Delhi District Court
Delhi Sc/St/Obc/Minorities & & ... vs Sh. Bansi Lal on 30 August, 2012
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE02, DISTRICT
(NORTH), TIS HAZARI COURTS, DELHI
SUIT NO. 808/06
Unique ID No. 02401C0013262005
MEMO OF PARTIES
Delhi SC/ST/OBC/Minorities & & Handicapped,
Financial & Development Corporation Ltd.,
(A Government of Delhi Corporation),
2, Battery Lane, Rajpur Road,
Delhi 54, through
Duly Constituted Attorney,
...........Plaintiff
VERSUS
1. Sh. Bansi Lal
S/o Sh. Jeet Ram,
R/o RZF 768/1, Palam Colony,
Raj Nagar, PartII, New Delhi 45
2. Sh. Nam Pal Singh
S/o Sh. Horam Singh,
R/o RZF 760A, Gali No. 3,
Raj Nagar Extn., Palam, New Delhi 45
3. Sh. Hari Ram
S/o Sh. Phool Singh,
R/o RZF/760A/6, Raj Nagar II Extn.
Palam Colony, New Delhi 45.
..........Defendants
Date of institution of the Suit: 27.01.2005
Date on which judgment was reserved: 16.08.2012
Date of announcement of Judgment: 30.08.2012
Suit No. 808/06 1
SUIT FOR THE RECOVERY OF RS. 1,65,501/ (ONE LAKH SIXTY FIVE
THOUSAND FIVE HUNDRED ONE ONLY) ALONGWITH THE INTEREST @ 18%
PER ANNUM
JUDGMENT
1. This is a suit for recovery of Rs. 1,65,501/ alongwith interest at the rate of 18% per annum.
2. The case of the plaintiff is that plaintiff is a government undertaking, controlled and financed by the Government of National Capital of Delhi and Sh. Sanjiv Sharma, the duly constituted attorney/ deputy law manager has filed the present suit on behalf of the plaintiff and is duly authorized and competent to file, sign and verify the suit.
3. It is averred by the plaintiff that it is incorporated under the Indian companies Act 1956, with the main object to provide financial assistance to members of scheduled castes, tribes etc. in the Union territory of Delhi for their economic upliftment and has formulated various schemes and extended loans at soft rate of interest to the members of scheduled castes and tribes etc. Defendant No. 1 had applied for financial assistance for purchase of a taxi under one such scheme of the plaintiff vide Loan file no. 471/1731/DLY TAXI/9495. The loan amount was Rs. 2,47,647/ and the loan was granted vide a Hypothecation Deed for the purpose of purchasing a new Ambassador car to be plied as a DLY Taxi. As per terms and conditions of the scheme, the loan was to be recovered in 60 monthly instalments Suit No. 808/06 2 over a period of five years. Further, since the loan amount is granted on low rate of interest, policy of the plaintiff does not allow disbursement of the entire loan amount in cash directly to the beneficiary to avoid misuse of the same. It is stated that defendant no. 1 signed and executed the receipt after receiving the vehicle. The defendants no 2 and 3 stood as guarantors for defendant no. 1 and executed the guarantee deed.
4. It is submitted by the plaintiff that despite various requests and reminders, the defendant no.1 failed to pay the instalments regularly and failed to adhere to the schedule of payment. Defendants were served with legal notices on various dates i.e. 08/02/96, 22/04/96, 18/07/96, 13/08/96, 14/03/97, 20/02/97, 04/07/97, 23/04/97, 09/04/97, 23/02/98, 22/04/98, 09/06/98, 10/03/99, 20/05/99, 14/02/2000, 26/02/2002 and 01/03/2002 requesting them to make payment of the outstanding amount. Defendant no. 1 failed to make the payment. As per the memorandum of association and the articles of association of the plaintiff, the plaintiff could also recover default amount from the beneficiaries as arrears of land revenue, thus notices were issued to the Deputy Commissioner for recovery under Land Revenue Act, as arrears of land revenue which were also sent to all the defendants and employers of defendants 2 and 3 on 22/03/2000, 03/07/2002 and 26/09/2002.
5. Since the balance amount was not paid despite reminders and notices, plaintiff filed the present suit.
6. Summons to the suit were issued to the defendants who put in appearance through their counsel and a joint written statement was filed by all the defendants. Suit No. 808/06 3
7. In the written statement, the defendants have taken certain preliminary objections viz.
a) Suit of the plaintiff is time barred since the last transaction between the parties was on 29.12.1999 and the present suit has been filed beyond the recovery period.
b) There is no cause of action against the defendants.
c) Plaintiff has not come to the court with clean hands as the plaint does
not disclose the registration number of the alleged taxi against which plaintiff claims to recover the alleged loan amount.
d) Copy of hypothecation deed was not supplied to defendants. Plaintiff has not shown the complete record of amount received from the defendants.
e) Exorbitant rate of interest has been claimed.
f) Plaintiff has filed the present suit for recovery but even before judgment
in this suit, directed the SDM concerned to execute the recovery as land revenue from the defendant and guarantors.
g) No loan was extended by the plaintiff to the defendant nor was the defendant granted the liberty to purchase taxi of his choice. Had defendants been extended loan, they would have preferred Maruti Van instead of renovated Ambassador. The alleged taxi given to the defendant no. 1 was reconditioned and not a new one. It was not economical to ply. Plaintiff has played a fraud upon the defendant no. 1 and the vehicle was not only defective but also beyond economical repairs.
Suit No. 808/06 4
h) Plaintiff did not give a loan but distributed used vehicles to the defendant no. 1. Plaintiff purchased the vehicle from Rajiv Motors in June 1995 and after using it for some time, handed over the key and possession of the vehicle to defendant no. 1. The vehicle had run around 1500 kilometres before delivery.
i) The Hon'ble High Court of Delhi in W.P. ( C) 1663/2002 decided on 09.08.2004 held that since the plaintiff corporation had not intimated anything to the guarantors for seven years as such the suit against the guarantors was misconceived and demand letters/notice of the respondents was quashed therein.
j) Proper notice has not been given to the defendants no. 2 and 3 about default if any on the part of the defendant no. 1.
8. On merits, defendants deny that any loan was given to defendant no. 1 and that an old and renovated vehicle in the garb of distribution of vehicles was handed over to defendant no. 1 and later he was directed to sign certain documents, no copy of the same was ever provided. The alleged loan file is denied. It is alleged that the vehicle was distributed by a minister in an open function organised for this purpose. It is denied that defendant no. 1 executed a receipt of loan amount and that defendant no. 2 and 3 stood as guarantor for defendant no. 1. Receipt of legal notice is also denied. It is submitted that though defendants are not liable to pay any amount yet it is the plaintiff's own averment that defendant has paid a sum of Rs. 1,99,116/ out of the alleged loan amount but receipts have not been issued to the Suit No. 808/06 5 defendant and the amount paid by the defendant in addition to the amount has not been shown in the statement. It is stated that at the time of distribution of the taxis the plaintiff's office had told the defendants that they would not have to pay any amount for the first six months and shall only have to pay nominal amount for use and occupation of the vehicle. Defendant no. 1 claims to have made payment of an amount of Rs.1,99,116/ in instalments as detailed in the written statement. It is stated that all these amounts were duly received by the plaintiff but plaintiff did not maintain a proper account of the same and after adjusting the amount, there is nothing payable to the plaintiff. It is thus prayed that the suit may be dismissed.
9. Plaintiff did not file replication. On 27.07.2005, the following issues were framed
1. Whether the present suit is barred by limitation? OPD
2. Whether the plaintiff is entitled to the recovery as prayed for? OPP
3. Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP
4. Relief
10. Initially, issue no. 1 was treated as a preliminary issue. Statement of Sh. S.P. Jaiswal, Authorised Representative of the plaintiff was recorded under order 10 CPC. Vide order dated 26.04.2010, the Ld. Predecessor of this court held that the issue of limitation being a mixed question of fact and law, it could be decided after evidence and the same was ordered to be tried along with the other issues after leading of evidence.
11. The case was then set for evidence. Plaintiff in order to establish its case Suit No. 808/06 6 examined Sh. S.P. Jaiswal, the Assistant Manager of the plaintiff as PW1 and thereafter since the authorised representative of the plaintiff changed during the course of the proceedings, Sh. Ashok Sakarwal the later constituted authorised representative was examined as PW2. PW2 was subjected to crossexamination by defendants. Defendants in order to establish their case examined defendant no. 1 Sh. Bansi Lal as DW1 who was subjected to crossexamination as well.
12. Final arguments were addressed by Ld. Counsel for the parties. I have heard Ms. Poonam Lal, ld proxy counsel for the plaintiff who submitted that she had instructions to argue the case; and Sh. S.C. Juneja, ld counsel for the defendants. The record has been perused by me carefully. My issuewise findings are as follows Issue no. 1 Whether the present suit is barred by limitation? OPD
13. The loan was sanctioned in the year 1995. The same was to be repaid in 5 years in sixty monthly instalments. The last payment made by the defendant no. 1 as per the plaintiff was on 29.12.1999. The present suit has been filed in January 2005. On 26.02.2009, the statement of the erstwhile authorised representative of the plaintiff was recorded under order 10 CPC wherein it was admitted that defendant no. 1 had not made any payment to the plaintiff after 29.12.1999 and also that there was no acknowledgment of liability made by the defendant after 29.12.1999. The plaintiff witness PW2 also deposed in his crossexamination that as per the records available at the plaintiff's office and as per the statement of accounts Ex. PW2/D, the last payment made by the defendant was on 29.12.1999 and no payment has been Suit No. 808/06 7 made thereafter.
14. Since the loan was repayable in five years' time, the starting point of limitation would be in the year 2000, and within three years thereafter the plaintiff was required to file the present suit. (Reference: Sh. Satish Kumar versus Smt. Reena Bhoumik RFA 684/2006 decided by the Hon'ble High Court of Delhi on 18.04.2012). However the present suit has been filed in the year 2005. The clear mandate of section 3 of the Limitation Act, 1963 provides that every suit which is instituted after the period of limitation, unless covered by the provisions contained in sections 4 to 24 of the Act, is required to be necessarily dismissed. In the facts of the case narrated above, the present suit is hopelessly timebarred. Thus, in view of the discussion aforesaid, the issue is decided in favour of the defendants and against the plaintiff.
Issue no. 2 Whether the plaintiff is entitled to the recovery as prayed for? OPP
15. In order to discharge the onus cast on it to prove this issue, the plaintiff got exhibited and proved through PW2 documents Ex. PW2/A to Ex. PW2/F. The following documents are relevant in advancing the case of the plaintiff Ex. PW2/A which is the original loan application dated 15/02/1995, Ex. PW2/B(colly) are the various original legal notices sent to the defendants the original statement of accounts Ex. PW2/D. Ld. Proxy Counsel for the plaintiff elicited from the defendant in his crossexamination as DW1 that it was correct that the defendant had filled the application form for allotment of vehicle in the draw and further that Ex. PW1/A (i.e. Suit No. 808/06 8 Ex. PW2/A) bore the defendant's signature at point 'A' thereon. Defendant no. 1 has failed to challenge the veracity of Ex. PW2/A and in fact admits his signatures on this document. Ex. PW2/A stands duly proved. The defendants claimed that the vehicle was distributed to them by an auction but the defendant no. 1 was not liable to pay any amount and only nominal use and occupation charges were to be paid. DW1 exhibited 31 receipts issued by the plaintiff to him. These receipts have not been rebutted. It is extremely pertinent to note that all the amounts mentioned as being paid to the plaintiff in the details as provided in the written statement except for the last two entries for which no receipt has been placed on record, find due mention in the statement of accounts filed by the plaintiff and in fact, if excluding the last two entries which are not proved, the amount as per the details given by the defendant is calculated, it comes to Rs. 1,54,448/ while the plaintiff shows that an amount of Rs. 1,70,699/ has been paid by the defendant no. 1. The calculation of the plaintiff thus cannot be doubted. The plaintiff's witness in his crossexamination admits that the vehicles were distributed by auction. However, that in no way means that the vehicle was granted free of cost to the defendant no. 1. In his crossexamination, the plaintiff witness testified that a cheque was issued to the defendant no. 1 in the name of M/s Hindustan Motors and not in the name of the defendants for the purchase of the vehicle. This is in complete consonance with the pleadings of the plaintiff. The defendant no. 1 (DW1) admits to receiving notices from the plaintiff in his testimony, which is contrary to his allegation in the written statement, thus raising doubts regarding his credibility. The case set up by the defendant is highly unbelievable that Suit No. 808/06 9 the payment was to be made for use and occupation in the face of the documentary evidence especially Ex. PW2/A the veracity of which the defendants have failed to challenge and DW1's admission that the defendant received notices from the plaintiff, to which it appears from the record that defendant failed to reply. The document Ex. PW2/D1 which the defendant sought to confront the plaintiff witness with is merely a dim photocopy which is neither signed nor executed by the plaintiff nor the defendant and cannot be said to be proved as per law. In any case, the same is not of much relevance, other than the fact that even this document describes the amount as loan sanctioned to poor, unemployed persons of scheduled caste for purpose of purchase of DLY taxis. This really advances the case of the plaintiff rather than the defendants. The plaintiff's witness has been able to prove by way of documentary and oral evidence that a loan of Rs.2,47,647/ was granted to the defendant no. 1 and defendant no. 1 committed defaults in repayment. However, as I have already held while deciding issue no. 1 that the suit of the plaintiff is hopelessly time barred, therefore the plaintiff is not entitled to the relief of recovery as prayed for. Issue no. 2 is thus decided against the plaintiff.
Issue no. 3 Whether the plaintiff is entitled to interest? If so, at what rate and for what period? OPP
16. In view of my findings on issue nos. 1 and 2, the plaintiff is not entitled to any interest. Issue no.3 is accordingly decided against the plaintiff. Issue no. 4 Relief
17. In view of the aforesaid discussion and my issue wise findings, as the suit of Suit No. 808/06 10 the plaintiff is hopelessly timebarred therefore the suit of the plaintiff stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in the open court MS. ANJANI MAHAJAN
On 30.08.2012. Civil Judge - 02 (North)
30.08.2012
Suit No. 808/06 11
30.08.2012 Suit 808/06
Present: None.
Vide separate judgment of even date the suit of the plaintiff is hopelessly timebarred therefore the suit of the plaintiff stands dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
ANJANI MAHAJAN Civil Judge 02 (North)/THC Delhi/ 30.08.2012 Suit No. 808/06 12