Delhi District Court
Also At vs Neeyaz Ahmad on 3 June, 2015
IN THE COURT OF Ms. ANJANI MAHAJAN, CIVIL JUDGE-10
(CENTRAL)/DELHI
SUIT NO. 305/14
EX-PARTE JUDGMENT
Unique ID No. 02401C0038412013
MEMO OF PARTIES
HDFC Bank Limited
A banking company incorporated and registered
under the Companies Act, 1956.
Having its registered office at:
Sandoz House, Doctor A.B. Road,
Worli, Mumbai - 400018
And Branch office at:
9th Floor, Ansal Classique Tower,
Plot no. 1, J-Block, Community Centre,
Rajouri Garden, New Delhi.
Also at:
2nd floor, Express Building,
Bahadurshah Zafar Marg, New Delhi.
Through its authorized representative
Mr. Gopal Ranga ......Plaintiff
Versus
Neeyaz Ahmad
S/o. Mohd, Ayaz Ahmad,
H.No. 7/5, Moulsree Road,
Shipra Sun City, Ghaziabad-201014, Uttar Pradesh
.......Defendant
Date of institution of Suit: 28.01.2013
Date on which judgment was reserved: 25.05.2015
Date of pronouncement of Judgment: 03.06.2015
SUIT FOR RECOVERY OF Rs. 1,84,686.98 (RUPEES ONE LAKH EIGHTY
FOUR THOUSAND SIX HUNDRED EIGHTY SIX AND NINETY EIGHT PAISE
ONLY
Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 1/10
Judgment
1.This judgment shall decide the suit for recovery of amount filed by the plaintiff against the defendant. Initially the suit was filed under the summary provisions of Order 37 CPC. Vide order dated 29.01.2013 the suit was converted to an ordinary suit by way of order.
2. The plaintiff's case is that the plaintiff is a bank incorporated under the Companies Act and having its registered office at HDFC Bank House, Senapati Bapat Road, Lower Parel, Mumbai. It is averred that the defendant approached the plaintiff for grant of personal loan under the Loan Scheme of the plaintiff bank. The defendant applied for a loan of Rs. 2,00,000/ (Rupees Two Lakh only) and entered into a loan agreement/credit facility application form with the plaintiff bank.
3. The plaintiff avers that it disbursed a loan of Rs. 1,95,073/ (Rupees One Lakh Ninety Five Thousand Seventy Three only) to the defendant in terms of the loan agreement no. 16764863 dated 05.07.2010. An amount of Rs. 4927/ (Rupees Four thousand Nine Hundred Twenty Seven only) was deducted towards processing fee, stamp duty and other charges. The defendant undertook to repay the loan in 48 (Forty Eight) equated monthly installments of Rs. 5875/ (Rupees Five Thousand Eight Hundred Seventy Five only) each as per Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 2/10 the repayment schedule. The defendant executed the loan agreement/credit facility application form and demand promissory note on 07.06.2010.
4. The plaintiff states that the defendant failed to adhere to the financial discipline and defaulted in repayment of Rs. 83,528/ (Rupees Eighty Three Thousand Five Hundred Twenty Eight only) due as on 11.12.2012 as per the payment schedule. Despite several reminders the defendant failed to honor his commitments.
5. The plaintiff further contends that while sanctioning and disbursement of loan certain documents were executed by the plaintiff bank and the defendant i.e. loan application, loan agreement and demand promissory note and in order to keep the documents in safe custody the bank had framed a detailed process of maintaining all kinds of documents and correspondence between the customer and the banker and utmost care would be taken to maintain the secrecy of the loan. It is contended that upon execution of the aforesaid documents by the customer the bank would keep the same in a separate file and each file would be given a unique identity number and loan account number and to keep the customers' files safe the bank entered into the agreement with the vendor M/s. Navbharat Orkive Express Pvt. Ltd. (district Panval) and all the original documents pertaining to the Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 3/10 customers would be stored with said vendor. Whenever a file was required for initiating legal proceedings or other purposes the bank's officials were required to take necessary approvals from their superiors and only after approval the documents would be retrieved from the vendor and handed over to the bank's officials. The bank's officials were accountable for these files and the central team would monitor the same and take necessary confirmation from the bank's officials on a monthly basis and on completion of the required activity the original documents would be handed over to the vendor.
6. The plaintiff further states that on 02.09.2011 at about 11am a fire broke out at the godown of the vendor and certain original files belonging to the plaintiff bank got burnt and destroyed in the mishap. The Kalamboli police had registered the case 08/2011 and investigation was going on. The original documents pertaining to the defendant also got destroyed and plaintiff states that it has no option but to prove his case by adducing secondary evidence so far as the production of the loan application, agreement and promissory note were concerned.
7. The plaintiff avers that the defendant by his own conduct has voluntarily performed the contract by paying the installments as per the statement of accounts. A loan recall notice dated 17.12.2012 was sent to the defendant. Despite receipt of the notice the defendant neither replied Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 4/10 to the same nor repaid the outstanding amount. As on 11.12.2012 a sum of Rs. 1,84,686.98/ (Rupees One Lakh Eighty Four Thousand Six Hundred Eighty Six Ninety Eight paise only) was due from the defendant towards principal, interest, penal interest, legal charges and other dues therefore the present suit was filed by the plaintiff.
8. The defendant was served by way of publication dated 21.02.2014 however the defendant neither appeared nor filed the written statement therefore vide order dated 07.05.2014 the defendant was proceeded ex parte.
9. In exparte PE the plaintiff examined Sh. Gopal Ranga, authorized representative of the plaintiff bank as PW1 who relied on and exhibited the following documents:
I. Ex.PW1/1(OSR) Power of attorney.
II. Ex.PW1/2(OSR) FIR in Marathi language.
III. Ex.PW1/3(OSR) Translation of the FIR in English language.
IV. Ex.PW1/4 Loan recall notice.
V. Ex.PW1/5 colly Postal receipts.
VI. Ex.PW1/6 Certified copy of the account statement.
10. Final arguments were advanced by Ld. counsel for the plaintiff before the Ld. Predecessor and matter had been fixed for orders/clarifications and at that stage the file was received on transfer by Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 5/10 this court. The matter was kept for final arguments afresh however plaintiff did not address final arguments afresh despite opportunity and the matter was reserved for orders. Since clarifications were required therefore court notice was issued to the plaintiff/counsel for the plaintiff and thereafter clarifications were addressed by counsel for the plaintiff on 25.05.2015.
11. I have perused the record and also considered the clarifications advanced by counsel for the plaintiff. It is well settled law that primary evidence is the best evidence and a plaintiff seeking relief from the court is required to produce the best evidence available to it. In absence of the best evidence, a party can produce secondary evidence subject to any of the conditions as provided U/s. 65 of the Indian Evidence Act, 1872 being fulfilled. The plaintiff states that the original loan documents pertaining to the defendant have been destroyed in a fire in the premises of its vendor M/s. Nav Bharat Express Pvt. Ltd. with whom the originals were stored and in this regard has the exhibited and relied on Ex.PW1/2 FIR and Ex.PW1/3 translation of the FIR. The plaintiff has not called the translator to prove the translation of the FIR. Be that as it may even if the translated copy of the FIR i.e. Ex.PW1/3 is perused it will show that there is no specific mention therein regarding the particular documents of the plaintiff bank which had been destroyed in the fire. Further the plaintiff's Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 6/10 own case is that there is a procedure of taking approvals from the senior officials for retrieving the documents from the vendor and monitoring is done to have proper control over the inward and outward movement of the files but the plaintiff has not sought to place on record any notings/approvals of the senior officials of the plaintiff which could show that the original documents purportedly pertaining to loan taken by the defendant had been sent for storing with the vendor M/s. Nav Bharat Express Pvt. Ltd. The plaintiff has also not sought to examine the vendor who could corroborate the plaintiff's case regarding the file pertaining to the defendant also being destroyed in the mishap. Thus it is not even established that the purported original loan documents pertaining to the defendant were actually sent to the vendor for custody, so it is not established that the original documents were destroyed in the fire which broke out in the office of M/s. Nav Bharat Express Pvt. Ltd. dated 02.09.2011.
12. Furthermore, even if the plaintiff's plea of destruction of purported loan documents pertaining to the defendant being destroyed in the fire is taken at face value, it is to be remembered that secondary evidence U/s. 63 of the Indian Evidence Act means certified copies or photocopies of the original document or oral accounts of the contents of the document given by a person who has himself seen the document. The Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 7/10 plaintiff in the present case has merely filed the copy of the FIR, the purported account statement of the defendant and a legal notice issued to the defendant but has not sought to place on record even the photocopies of the purported loan documents of which the originals are stated by the plaintiff to have been destroyed in the fire from which the terms and conditions of the loan between the plaintiff and the defendant could be ascertained which would have been the appropriate secondary evidence in the facts and circumstances of the case. If the case of the plaintiff were that the plaintiff was not in possession even of the photocopies of the relevant documents pertaining to the defendant (though no such case is pleaded in the plaint) then at least the concerned bank official in whose presence the loan documents were purportedly executed and/or by whom the loan was sanctioned and/or disbursed could have been examined by the plaintiff by way of secondary evidence but the plaintiff did not bother to do so. PW1 is merely the authorized representative of the plaintiff bank vide Ex.PW1/1 however even in his affidavit Ex.PW1/A, PW1 does not anywhere state that the alleged loan documents were executed in his presence or that the loan was sanctioned/ disbursed by him or in his presence therefore the oral evidence of PW1 does not constitute secondary evidence.
13. Section 34 of the Indian Evidence Act provides clearly that while Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 8/10 entries in books of accounts are relevant however they alone are not sufficient evidence to charge any person with liability. Thus the statement of accounts Ex.PW1/6 on which counsel for plaintiff relied at the stage of clarifications to contend that the same showed receipt of payments in cash from the defendant, are not sufficient to prove the plaintiff's case in view of Section 34 of the Indian Evidence Act.
14. To sum up, firstly the plaintiff has not been able to prove through cogent evidence that the original documents pertaining to the loan purportedly granted to the defendant were destroyed in the fire which broke out in the office of M/s. Navbharat Express Ltd. on 02.09.2011 and secondly the plaintiff has not even adduced appropriate secondary evidence in lieu of the original documents of purported loan granted to the defendant being allegedly destroyed in the fire.
15. It is true that the defendant is Exparte in the present case however the wellsettled law is that the plaintiff's case must stand on its own legs. The plaintiff has not been able to establish even through secondary evidence the factum of grant of loan to the defendant and has thus been completely unable to establish its entitlement to the relief claimed.
Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 9/10
16. For the foregoing reasons the suit of the plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open Court (ANJANI MAHAJAN)
On 03.06.2015 CJ10 (Central)/Delhi
03.06.2015/Delhi
Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 10/10
03.06.2015 Suit No. 305/14
Present: None.
Vide separate judgment of even date the suit of the plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly.
File to be consigned to Record Room.
ANJANI MAHAJAN
Civil Judge 10 (Central)/THC
Delhi/ 03.06.2015
Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 11/10
Suit no. 305/14 HDFC Bank Vs. Neeyaz Ahmad 12/10