Bangalore District Court
M/S Hdfc Bank Ltd vs Mr.H.N.Allamaprabhu on 28 June, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL&
SESSIONS JUDGE,MAYOHALL UNIT, BENGALURU
(CCH-74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE
Dated this the 28th day of June, 2019.
O.S NO. 27006/ 2013
Plaintiff: M/s HDFC Bank Ltd.,
Having its Registered Office at
"HDFC Bank House", Senapati Bapat Marg,
Lwer Parel - (West),
Mumbai - 400013
Branch Office at Golden Towers,
3rd Floor, Old Airport Road,
Kodihalli, Bengaluru - 560017.
Represented by its Officer and POA Holder
Sri.Darshan Kanth Pondhe
(By SA Associates - Adv.)
Vs.
Defendant: Mr.H.N.Allamaprabhu,
S/o H.B.Nanjundaradhya,
Aged about 61 years,
R/at No.25, A-1, Daffodil Apartment,
Church Street, Next to Guru Apartment,
Bengaluru-560 001.
And also at
Mr.H.N.Allamaprabhu
M/s Prabhu Photos
No.71-1, Brigade Road Cross,
2
Bengaluru-560001.
[By Sri.Suresh S Lokre. - Adv.)
Date of Institution of the suit 21.12.2013
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Money Suit
for injunction, etc.)
Date of the commencement of
26.09.2016
recording of the Evidence.
Date on which the Judgment was
28.06.2019
pronounced.
Year/s Month/s Day/s
Total duration 05 06 07
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
JUDGMENT
The plaintiff has filed this suit for recovery of money sum of Rs.8,33,641,/-(Rupees Eight Lakhs Thirty Three Thousand Six Hundred Only) interest at the rate of 16.19% per annum from 30.09.2013 till realization.
2. Brief facts of the plaintiff's case:
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The Plaintiff is a Company incorporated under the companies Act having it registered office at HDFC Bank House Senapathi Bapat Marg.Lower (West), Mumbai, its branch office at Golden Towers, 3rd floor Old Airport Road Kodihalli Bengaluru. Plaintiff Bank engaged in the business of rendering financial facilities, in the form of loan to the intending borrowers. In the course of its financial services it had introduced used/New Car loan and Auto loan facilities to its customers. In the month of January 2008, the Defendant had approached Plaintiff bank for financial assistance of Rs.6,00,000/- for purchase of Honda City ZXVTEC bearing Registration No.KA03 ME 9911, after considering the application, the Defendant was sanctioned a used care purchase loan of Rs.6,00,000/-, for purchase of said car, on 02-01-2008, vide loan agreement No.12543880 repayable in 36 equated monthly installments of Rs.21150/-, each commencing from 07-02-2008 to 07-01-2011. consequently, the said vehicle bearingNo.KA03 ME 9911 was hypothecated to the Plaintiff Bank.4
3. Further the Plaintiff Company contended that, in order to secure the amount of loan, the Defendant had executed agreement for Auto loan dated 02-01-2008 and irrevocable power of Attorney at the time of availing the loan, Defendant was made fully aware of rate of interest, tenure of the loan, equated monthly installment of the loan and rate of interest and other charges the Defendant fixed is EMI. Plaintiff bank had made persistent requests to the Defendant to abide by the terms of the agreement entrust into between the Plaintiff bank and Defendant. So, the Plaintiff bank had issued notice dated 03-10-2013, to the Defendant calling upon him to pay outstanding amountRs.8,33,641/- within 7 days from the date receipt of the notice, Defendant did not paid the said amount. Plaintiff Company had made efforts to re-possess the hypothecated car but Defendant had keep the car beyond the reach of Plaintiff, Plaintiff constrained to file this suit.
4. On the other hand the Defendant had filed Written Statement contending that the Defendant had denied the loan transaction invalid this suit. Further contended that 5 Defendant had not approached the Plaintiff's Bank in the month of January 2008, for financial assistance of Rs.6,00,000/-, for the purchase of Honda City ZX VTEC bearing Registration No.KA-03-ME-9911, agreement dated 02- 01-2008 has executed by Defendant with Plaintiff, Defendant never hypothecated the said car to the Plaintiff's Bank, as Defendant is not owner of the said Car, so question of hypothecation does not arise. Defendant had never executed any demand promissory notes and power of attorney, Defendant had not purchased any vehicle as alleged in the plaint, further Defendant had not purchased the vehicle so, question of keeping vehicle beyond the reach of the laintiff does not arises. notice has not received by the Defendant.
5. Further Defendant had contended that Defendant being old customer, taking disadvantage of this fact, the Plaintiff have created false documents and filed false case against the Defendant no registration certificate has produced before the court to show that Defendant had purchased the car bearing No. KA 03 ME 9911, said vehicle never existing in the name of Defendant, it is the case of the Plaintiff that 6 Defendant had hypothecated the Car to the plaintiff Bank, then Plaintiff bank had every right to repossess the car over the hypothecation, what prevent the Plaintiff to produce the hypothecation agreement if the vehicle beyond the reach of Plaintiff, what prevent the pf to produce registered certificate to show that car is in the name of Defendant as contended by the Plaintiff. With this Defendant prayed for dismissal of the suit.
6. On basis of pleadings of the parties, my learned predecessor, has framed following:
ISSUES
1. Whether the Plaintiff Bank proves that during January-2008 the deft. has availed a loan of Rs.6.00 Lakhs from the Plaintiff Bank towards purchase of Honda City ZX VTEC Car bearing Reg.No.KA-03-ME-9911?
2. Whether the Plaintiff Bank proves that the deft. was agreed to repay the said loan in 36 EMI's of Rs.21,150/- each including interest at 16.19% Per Annum from 07-02-2008 to 07-01-2011?
3. Whether the Plaintiff Bank proves that their exists outstanding balance of Rs.8,33,641-00 as on 03-10-2013?7
4. Whether the Plaintiff Bank is entitled to the relief's as sought ?
5. What order or decree?
7. The representative of the Plaintiff Bank, is examined as PW.1 in view of the transfer of PW.1 the Plaintiff company had substituted PW.2 in the place of PW.1, as per order dated 07-03-2017, newly authorized person is examined as PW.2 and got marked Ex.P1 to P11 and closed his side and though Defendant filed Written Statement but he is not examined any witness in support his defence taken in the Written Statement.
8. The learned counsel for the Plaintiff has filed written arguments and on 03-06-2019 the learned counsel for the Plaintiff has filed Memo with computerized copy of judgment in CC No.19171/2016.
9. Heard argument of learned counsel for the Defendant.
10. My answer to above Issues are as follows:
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.8
Issue No.4 : In the Negative.
Issue No.5 : As per the final order, for the following:
REASONS
11. Issue No.1 & 2: In order to prove the case, the representative of the Plaintiff Bank, PW.1and PW.2, who have authorized by the Plaintiff Bank, are examined as PW.1 and PW.2 and got marked Ex.P.1 to Ex.P.11. It is the case of the Plaintiff Bank, Plaintiff being bank, had advanced the loan of Rs.6,00,000/- to Defendant , on the application made by the Defendant and Defendant had executed loan agreement, executed demand promissory note and Defendant had hypothecated the vehicle to the Plaintiff Bank, After taking alleged loan, in terms of loan agreement Defendant failed to repay the said loan in terms of agreement.
12. I have perused the oral and documentary evidence led by the Plaintiff, it is the specific case of the Plaintiff that Defendant had purchased the car bearing No.KA-03 ME 9911, no hypothecation agreement is produced before the court and more particularly the Plaintiff has not produced registration 9 certificate to show that Defendant had taken loan for purchase of used car, further it is specific case of the Plaintiff that the Defendant had hypothecated the said car to the Plaintiff bank. Further it is the case of the Plaintiff that, the Defendant had keep the vehicle beyond the reach of the Plaintiff, then used car is not stands in the name of Defendant, how Defendant could keep the Car beyond the reach of Plaintiff. Further if the used car is kept to beyond the reach of Plaintiff then what prevent the Plaintiff to produce the certified copy of the registration certificate, it is the public document, anybody can have its copy by filing necessary application with required fee, but no such efforts has made by Plaintiff to prove atleast to show that Defendant is the owner of the said Car. Secondly when Defendant had hypothecated the car to the bank and obtained the loan, But Plaintiff Bank had every right to repossess the vehicle.
13. Now it is relevant to appreciate Ex.P3. Ex.P3 is the loan agreement which does not bears the date. But the schedule of Ex.P3 fill up by using different ink, different hand writing. I have carefully scrutinized Ex.P3, on scrutiny it is 10 seen that schedule of Ex.P3 had fill up different hand writing and in different ink. PW.2 has admitted in the Cross- examination that Ex.P3 the agreement for Auto loan is not bears the name and witnesses signature, further PW.2 deposed in cross examination that it is loan for used car and the Defendant existing customer. Further PW.2 admits that, Ex.P3 is the loan agreement, date of execution is not mentioned. PW.2 admits in his cross that, Ex.P4 is the demand promissory note does not contain the name and signature of the witness.
I have perused Ex.P4 which is in printed form, which contained two printed form in one page, one is demand promissory note, another one relinquish of claim, the Plaintiff is fill up one form i.e. demand promissory note, but not fill up relinquishing of all claims but Plaintiff bank took the signature of the Defendant on two form.
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14. So, it is clearly shows that, Plaintiff had took the Defendant 's signature on blank paper fill up without knowledge of Defendant it is admitted fact that Defendant is old customer of Plaintiff Bank, he had other loan Account with Plaintiff Bank. Further the learned counsel for the Plaintiff has produced computerized copy of judgment in CC No.1917/2016. I have gone through the judgment it is seen that, the Plaintiff bank had initiated the proceedings against the Defendant u/S 138 of NI Act, and Defendant was convicted for the offence punishable u/S 138 NI Act.
15. On perusal of the loan transaction is different from the alleged loan involved in this suit. But it is clear that Defendant is old customer Now it is relevant to appreciate Ex.P10 which is vehicle inspection with regard to its value. I have perused Ex.P10 it is clear that car bearing No. KA-03 ME 9911 Honda city ZX VTEC is stands in the name of Roopa Allama Prabhu , who is not party to this proceedings same is not standing in the name of Defendant. So, careful perusal of the Ex.P3 loan agreement Ex.P4 promissory note. On perusal 12 of the oral and documentary evidence it is clear that, Plaintiff Bank has failed to prove that Defendant had taken loan of Rs.6,00,000/-, for purchasing used car bearing No.KA-03 ME 9911, Honda city ZX VTEC, further Plaintiff failed to prove that the Defendant agreed to pay the loan in 36 EMI of Rs.21,150/- each including interest at the rate 16.19% per annum from 07-08-2008 to 07-01-2011. Hence, I answer issue No.1 & 2 in the Negative.
16. Issue No.3 & 4: These two issues are interconnected to each other hence, I proposed to answer these two issues commonly by appreciation of oral and documentary evidence of both the parties.
17. I have perused the Ex.P5 legal notice issued by the Plaintiff Bank to the Defendant which reads thus:
Sir, Ref: Agreement No.12543880 Under the instructions from our client, HDFC BANK LTD., at Golden 13 Towers, 3rd Floor, Old Airport Road, Kodihalli, Bengaluru-560017, we address you as under;
1.This is with reference to the above Agreement under which you have availed from our client's Bank, loan facilities against hypothecation of the captioned vehicle upon terms and conditions more particularly mentioned thereunder and in discharge of the financial liabilities arisen in connection therewith, you undertook to repay the same by way of monthly installments.
2.Our client regrets to note that , despite their repeated requests, reminders and personal follow ups, you have failed and neglected to pay to our client's Bank, the amounts contractually liable to be paid to our client's Bank under the above agreement. Pleas note that, as a result of your continuous default in making payment of the over due amounts as and when the same fell due, the total amount payable by you together with other contractual charges has accumulated to the tune of Rs.8,33,641/- as on 30.09.2013.
18. Ex.P5 clearly shows that, the Plaintiff had issued notice on 03-10-2013 and suit has been field on 21-12-2013 just before the filing of the suit. So, on careful scrutiny on Ex.P5 it is seen that Plaintiff bank had given instruction to 14 the advocate saying that Defendant had taken loan by hypothecating the vehicle upon the terms and conditions mentioned under the hypothecation agreement. On perusal of the contents of the Ex.P5 it is clear that, the Plaintiff bank had hypothecation agreement in its custody just before 2 months from filing of the suit then what prevents the Plaintiff produced the same to prove that the Defendant had taken loan by hypothecating the car if really Defendant had taken loan from the bank. So, the Plaintiff failed to produce the registration certificate of Car No.KA-03 ME 9911 to show that, the vehicle stands in the name of Defendant has contended by the Plaintiff. These facts clearly established that there is no transaction in between the Plaintiff and Defendant. In the absence of documents it cannot be held that the Plaintiff had loan agreement and taken loan from the Plaintiff bank by hypothecating the car which is not stands even in the name of Defendant. Hence, when Plaintiff failed to prove the loan transaction with Defendant then the question of outstanding balance of Rs.8,33,641/- does not arise. The learned counsel for the Defendant submitted that this court has framed as 15 many as 5 issues putting burden of proof on the Plaintiff to prove all issues involved in the suit. Further he submitted that non-examination of Defendant and any witnesses on his behalf is not fatal to the case of the Defendant as it is for the Plaintiff who has to prove his case independently. I have perused the material placed before the court and with the above observation, I hold that, the Plaintiff has failed to prove his case. So, the Plaintiff is not entitle for relief sought in the plaint. With this observation, I answer these two issues in the Negative.
19. Issue No.5 : In-view of the discussion made on Issue Nos.1 to 4, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then 16 pronounced by me in the open court on this the 28th day of June, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH-74), ANNEXURE List of witnesses examined for the plaintiff's side:
PW1: Darshan Kanth Pondhe PW2: Niranjan B. List of documents exhibited for the plaintiff's side:
Ex.P.1: Authorization Letter Ex.P.2: Loan application form dated 29-12-2007 Ex.P.3: The Agreement for Auto Loan. Ex.P.4: Demand promissory note dated 02-01-2008 Ex.P.5: Legal Notice dtd.03.10.2013. Ex.P.6 and 7 : Two postal receipts . Ex.P.8: Bank loan Statement Ex.P.9: Power of attorney. Ex.P.10: Vehicle Inspection. Ex.P.11: Letter dated 03-02-2008 List of witness examined for the defendant side :
...Nil...
List of documents exhibited for the defendant's side:
...Nil...
17 (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH-74)