Delhi District Court
Interalia Having Its Branch Office At vs Parul Gupta D/O Sh. Desh Bandhu Gupta on 2 March, 2022
IN THE COURT OF SHRI MAN MOHAN SHARMA,
DISTRICT JUDGE (COMMERCIAL COURT)-06,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
IN THE MATTER OF :-
CS (Commercial) No. 1098/2019
M/s ICICI Bank Ltd.
Having its registered office at
ICICI Bank Tower, near Chakli
Circle, Old Padra Road,
Vadodara-390007, Gurjarat, India.
Interalia having its Branch office at:-
E-Block, Videocon Tower,
Jhandewalan Extension
New Delhi-110055.
Through its authorized representative
Sh. Mohit Grover .....Plaintiff
VERSUS
Parul Gupta D/o sh. Desh Bandhu Gupta
(Borrower)
R/o Flat No. 1401, Tower-4 SPR,
Sector-82, near DPS School,
Faridabad-121005. .....Defendant
Date of Institution : 04.07.2019
Date of Reserve of Judgment : 02.03.2022
Date of Judgment : 02.03.2022
JUDGMENT
1. The plaintiff has instituted a suit for recovery of ₹ 3,40,222.72 (Rs. Three Lakh Forty Thousand Two Hundred Twenty Two and Seventy Two Paisa only) against the defendant on 04.07.2019.
CS (Comm.) No. 1098/2019 Page 1 of 10Plaintiff's Case
2. Briefly stated the case of the plaintiff is that it is a body corporate under the provisions of the Companies Act 1956. The suit has been instituted through its authorized representative Shri Mohit Grover.
3. The defendant approached the plaintiff for grant of a loan for purchase of a vehicle. The plaintiff acceded to the request of the defendant and sanctioned him a loan. The relevant particulars of the credit facility sanctioned by the plaintiff to the defendant are as under:
Loan Account no. LAFDB00035889071
Date of execution of 04.07.2017
documents
Make and Model of the HONDA AMAZE/SMT
vehicle
Registration number of HR-51BP-9045
vehicle
Equated Monthly Installment Rs. 9,229.00 (EMI) Rate of Interest 9.51% per annum Number of EMIs 48
4. The defendant executed various documents for a valuable consideration which included
(i). Credit Facility Application form;
(ii). Deed of Hypothecation;
(iii). Irrevocable Power of Attorney
5. After making certain payments, the defendant defaulted in repayment and therefore, the loan has been recalled vide recall notice dated 16.03.2019 calling upon him to make CS (Comm.) No. 1098/2019 Page 2 of 10 the payment of amount outstanding. Despite being duly notified the defendant did not come forward to pay the outstanding amount constraining the plaintiff to institute the instant suit.
6. The plaintiff has prayed that the suit be decreed in the sum of ₹ 3,40,222.72 (Rs. Three Lakh Forty Thousand Two Hundred Twenty Two and Seventy Two Paisa only) with interest @ 9.51% per annum w.e.f. 07.06.2019 till the realisation of the amount. Cost of the suit has also been prayed for.
Service of the Defendant
7. The process had been sent to defendant and he had been served on 14.01.2021 as recorded in the minutes of proceedings dated 15.09.2021.
8. Despite service the defendant did not cause appearance and had been proceeded as ex-parte vide the minutes of proceedings of the even date. The defendant did not join the proceedings thereafter.
Plaintiff's Evidence
9. In its evidence, the plaintiff has examined only one witness i.e. Shri Mohit Grover, its Authorized Representative, as PW-1.
10.PW1 tendered his oral evidence contained in affidavit Ex.PW1/A He tendered the following documents in evidence:-
Documents Exhibits
Copy of Power of Attorney Ex.PW1/1
Credit Facility Application Ex. PW1/2
CS (Comm.) No. 1098/2019 Page 3 of 10
Deed of Hypothecation Ex.PW1/3
Copy of Power of Attorney Ex.PW1/4
Copy of Loan Recall Notice Ex.PW1/5
Post Receipt of legal notice Mark 'X'
Statement of Account. Ex.PW1/6
Certificate u/s 2A of the Bankers Ex.PW1/7
Books Evidence Act
Certificate under Section 65-B of Ex. PW1/8
Indian Evidence Act, 1872
11.The plaintiff evidence has been closed on 29.10.2021.
Arguments
12.I have heard the submissions advanced by Ms. Barkha Sharma, ld. counsel for the plaintiff.
13.The defendant approached the plaintiff for grant of a loan for purchase of a vehicle by way of a Credit Facility Application Form. It amounted to a proposal/offer and when the plaintiff bank disbursed the loan, it amounted to the acceptance on the same terms and conditions as proposed by borrower/defendant. The plaintiff acceded to the request of the defendant and sanctioned him a loan. Thus, the entire transaction constituted a concluded contract between the parties.
14.Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
15.The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business.
CS (Comm.) No. 1098/2019 Page 4 of 1016.The testimony of the plaintiff's witness has remained unchallenged and un-impugned as the defendant has not come forward to defend the suit despite being duly served.
17.The suit is within the limitation. There is no legal impediment that the suit cannot be decreed in favour of the plaintiff.
18.The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
19. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(c) (i) of the Act.
20.The summons which has been sent to the defendant in this case have been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non-appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit and has been proceeded as ex-parte, the plaintiff is still liable to prove its case on pre-ponderance of probabilities.
21. PW- 1 has tendered his oral evidence which is contained CS (Comm.) No. 1098/2019 Page 5 of 10 in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for the plaintiff has placed strong reliance on judgment passed on 31.01.2018 by our own High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similarly placed as the facts in the case under consideration.
22.PW1 has tendered in evidence his Power of Attorney as Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act.
23.The authority to sue on behalf of the plaintiff has been stated in clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
24.One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.
25. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking CS (Comm.) No. 1098/2019 Page 6 of 10 business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship.
26.A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non-appearance, and the Court cannot speculate into the reasons for his non-appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre-ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
27.Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant had approached the plaintiff bank and executed Ex. PW1/2 seeking a credit facility. The bank acceded to the request and consequent upon the same the defendant executed various loan documents viz. Ex. PW1/2 to Ex. PW1/4. The defendant made various payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/6, maintained by the CS (Comm.) No. 1098/2019 Page 7 of 10 plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
28.The plaintiff has also served a notice Ex. PW1/5 upon the defendant calling upon him to clear the outstanding in his account. Due to non-compliance of its terms on the part of the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.
29.The loan has been disbursed on 04.07.2017. The suit has been instituted on 04.07.2019 and the same is therefore within the prescribed period of limitation.
30.The plaintiff has claimed the suit amount, the components of which have been stated in Ex. PW 1/6 as under:
Particulars Amount ₹
Principal outstanding 3,06,496.80
Late Payment Penalty 5,265.00
Cheque bouncing charges 3,894.00
Interest for the month 2,189.00
Prepayment charges 18,083.32
Interest on pending installments 4,293.70
Total 3,40,222.72
31. The plaintiff is entitled to the outstanding principal and interest. It is also entitled to the late payment penalty and cheque bouncing charges as the same have been occasioned due to the acts and omissions of the defendant. The same flow from the contractual relationship as per the terms and conditions settled and part forming of the loan CS (Comm.) No. 1098/2019 Page 8 of 10 documents. However no right to claim the pre-payment charges has been established by the plaintiff for the reason that it is case of recall of the loan on the part of the plaintiff and not a foreclosure on the part of the defendant. Thus, the plaintiff is not entitled to the same.
32.The plaintiff has claimed pendentelite and future interest w.e.f. 07.06.2019. It was incumbent upon the plaintiff to capitalize the interest in the suit amount as on the date of filing and he ought to have paid the court fee accordingly. Thus, the plaintiff is entitled to interest only from the date of institution of the suit. The plaintiff is entitled to interest @ 9.51% per annum which is the contractual rate of interest and the same appears to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances. The interest accrued till the date of decree shall be part of the decreetal amount.
33.Thus the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
34.The suit of the plaintiff is decreed in the sum of ₹ 3,22,139.40 (Rs. Three Lakh Twenty Two Thousand One Hundred Thirty Nine and Forty Paisa only with simple interest @ 9.51% per annum from the date of institution of the suit i.e. 04.07.2019 till realization of the entire amount. The interest accrued till the date of decree shall be part of the decreetal amount.
35.The plaintiff shall be entitled to the costs of the suits as well as per the rules. Certificate of counsel fee (if any CS (Comm.) No. 1098/2019 Page 9 of 10 submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, be deposited by the plaintiff within 30 days of the decree.
36.Decree shall be drawn accordingly.
Copy of the Judgment
37.In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
38.File be consigned to the Record Room.
Announced in the open court
Digitally signed by
MAN MAN MOHAN
MOHAN SHARMA
on 02.03.2022 SHARMA
Date: 2022.03.07
16:19:55 +0530
(Man Mohan Sharma)
District Judge (Commercial Court)-06 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 1098/2019 Page 10 of 10