Delhi District Court
Delhi Sc/St/Obc/Minority/Ph/Fin. & ... vs Sh. Prakash Chand (Since Deceased) on 15 October, 2013
IN THE COURT OF SH SUNIL K. AGGARWAL: ADDL.
DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No. 1204/08
Delhi SC/ST/OBC/Minority/PH/Fin. & Dev. Corp. Ltd.
Govt. of Delhi Undertaking,
Ambedkar Bhawan Institutional Area,
Sector16, Rohini,
Delhi110054.
Also at :
2, Battery Lane, Rajpur Road,
Delhi110054. ..... Plaintiff.
VERSUS
1. Sh. Prakash Chand (since deceased),
represented by his legal heirs
1. Mrs. Sushila (wife)
2. Mr. Pawan Paharia (son)
3. Mr. Sunil (son)
4. Ms. Sonu (Daughter)
5. Ms. Anu (Daughter)
All R/o C189, J. J. Colony, Khanpur,
New Delhi.
2. Sh. Rajender,
S/o Sh. Ram Sahai,
R/o C7677, Ambedkar Nagar,
SectorII, New Delhi62.
3. Sh. Suresh Kumar,
S/o Sh. Lal Chand,
R/o 921, SectorVIII, R. K. Puram,
New Delhi22.
Suit no. 1204 of 2008 Page no. 1 of 8
4. Sh. B. S. Rajora,
S/o Sh. N. C. Rajora,
R/o 148/6, SectorI, Pushp Vihar,
Saket, New Delhi. .....Defendants.
Plaint presented on 23.01.2008
J U D G M E N T :
1. Plaintiff claiming to be a Government undertaking controlled and financed by the Govt. of NCT of Delhi has filed this suit for recovery of Rs. 6,48,282/ with interest @ 18% per annum through Sh. S. P. Jaiswal, Manager (L&E). It is stated that plaintiff is providing financial assistance to different categories of persons in the form of loan under various schemes. The loan of Rs. 5,35,000/ was disbursed to the defendant no. 1 for purchase of a Tempo Traveler. It was to be refunded in 61 monthly installments as per the terms and conditions of the loan. Defendant no. 1 had hypothecated the vehicle in favour of the plaintiff by executing a deed in this behalf and had offered defendant no. 2 to 4 as his guarantors for repayment of loan amount who had executed the bond of guarantee in favour of the plaintiff. The defendants thus undertook joint and several responsibility to repay the entire loan amount. They however failed to pay the installments regularly and did not mend their conduct despite service of letters, reminders and notices dated 22.08.2001, 17.05.2002 and 16.07.2007. Defendant no. 1 had however acknowledged the debt lastly on 10.03.2008. A sum of Rs. 6,42,282/is outstanding against the defendants after adjusting all the payments received from Suit no. 1204 of 2008 Page no. 2 of 8 them as per the account maintained by the plaintiff for which recovery has been sought.
2. Defendant no. 1 was reported to have died. Notice of application seeking substitution of his legal representatives was served on them. Sh. Pawan Paharia had actually appeared in the court on 25.05.2010 but vanished thereafter. The substitution application therefore was allowed in view of no opposition on 27.07.2010 and the legal representative deceased defendant no. 1 were impleaded in his place. Defendants no. 2 and 4 were served through registered post. They did not appear in the case nor submitted their defence within the statutory period under Order VIII Rule 1 CPC hence were proceeded exparte on 15.03.2010. On continuous absence of LRs of defendant no. 1, they were also proceeded exparte on 31.08.2010.
3. Only defendant no. 3 has contested the suit by taking preliminary objections in the written statement that the suit is bereft of cause of action; filed beyond limitation and has not been properly valued. It is contended that the court has been approached by the plaintiff by suppressing the material facts. On merits, defendant no. 3 denied having stood as a guarantor of defendant no. 1 for repayment of loan amount or having signed a bond of guarantee in favour of the plaintiff. There was no question of plaintiff sending him any letters, reminders or notices for payment of any outstanding amount. The execution of acknowledgment by defendant no. 1 has been denied for want of knowledge. It has been Suit no. 1204 of 2008 Page no. 3 of 8 urged that suit is liable to be dismissed under Order VII Rule 11 CPC.
4. On the basis of pleadings, following issues were framed on 31.08.2010:
1. Whether the suit has been filed within the period of limitation? OPP.
2. Whether defendant no. 3 had signed document in favour of the plaintiff thereby standing as Guarantor of defendant no. 1? OPP.
3. Whether the plaintiff is entitled to recover the suit amount with interest from the defendant? OPP.
4. Relief.
5. Plaintiff has examined Sh. Ashok Kumar Sakkarwal, Manager (Legal) in support of their case who has narrated the facts and proved minutes of meeting dated 10.01.2006 Ex. PW 1/2, Letters sent to the defendants and acknowledgment as Ex. PW 1/3 to 1/8 and statement of account Ex. PW 1/9. He had closed the evidence of plaintiff on 06.12.2010.
6. Defendant no. 3 has examined himself as D3W1 and denied that letter Ex. PW 1/6 was written by him. He intended to examine Sh. Krishan in support of his case and had even filed his affidavit but the witness did not come forward on availing several opportunities. Ultimately, the opportunity was closed on 30.07.2012.
7. I have heard Sh. Vijay Rajora, Adv. Ld. counsel for the defendant no. 3 and carefully perused the record. Ld. counsel for the Suit no. 1204 of 2008 Page no. 4 of 8 plaintiff did not come forward to assist the court despite adequate opportunity having been afforded. I have carefully gone through the file. Absolutely no question was put to PW1 in cross examination in respect of the valuation of the suit. Even during the course of arguments the preliminary objections was not touched. The plaintiff having valued the suit on the consolidated amount of outstanding principle and accrued interest and paid the court fee accordingly, no apparent mistake is garnered. The objection of defendant no. 3, therefore, is repelled. Issue wise findings of the court is recorded hereunder:
8. Issue no. 1: Mysteriously the suit is bereft of several of basic features of a loan recovery claim. Neither the date when the defendant no. 1 had applied for loan, is specified nor the date of sanction/disbursal of loan disclosed. The nature of documents got executed from the borrower in lieu of disbursal of loan also remained under wraps. The dates when Hypothecation Deed and the Bond of Guarantee were executed are un necessarily concealed by the plaintiff. A perusal of statement of account Ex. PW1/9 reflects that the loan was disbursed on or about 13.05.1999. Starting from 13.06.1999, the 61 refund installments would have culminated on 13.06.2004. The filing of suit in October, 2008 therefore, was much beyond the 3 years period of limitation. 8 (b) No payment in the loan account was made by the borrower/guarantors after 19.03.2001. Continuous default on their part made the loan account stale particularly when no agreement has been Suit no. 1204 of 2008 Page no. 5 of 8 produced to the effect the liability was to enure till the last prescheduled installment.
8 (c) Apparently the plaintiff has placed much reliance on letter dated 10.03.2008, Ex. PW1/8 written by defendant no. 1 to the plaintiff urging for grant of time to pay the outstanding amount in small installments. The reference however is misplaced. In order to renew the limitation of an actionable claim, the acknowledgment should have been made within the period of limitation. In the present case however the last installment was slated for payment on 13.06.2004. Any written acknowledgment of liability executed till 12.06.2007 would have given a fresh lease to the claim of plaintiff. The acknowledgment Ex. PW1/8 having reached the plaintiff subsequently is incapable of reviving the claim.
8 (d) Just because the plaintiff had requested the defendant to clear the outstanding liability of loan account by writing several letters will not extend the limitation period for filing the recovery suit in the court. Even the last letter dated 16.07.2007, Ex. PW1/7 was written after the expiry of limitation period. The issue therefore, is decided in affirmative.
9. Issue no. 2: Since the plaintiff has failed to produce loan application, loan agreement, hypothecated deed and bond of guarantee purportedly executed by the defendants at the time of grant/disbursal of loan to defendant no. 1 without attached explanation, the issue unmistakably deserves to be decided in negative. It is however, necessary to Suit no. 1204 of 2008 Page no. 6 of 8 appreciate that the hand written letter dated 24.09.2002 Ex. PW1/6 has been mischievously disowned by defendant no. 2 despite the same having apparently been signed by him. He had tried to change track by signing his affidavit differently but by that time he had already signed his written statement dated 30.03.2010 and the Vakalatnama dated 26.02.2010 akin to those appearing on said letter. He had tried to improve his case by deposing that his signatures were obtained by the officers of plaintiff on blank printed proforma/forms going beyond his pleadings. He had also not pleaded that more than 50 borrowers had collected by the plaintiff in their office on the day of disbursal of loan to defendant no. 1. The letter Ex. PW1/6 reveals that defendant no. 3 intended to get the Bond of Guarantee signed by him in respect of financial facility provided to defendant no. 1, cancelled. Even otherwise having signed documents capable of being converted into valuable security and remaining stoically silent thereafter for years together depicts the hollowness of assertion of defendant no. 3 that he had just signed the loan documents as a witness.
10. Issue no. 3: Statement of Account Ex. PW1/9 indicates that loan was given by NSFDC and the plaintiff DSFDC in the ratio 2.75 : 1. It appears that both components carried different rates of interest and the installments deposited by the borrower were appropriated in the ratio of loan. The fact that substantial part of the loan was contributed by NSFDC was not disclosed in the pleadings. Neither NSFDC has been impleaded in the suit nor the plaintiff has disclosed its locusstandi to sue for the Suit no. 1204 of 2008 Page no. 7 of 8 outstanding amount of NSFDC.
10 (b) The documentary proof of dispatch of letters Ex. PW1/3 to Ex. PW1/5 and Ex. PW1/7 have neither been produced in the court nor proved. The testimony of defendant no. 3 that he had received none of them, therefore will have to be believed. The plaintiff has also failed to explain as to how the demand letters in respect of subject loan were forwarded to Sh. Madan Lal Khatik while none of them was endorsed to defendant no. 4. In the absence of vital documents forming basis of the claim of plaintiff, its entitlement to recover the suit amount from any of the defendants cannot be canvassed. There is no question of considering the grant of interest. The issue is decided in negative.
11. Issue no. 4: In the background of reasons recorded above, plaintiff is held not entitled to any relief in the suit which is dismissed.
12. Parties however are left to bear their respective costs. Decree sheet be accordingly prepared. File be consigned to record room. Announced in the open court on 15th October, 2013 (Sunil K. Aggarwal) Addl. District Judge (Central)10 Delhi.
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