filed Written Statement cum counter claim. But he had not filed any court fees on the counter claim as per rules and has not claimed any amount in the prayer clause of Written Statement cum counter claim.
3 Replication was filed by the plaintiff to the Written Statement of all the defendants denying the allegations stated in of Written Statement and re-asserting the facts mentioned in the plaint. They specifically denied that any direction was ever passed by the National Commission for SC/ST, directing the plaintiff not to impound the bus till the final decision of the case. The plaintiff further asserted that the delay in auction and sale of the bus was caused by the defendant no.1 himself, hence, defendant no.1 is not entitled to recovery of counter claim of Rs.1,44,875/- as stated in para 13 of Written Statement.
4 Following issues were framed vide order dated 04.05.05:
1 Whether the plaintiff is entitled for the suit amount? OPP.
2 Whether the plaintiff is entitled for the interest? If so, at what rate? OPP.
3 Whether the defendant is entitled for his counter- claim? OPD.
4 Relief.
5 The case was fixed for P.E. Plaintiff examined Sh.Sanjeev Sharma, Deputy Manager (Law), DSFDC, as PW1 who tendered his affidavit and exhibited documents as Ex.PW1/A to Ex.PW1/I. He was duly cross-examined and discharged. Following documents were exhibited:
PW1/A- Office Order authorizing PW1 to file suit and give evidence on behalf of plaintiff.
PW1/B- Letter for release of loan by plaintiff to defendant no.1 for STA Bus, dated 28.01.1993 PW1/C- Vehicle sale invoice-cum-delivery challan dated 30.01.1993 signed by defendant no.2 to 5.
PW1/D- Bond of guarantee. PW1/E- Hypothecation Deed dated 20.01.1993. PW1/F- Letter regarding the auction of vehicle no. DL-1P-4627. PW1/G- Demand Notices (colly). PW1/H- Letter to Deputy Commissioner for recovery under
Land Revenue Act as arrears of Land Revenue dated 17.06.2002 PW1/I- Certified copy of Loan Account statement of defendant no.1.
PW1/D1- Letter written by defendant no.1 to plaintiff dated 17.12.2002 (confronted by defendant no.1 in cross-
examination of PW1).
6 The defendant no.1 was examined as DW1 on behalf of defendants. He exhibited documents DW1/1 to DW1/4 and Ex.DW1/6 to DW1/8. He was duly cross-examined and discharged. Following list of documents were exhibited:
DW1/1- Certificate of impounding of the vehicle dated 06.05.98. DW1/2- Certificate of impounding the vehicle dated 07.06.96. DW1/3- Certificate of Insurance of impugned bus, from 13.02.1998 to 12.02.1999 DW1/4- Letter written by Sh.Bhoop Singh to plaintiff dated 12.03.04.
DW1/5- N.A. DW1/6- Letter written by defendant no.1 Sh.Bhoop Singh to the
Chairman of DSFDC, New Delhi dated 09.12.2002 for diluting the dues.
DW1/7- Letter regarding the auction of vehicle no. DL-1P-4627 dated 15.11.2002 DW1/8- Letter by National Commission Director to defendant no.1 for pay outstanding dues, dated 10.03.2005. 7 After closure of evidence, the case was fixed for final arguments. Final arguments were heard on last date. After hearing final arguments and perusal of case file, my issue wise findings are as follows:
ISSUE NO. 1
Whether the plaintiff is entitled for the said amount?OPP.
Onus to prove this issue was on plaintiff. The plaintiff has exhibited the loan sanction letter dated 8.01.93 as Ex. PW1/B according to which loan of Rs.4,56,000/- was sanctioned in favour of defendant no.1 by the plaintiff in collaboration with NSFDC. The said letter contains terms and conditions upon which the loan was sanctioned to defendant no.1. As per the terms and conditions, rate of interest at that time was @ 6% p.a. on NSFDC share and @ 4% p.a. on DSFDC share of the loan amount, which had to be paid defendants within 5 ½ years after the moratorium period of 6 months, in monthly instalments. Plaintiff has also exhibited hypothecation deed of the vehicle as Ex.PW1/E and the invoice cum delivery challan dated 13.03.93, of the impugned vehicle as Ex. PW1/C to prove that the impugned vehicle was purchased and hypothecated by the defendant no.1 in favour of plaintiff. The bond of guarantee executed by defendant no. 2 to 5 is Ex.PW1/D. Both the documents i.e. Ex.PW1/D & Ex.PW1/E have been filled very casually and no amount of loan or amount of instalments has been mentioned in the documents.
The plaintiff has further exhibited the notice of demand served upon all the defendants as Ex. PW1/G (colly). Even in the notice of demand, the amount of original loan sanctioned in favour of defendant no.1, has been mentioned as Rs.4,20,000/- payable in 60 equal monthly instalments of Rs. 8,125/-each. The sanction letter i.e. Ex.PW1/B states that loan of Rs.4,56,000/- has been sanctioned whereas the plaint as well as the notice of demand exhibited by plaintiff itself reveals that the amount of Rs.4,20,000/- was sanctioned as loan to defendant no.1. The statement of loan account of defendant no. 1 has been Ex. PW1/I which reveals that total amount recoverable from defendants till the date of impounding of vehicle i.e. 05.04.98 was Rs. 2,37,416/-and the vehicle was sold for Rs. 92,000/-. Therefore, as per plaintiff, outstanding amount remained as Rs.1,45,416/-. However, the certificate of impounding of the vehicle exhibited as DW1/1 by the defendant, reveals that the overall dues of loan against defendant no.1 as on March'1998 was Rs.1,55,125/-. Hence, there is discrepancy between the amount of dues as mentioned in the statement of account i.e. Ex.PW1/I and amount of dues mentioned in the certificate of impounding i.e. Ex. DW1/1. The defendant has also exhibited the earlier certificate of impounding of the bus dated 07.06.96 as DW1/2 which reveals that the overall dues of loan as on 31.05.96 was Rs.1,32,250/-. The vehicle was impounded on 07.06.96 which was thereafter was released on payment of Rs. 250/- per day as impugned-cum-parking charges on request of defendant no.1 that he is ready to pay the remaining instalments. Perusal of loan account statement reveals that even after the date of impounding of the vehicle in 1996, the defendant no.1 had paid certain amount from July1996 to January 1998 to the plaintiff. As per the account statement i.e. Ex.PW1/I, the defendant had paid a sum of Rs.2,88,325/- to plaintiff till January 1998. As per the averments in the plaint as well as notice of demand, loan amount of Rs.4,20,000/- was sanctioned in favour of defendant no.1 out of which the defendant no.1 had paid Rs. 2,88,325/- till the date of impounding of the vehicle. The vehicle was impounded in 1998 but resold on 19.09.03 i.e. after the gap of 5 years. Moreover, the plaintiff has concealed material facts in his plaint and has not come to the court with clean hands. The plaintiff has not exhibited or placed on record any documents to show what proceedings were conducted before the National Commission for SC/ST where the case was pending and what was the result of that case. The plaintiff has already impounded the vehicle in 1998 and left the defendant no.1 without any source of income. The plaintiff resold the vehicle to recover its loss but had the vehicle been sold earlier at the appropriate time, the plaintiff could have fetched better value of the vehicle and could have recovered the outstanding loan amount out of resale of the vehicle itself. The plaintiff alleged that delay in reselling the vehicle was caused due to acts of defendant no.1, but no DOL/ letter has been placed on record to prove this allegations. Since, the plaintiff has been lethargic in pursuance of its own case and has not disclosed the complete facts before the court, the plaintiff is not entitled to any relief in the present suit. Issue no.1 stands decided against the plaintiff. ISSUE NO. 2
Whether the plaintiff is entitled for the interest? If so, at what rate? OPP.
Onus to prove this issue was on plaintiff.
This issue pertains to interest rate. Since issue no.1 stands has been decided against plaintiff, this issue is also decided against plaintiff.
ISSUE NO. 3
Whether the defendant is entitled for his counter- claim? OPD.
Onus to prove this issue was on defendant.
The defendant no.1 has filed Written Statement cum counter claim but has not paid any court fees as per rules of the counter claim. Moreover, the document exhibited by defendant no.1 to prove the value of impugned vehicle i.e. the certificate of insurance as Ex.DW1/3 reveals that Rs.3,00,000/- was the estimated value of the impugned vehicle as per the defendant no.1 himself. No valuation report by independent valuer has been filed on record to prove the actual value of vehicle on the date of impounding. Hence, the defendant no.1 is not entitled to any relief in the present suit. This issue is decided against defendant. RELIEF None of the parties is entitled to relief in the present case. Hence, the suit of the plaintiff as well as counter claim of defendant stands dismissed. No order as to costs.
Decreed sheet be prepared accordingly. Copy of this order be supplied to the parties as per rules.
File be consigned to record room.
Announced in the Open Court [ TYAGITA SINGH ]
Today on 24.05.2010 CIVIL JUDGE-01(NORTH)
DELHI
Suit. No. 1077/09
24.05.2010
Present: None
Vide separate judgment, None of the parties is entitled to relief in the present case and suit of the plaintiff as well as counter claim of defendant stands dismissed. Decree sheet be prepared accordingly. No order as to costs. File be consigned to record room.
[ TYAGITA SINGH ] CIVIL JUDGE-01(NORTH) DELHI/24.05.2010