Delhi District Court
Union Bank Of India vs Naveen Kumar Yadav on 1 December, 2023
BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KKD, DELHI
CS Comm. No.219/2021
Union Bank of India
(Earlier Corporation Bank)
Through its AR
Sh. Pranjal P K Pandey
Having Head Office At:-
Union Bank Bhawan, Vidhan Bhawan
Marg, Nariman Point, Mumbai-900021
Having Branch Office at:
DJB Office Complex Greater
Kailash-1, New Delhi-48
..........Plaintiff
Vs.
1. Naveen Kumar Yadav
S/o Sh. Raj Pal Yadav
Q-1276, Sector-7
Pushp Vihar, New Delhi-17
Also At:
Senior Software Engg, Platform
HCL Limited, Sector-125, Maplle Tower
Noida, UP
2. Shyam Kala Yadav
W/o Sh. Naveen Kumar Yadav
Q-1276, Sector-7
Pushp Vihar, New Delhi-17
3. Amrapali Leisure Valley Developers Pvt. Ltd.(Builder)
Through its Directors
307, 3rd Floor, Nipun Towers
Plot No. 15, Community Centre
Karkardooma, Delhi-110092
Also At:
C-56/40, Sector 62, Noida UP
Also At:
8, West End, Green Farms
Rajokri Village, Delhi-110038
Also At:
83, AGCR Enclave, Karkardooma
CS Comm. No.219/2021 Page 1 of 13
Union Bank of India Vs. Naveen Kumar Yadav
Delhi-110092
Also At:
Plot No.GH-01, Tech Zone-IV,
G.B. Nagar, UP
........Defendants
Date of Institution : 04.07.2018
Date of Final Arguments : 01.12.2023
Date of Judgment : 01.12.2023
Decision : Decreed
Judgment
1. This suit was originally filed by plaintiff Corporation Bank, a Nationalised
Bank under Order 37 CPC for recovery of Rs.6,60,474/- alongwith interest
@12.25%, as balance of the loan due under a Tripartite Agreement. However,
subsequently Union Bank of India stepped into the shoes of the above
Corporation Bank as the same was merged with the Union Bank of India.
Case of the Plaintiff
2. Case of the plaintiff as per plaint and the documents filed is that defendant no 1
and 2 approached their Greater Kailash-1 Branch for availing a home loan of
Rs.23.40 lakhs for purchase of an underconstruction apartment bearing Unit
No.B3-1904, 19th Floor, Tower-B3 in "Dream Valley-II" Super Area-920 Sq.
Ft. situated at Plot No.GH-09, Tech Zone-IV, Greater Noida, District Gautam
Budh Nagar, UP. The project was being constructed by defendant no. 3 M/s
Amarpali Dream Valley Private Ltd. Upon being processed and due
documentation, the loan was sanctioned for Rs.23.40 lakhs on 16.05.2014 at
floating rate of interest of 10.25% per annum with monthly rest with a
provision of 2% penal penalty. The documents executed included demand
promissory note, term loan agreement, undertaking, loan disbursement letter
and a Tripartite Agreement between the plaintiff bank, defendant no. 3 Builder
and the Borrowers.
CS Comm. No.219/2021 Page 2 of 13
Union Bank of India Vs. Naveen Kumar Yadav
3. The housing loan was secured by way of mortgage of the above detailed under-
construction property. Only a sum of Rs.7,23,680/- was disbursed on
16.01.2015 as per agreement directly to the Builder, since the payment was
supposed to be made under a Construction Linked Payment (CLP) Plan. It is
further pleaded that as per Tripartite Agreement entered between the parties the
Builder had undertaken that in case the apartment is not constructed within 36
months (+/- 6 months) Builder will pay penalty and in case sale transaction is
not completed the Builder undertook to return the entire money received by
him from the bank and from the borrower as well.
4. It is pleaded that defendants did not adhere to financial discipline. Plaintiff
claimed to have issued legal notice dated 14.02.2018, foreclosing the loan to
the three defendants but the notice remains not replied. It is claimed that there
was a debit balance of Rs.6,60,474/- as on 16.03.2018. The demand letter was
raised by Builder on 13.01.2015 for Rs.7,43,460/-. It is mentioned that the
borrower has already deposited Rs.4,44,900/- with the Builder. As such the suit
in hand was filed with following prayer against the Borrower as well as the
Builder.
Prayer:
i. Pass a decree for a sum of Rs.6,60,474/- in favour of plaintiff and against the
defendants together with pendente lite and future interest @12.25% per annum from
the date i.e.17.03.2018 till realization.
ii. Costs of the suit may be awarded in favour of plaintiff and against the defendant.
iii. Pass any such further order/order (s) as this Hon'ble Court deems fit.
5. The plaintiff bank had not complied with Section 12A of Commercial Courts
Act, 2015 and had not carried out Pre-Institution Mediation. However Ld.
Predecessor vide order dated 01.12.2022 allowed the plaintiff bank to carry out
Pre-Institution Mediation during the pendency of the suit while keeping the
suit in abeyance in terms of case titled Bank of Baroda Vs. Suhail Garments
CM Main 131/2021 dated 23.03.2021. Plaintiff was issued Non-Starter Report
CS Comm. No.219/2021 Page 3 of 13
Union Bank of India Vs. Naveen Kumar Yadav
by DLSA Shahdara on 11.01.2023, whereafter the suit was revived by Ld.
Predecessor. However, the methodology adopted by Ld. Predecessor of relying
on a order of the year 2021 of Hon'ble High Court which was passed prior to
salutory judgment of Hon'ble Supreme Court in Patil Automation Limited
Vs. Rakheja Engineering Private Ltd. (2022) Latest Caselaw 645 SC, dated
17.08.2022 does not appear to be legally tenable as it is legally improbable to
allow a party to carry Pre-Institution Mediation during the pendency of a suit
more so when Hon'ble Supreme Court has already ruled that all such cases
where Section 12A Commercial Courts Act, 2015 has not been complied
shall be rejected by the Commercial Courts, suo motu.
6. However, in so far there was no mechanism for carrying out Pre-Institution
Mediation was developed in Delhi between 03.05.2018 nto 27.11.2018 in terms
of case titled Extreme Coating Private Ltd. Vs. Jotun India Private Ltd.
2022 Latest Caselaw 2392 Delhi of Hon'ble High Court of Delhi, suits filed
within this window were exempted from complying Section 12A of
Commercial Courts Act, 2015. Since the suit in hand was filed on
04.07.2018, the same also comes in the exempted category.
7. Summons of the suit were initially ordered to be issued under Order 37 CPC
but when the substituted service was carried out by way of publication in
National Daily "The Statesman" edition dated 27.11.2021, the summons of
ordinary suit was published. As such the suit has been treated as an ordinary
suit.
8. Since no WS was filed within thirty days defendant was proceeded ex-parte on
13.04.2022.
9. Out of the pleadings following Notional Issues were identified by this Court on
05.09.2023:
CS Comm. No.219/2021 Page 4 of 13
Union Bank of India Vs. Naveen Kumar Yadav
Notional Issues:
i. Whether plaintiff bank is entitled to recovery of Rs.6,60,474/- alongwith pendente
lite and future interest @12.25% p.a.? OPP
ii. Relief
Evidence
10.Evidence in this case was ordered to be recorded before Ld. LC as per
protocol created by this Court under Order 18 Rule 4 CPC read with Order
15A Rule 6(l) CPC as applicable to Commercial suits. Evidence was recorded
before Ld. LC Sh. Kuldeep Kumar, Advocate appointed by this Court for the
sake of timely disposal of this case.
11.In the evidence recorded before Ld. LC, plaintiff examined PW1 Naveen
Tilwani, Branch Manager. Vide affidavit Ex.PW-1 he deposed on the lines of
plaint and exhibited following documents:
i. True Copy of Gazette Notification dated 04.03.2020 is Ex.PW1/1;
ii. The copy of Authorization Letter dated 14.09.2023 is Ex.PW1/2;
iii. Original CSI dated 16.05.2014 is Ex.PW1/3;
iv. Original Demand Promissory Note dated 16.01.2015 is Ex.PW1/4;
v. Original Take Delivery Letters to Demand Promissory Note dated 16.01.2015 are
Ex.PW1/5;
vi. Original Agreement for Term Loan dated 16.01.2015 is Ex.PW1/6;
vii. Original Letter of undertaking and Declaration from the borrower dated 16.01.2015 is
Ex.PW1/7;
viii.The copy of Demand Letter dated 13.01.2015 raised by defendant no. 3 are Ex.PW1/8;
ix. The copy of handwritten letter of demand given by defendant no. 1 and 2 is Ex.PW1/9;
x. The Office Copy of Demand Draft of Rs.7,41,460/- dated 16.01.2015 is Ex.PW1/10;
xi. Original request for Disbursement Letter of Rs.7,23,680/- dated 16.01.2015 is
Ex.PW1/11;
xii. Original Memorandum of deposit of title deeds of under construction apartment
(detailed supra) is Ex.PW1/12;
xiii.Original Allotment Letter dated 25.03,2014 is Ex.PW1/13;
xiv. Original Noting of Lien dated 12.01.2015 is Ex.PW1/14;
xv. Original Permission to Mortgage dated 12.01.2015 is Ex.PW1/15;
xvi. Original Tripartite Agreement dated 16.01.2015 is Ex.PW1/16;
xvii. Original Office Copy Demand Notice dated 14.02.2018 is Ex.PW1/17;
xviii. Original Postal Receipt dated 16.02.2018 is Ex.PW1/18;
xix. Original True Copy of Statement of Account is Ex.PW1/19;
xx. Original Certificate given by the Officer/Manager In Charge of the Computer System is
Ex.PW1/20;
xxi. Affidavit under Order 11 Rule 6 (3) of CPC, 1908 for filing electronic documents is
Ex.PW1/21;
xxii. Copy of Power of Attorney of Previous AR is Mark X.
12.None appeared on behalf of defendant for cross-examining the witness.
CS Comm. No.219/2021 Page 5 of 13
Union Bank of India Vs. Naveen Kumar Yadav
13.The pleadings in the plaint and annexed documents has remained unrebutted,
unchallenged and uncontroverted.
14.I have heard arguments of Sh. Sandeep Soni, Ld. Counsel for plaintiff. None
has appeared on behalf of defendants to argue the case. Under orders of
Hon'ble Supreme Court, Mr. R. Venkataramani who is appointed a 'Receiver'
for Builder M/s Amrapali Developers, is exempted from appearing in the
Court. I have perused the case file carefully.
Issue No. 1
15. While opening his submissions it is submitted by Ld. Counsel for plaintiff that
the plaintiff bank had sanctioned a loan of Rs.24.30 lakhs and out of the same
only a sum of Rs.7,23,680/- was released by the plaintiff bank directly to the
Builder under the Tripartite Agreement Ex.PW1/16 dated 16.01.2015. It is
argued that neither the defendant no. 3 Builder M/s Amarpali carried out the
construction as promised till date nor the loan disbursed by the bank to the
Builder was paid back either by the Borrrower defendant no. 1 and 2 or by the
Builder and as such bank was constrained to file the suit seeking a decree of
the money disbursed to the Builder, jointly and severally against all the three
defendants.
16. As regards builder defendant no. 3 M/s Amrapali is concerned it is stated by
Ld. Counsel for Bank that there is no Moratorium under Section 14 of
Insolvency and Bankruptcy Code, 2016 or no proceedings are continued
before NCLT or NCLAT. It is rather stated that all the matters pertaining to M/s
Amrapali Builders are being dealt with by Hon'ble Supreme Court in WP
(Civil) 940/2017 titled Bikram Chaterjee Vs. Union of India. He has placed
on record a copy of order passed by Hon'ble Supreme Court on 18.04.2022.
17. In this order Hon'ble Supreme Court while referring to the Tripartite
Agreement between the Builder, Banks and the Flat Buyers issued directions
that in case the flat buyer is willing to avail the subvention facilities, EMIs
CS Comm. No.219/2021 Page 6 of 13
Union Bank of India Vs. Naveen Kumar Yadav
shall be payable only after he is provided actual physical possession and title of
the flat.
18. It is submitted by Ld. Counsel for the Bank that as far as the flat buyers who
are not availing the subvention facilities, the contractual liabilities between the
parties will govern their respective rights under the Law and as such there is no
legal impleadment in deciding this case. As far as plaintiff bank's right to seek
recovery of amount paid by it to the builder is crystallised in the Clause 3 of
the Tripartite Agreement Ex.PW1/16 dated 16.01.2015. For ready reference
the same is reproduced hereunder:
"3) That in the event of the borrower and/or Builder/Developer/Land Owner failing to
complete the sale transaction and registration thereof as per the agreement between
Builder/Developer/Land Owner and borrower, the Builder/Developer/Land Owner
undertakes and agrees to return all money received by him directly from the borrower and
also the amount disbursed by the Bank on behalf of the borrower for purchase of the flat in
question, directly to the Bank, within maximum period of 90 days, failing which
commercial rate of interest will be charged @18% p.a. from the date of default in
completion of sale transaction and registration thereof as per the agreement between
Builder/Developer/Land Owner and the borrower, till the date of return of all money to the
Bank."
19.In this regard in the judgment passed by Hon'ble Supreme Court on the subject
whose operative portion is reproduced in the 'Bikram Chatterjee Case' reads
as under,
"146. It is apparent from the report of the forensic audit submitted by forensic Auditor that
there is a serious kind of fraud is played upon the buyers in active connivance with the
officials of Noida and Greater Noida Authorities and that of Bank. The money of the home
buyers has been diverted.....The money obtained from the bank was diverted to
unapproved uses such as for the creation of personal assets of Directors....There was total
non-monitoring by the bankers....The banks have also failed to ensure that the money
was used in the projects....The authorities and bankers have violated the doctorine of
public trust and their officials, unfortunately, acted in collusion with builders. The dues of
the Banks are also to be recovered from the other attached properties as observed by us."
(Emphasis Supplied)
20.The same order also appointed Sh. R Venkataramani, Sr. Advocate (current Ld.
Attorney General for India) as 'Receiver' with a direction that he will ensure
due execution of Tripartite Agreement. Likewise, vide a separate order Ld.
Supreme Court had exempted receiver or his representative from appearing in
CS Comm. No.219/2021 Page 7 of 13
Union Bank of India Vs. Naveen Kumar Yadav
individual litigations filed by Banks and Financial Institutions against M/s
Amarpali Builders and flat buyers.
21.Perusal of the above observations of Hon'ble Supreme Court in the light of the
Clause 3 of Tripartite Agreement Ex.PW1/16 it is evident that the role
played by the bankers such as the plaintiff before this Court was not
aboveboard and evidently the plaintiff bank has failed to ensure that the money
transmitted by them to the Builder was actually used for construction of the flat
in question and not siphoned off by the Builder. It is only because of such
unprofessional handling of housing loans by the banks/plaintiff which led to
commission of the 'Amarpali Housing Scam' wherein owing to the
magnanimity and scale of the financial loss caused to gullible flat buyers like
respondent no. 1 and 2, Hon'ble Supreme Court was compelled to intervene
solely with an aim to safeguard the rights of the flat buyers from the unholy nexus between Builders and the banks.
22.The language used in Clause 3 of Tripartite Agreement which not only apparently absolves Defendant no. 1 and Defendant no. 2 from making any payment to the Bank but gives the Bank an absolute upperhand whereby Banks had reserved their rights to not only take back the money paid by Banks to the Builder for construction of flat but also the money paid by flat buyer to the Bank and that too with interest @18% per annum.
23.In such a scenario when the Builders and the Banks under an apparent conspiracy aimed at cheating the gullible buyers had a free run in facilitating in siphoning of not only the flat buyers' money but also the claimed home loan payments made to the Builder in the name of flat buyers, it is the Defendant no. 1 and Defendant no. 2 who are left high and dry and are the victims. Having once entered into a Tripartite Agreement Ex.PW1/16 the endeavour of Ld. Counsel for the plaintiff bank on citing and relying on a purported undertaking of the even date where the buyer is shown to have acknowledged CS Comm. No.219/2021 Page 8 of 13 Union Bank of India Vs. Naveen Kumar Yadav that even though the housing project in question is approved by the Plaintiff Bank but still the bank has very conveniently tried to absolve itself from any lapse on the part of Builder owing to non-construction of the property for want of permissions and approvals from competent authority.
24.Once a Nationalised Bank projects to the citizens and masses that a particular Housing is approved by them like the one in hand convey, a clearcut message goes out that not only Builder is reliable but the title of the land on which the property is sought to be built and the quality of constructions and time schedule would be adhered to by the Builder under Bank's watch and superintendence. An impression is also conveyed that being a Nationlised Bank, it would ensure that the loan being offered for this project would be utilised for construction of the specific project and would not be allowed to be diverted or siphoned off in any manner.
25.The severe strictures and castigation of unholy nexus between Banks and the Builder by Hon'ble Supreme Court shows that all such assurances were breached and the flat buyers were left high and dry whereunder not only they lost the hard-earned money they paid to the Builders but also constrained to bear the litigations being initiated by such banks which in cahoots with the Builders who have facilitated the siphoning of purported home loans money.
26.In case titled Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, 1986 Latest Caselaw 64 SC, the Hon'ble Supreme Court while considering unconscionable contracts/terms was pleased to refer to American law as contained in Reinstatement of the Law -- Second as adopted and promulgated by the American Law Institute, Volume II which deals with the law of contracts and in which in Section 208 at p. 107, it is provided as under:-
"S. 208. Unconscionable Contract or Term If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result."CS Comm. No.219/2021 Page 9 of 13
Union Bank of India Vs. Naveen Kumar Yadav
27. Thus, where a contract or a term of the same is unconscionable, the Court may refuse to enforce the contract or may enforce the remainder of the contract without the unconscionable term. The Court may also limit the application of such term to avoid any unconscionable result. The Hon'ble Supreme Court in the case of Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (supra) after reviewing the law on such aspects was pleased to hold in para 89 as under:-
"89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."
(Emphasis Supplied) CS Comm. No.219/2021 Page 10 of 13 Union Bank of India Vs. Naveen Kumar Yadav
28. The Hon'ble Supreme Court in the case of Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (supra), inter - alia, held that the Courts will not enforce and will strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It was further held that this principle will apply where:-
• The inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties.
• The inequality is the result of circumstances, whether of the creation of the parties or not.
• It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them.
• Where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.
29. The above dictum was followed by the Hon'ble Supreme Court in several cases including the case of Kalpraj Dharamshi v. Kotak Investment Advisors Ltd., 2021 Latest Caselaw 139 SC in which it was held as under:
"109. This Court has held, that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It has been held, that this principle will apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be."
30. In the case of K.C. Cinema v. State of J&K, 2023 5 SCC 786 the Hon'ble Supreme Court was pleased to explain that the test laid down in the case of Central Inland Water Transport Corpn. v. Brojo Nath Ganguly (supra) will apply not only where the parties have unequal bargaining power but also where a contractual term or a contract is unfair, unreasonable or unconscionable. The Hon'ble Supreme Court has held that a contractual term or a contract is unfair, unreasonable or unconscionable where it is one sided or devoid of any commercial logic. The relevant portion of the said judgment reads as under:-
CS Comm. No.219/2021 Page 11 of 13Union Bank of India Vs. Naveen Kumar Yadav "30. The test in Central Inland Water Transport Corpn. is not only to assess whether the parties have unequal bargaining power relative to one another but also to ascertain whether a contractual term or a contract is unfair, unreasonable or unconscionable. A contract (or a term in a contract) can be said to be unfair or unreasonable if it is one-
sided or devoid of any commercial logic. In the present case, although theatre owners may unilaterally determine the conditions of entry into cinema hall, the condition imposed in this instance is not unfair, unreasonable or unconscionable"
31.In such a scenario acceeding to prayer of these banks, like the one in hand, in passing decree against the flat buyers would amount to perpetuating the wrongdoings and aiding the unholy Builder-Bank nexus and extracting undue money from the already persecuted and financially drained flat buyers.
32.Perusal of statement of account Ex.PW1/19 shows that there was a debit balance of Rs.6,60,474/- on account to money diverted by Bank to the Builder.
33.In view of the above discussion and settled law and observations made by the Hon'ble Supreme Court with regard to M/s Amarpali Builders and Bank nexus, the suit of the plaintiff is entitled to be decreed only against defendant no. 3 M/s Amrapali Builders and no financial liability can be fastened on defendant no. 1 and 2. This issue is answered accordingly.
Interest:
34.In the suit in hand plaintiff has claimed contract rate along with penal interest @12.25% 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.219/2021 Page 12 of 13Union Bank of India Vs. Naveen Kumar Yadav 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)
35.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.
36.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
37.In view of decision of above issue, suit of the plaintiff is decreed with cost only against M/s Amrapali Leisure Valley Developers Pvt. Ltd.defendant no. 3 for a sum of Rs.6,60,474/- with 9% interest w.e.f. 01.04.2018 onwards, pendente lite and till realization. Suit as against Defendant no. 1 and 2, stands dismissed.
38.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/01.12.2023 CS Comm. No.219/2021 Page 13 of 13 Union Bank of India Vs. Naveen Kumar Yadav