Delhi District Court
Icici Bank Ltd vs Sachin Sharma on 3 May, 2024
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KKD, DELHI
CS Comm. No.343/2023
ICICI Bank Limited
Having its Registered Office
Near Chakli Circle, Old Padra
Road, Vadodaram, Gujarat-390007
Having its Branch Office At:
E-3, Jhandewalan, New Delhi ..........Plaintiff
Vs.
Sachin Sharma
S/o Sh. Vinod Sharma
C/o M/s Capgemini Technology
Services India Ltd. (Process Lead)
At: 139-140, A-Block, Special
Economic Zone, Phase-2,
Noida, UP- 201305
Also At:
H.No.1/6514, Azad Gali No.-2
East Rohtas Nagar, Shahdara
Delhi-110032 .............Defendant
Date of Institution : 26.07.2023
Date of Final Arguments : 03.05.2024
Date of Judgment : 03.05.2024
Decision : Decreed
Judgment
1.This suit is filed by plaintiff Bank for recovery of Rs.6,70,441/- alongwith interest @24% per annum as unpaid dues of personal loan.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the documents filed is that it is a duly incorporated company and is in the business of banking. It has filed this suit CS Comm No.343/2023 page 1 ICICI Bank Ltd. Vs. Sachin Sharma through its Authorised Representative. Defendant Sachin Sharma applied for a personal loan with the bank. The plaint does not disclose date of application. As per agreement dated 30.07.2020 personal loan of Rs.7 lakhs was sanctioned out of which Rs.6,74,095/- was disbursed on the same day. The loan was supposed to be repaid back in 60 EMIs of Rs.15,594/- each. The plaint does not mention any date from which the EMIs were payable. It is pleaded that defendant did not adhere to financial discipline and out of 31 due installments up to 22.03.2023 he paid only 16 and defaulted in 15 EMIs.
3. When the defaulted EMIs were not cleared plaintiff was constrained to issue notice of foreclosure of loan on 10.01.2023. There was outstanding debit balance of Rs.6,70,441/- as on 22.03.2023 apart from pre-payment charges of Rs.32,623/-. When the defendant never pre-paid any amount the question of plaintiff seeking pre-payment charge does not arise. Apparently, same is stated to have been not added in the suit claim. It is claimed that the last payment of Rs.2,200/- was made by defendant on 12.01.2022. Plaintiff approached Shahdara DLSA for Pre-Institution Mediation under Section 12A of Commercial Courts Act, 2015 wherein defendant did not participate and Non- Starter Report dated 19.05.2023 was issued. In this backdrop suit in hand was filed for follwoing reliefs:
Prayer:
i. Pass a decree for recovery of Rs.6,40,000/- in favour of plaintiff and against the defendant;
ii. Interest @24% per annum from the filing of the suit till realization of the decretal amount be also passed in favour of plaintiff bank and against the defendant including pendente lite and future interest may also be awarded in favour of the plaintiff and against the defendant;
iii. Costs of the suit be also passed in favour of the plaintiff bank and against the defendant and iv. Such further relief, order or direction as this Hon'ble Court deems fit be also passed in favour of the plaintiff bank and against the defendant.
4. Summons of the suit was served upon the defendant on 01.02.2024. When no WS was filed within thirty days or thereafter right of defendant to file WS was closed on 22.03.2024.
CS Comm No.343/2023 page 2 ICICI Bank Ltd. Vs. Sachin Sharma
5. Out of the pleadings following notional issues were identified by this Court on 22.03.2024:
Notional Issues:
i. Whether plaintiff is entitled to recovery of Rs.6,70,441/- alongwith interest @24% per annum? OPP ii. Relief Evidence
6. Evidence in this case was ordered to be recorded before Ld. LC Ms. Neelam Malik, Advocate as per protocol created by this Court under Order 18 Rule 4 CPC read with Order 15A Rule 6(l) and (o) CPC as applicable to Commercial suits.
7. To prove its case plaintiff examined its AR as PW1 Ashutosh Urmaliya. Vide affidavit Ex.PW1/A he deposed on the lines of plaint and exhibited following documents:
i. Copy of power of attorney is Ex.PW1/1;
ii. Personal loan application form is Ex.PW1/2;
iii. Credit facility application form is Ex.PW1/3; iv. The disbursement memo is Ex.PW1/4;
v. The statement of account dated 22.03.2023 is Ex.PW1/5 (colly.); vi. Certificate under Section 65B of Indian Evidence Act, 1860 is Ex.PW1/6; vii. Certificate under Section 2A of the Banker's Books of Evidence Act, 1891 is Ex.PW1/7; viii. Office copy of loan recall notice dated 10.01.2023 is Ex.PW1/8 (colly.) and postal receipt thereof is marked as Mark X (colly.)
8. None appeared on behalf of defendant for cross-examining the witness.
9. I have heard arguments of Sh. Manish Deewan, Ld. Counsel for plaintiff assisted by AR of plaintiff namley Ashutosh Urmaliya in person . None has appeared on behalf of defendant to argue the case. I have perused the case file carefully.
10.Now I shall dispose of individual issues framed in this case.Issue No. 1
i. Whether plaintiff is entitled to recovery of Rs.6,70,441/- alongwith interest @24% per annum? OPP CS Comm No.343/2023 page 3 ICICI Bank Ltd. Vs. Sachin Sharma
11.Vide referring to staement of account Ex.PW1/5 it is stated that out of principal amount of Rs.7 lakhs defendant paid Rs.1,47,052/- leaving principal balance of Rs.5,52,948/- apart from interest and late payment charges.
12.The evidence in this case is primarily documentary. The documents relied upon 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 business, these documents can be considered to be duly executed in due course of the banking business and capable of binding the parties into a contractual relationship.
13.The pleadings in the plaint and annexed documents have remained unrebutted, unchallenged and uncontroverted. In the absence of any plausible denial on behalf of defendant, case of the plaintiff is deemed to be admitted. On the basis of pleadings, evidence led and the documents exhibited plaintiff has discharged the onus of proving his case.
Interest:
14.As far as interest is concerned plaintiff has claimed interest @24% per annum. The interest is payable as per Section 34 CPC. For ready reference, Section 34 CPC is reproduced hereunder:
Section 34 CPC: Interest
(i)"Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6% per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the court thinks fit.
(ii).Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6% per annum but shall not exceed the contractual rate or interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
Explanation (i) In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970.
CS Comm No.343/2023 page 4 ICICI Bank Ltd. Vs. Sachin Sharma Explanation (ii) For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability. Where such a decree is silent with respect to the payment of further interest (on such principal sum) from the date of the decree to the date of the payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
(Emphasis Supplied)
15.Section 34 CPC provides that plaintiff will be entitled the interest at the rate at which Court finds reasonable. For a general suit, the rate of interest prescribed is 6% and for commercial suit, the Parliament promulgates that rate of interest may increase from 6% to a rate which is found reasonable. Plaintiff is accord- ingly entitled to only the rate at which RBI has issued Circular for Commercial suits.
16.As far as the interest is concered, rate applicable to Commercial transaction shall be payable. As per RBI notification dated 30.08.2022 issued vide Press Release no.2022-2023/794 whereby advisory issued by RBI to Schedule Commercial banks of accepting deposit rates @ 9.05% per annum.
Relief
17.In view of the above, suit of the plaintiff is decreed with cost for a sum of Rs. 6,70,441/- alongwith interest @9% per annum pendente lite and till realization. No pre-suit interest is sought. Lawyer's fees is assessed as Rs.25,000/-.
18.Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
(SURINDER S. RATHI) District Judge, Commercial Court -03 Shahdara District, KKD Delhi/03.05.2024 CS Comm No.343/2023 page 5 ICICI Bank Ltd. Vs. Sachin Sharma