Delhi District Court
Icici Bank Limited vs Varinder Singh on 30 October, 2023
ICICI Bank Ltd. v. Varinder Singh
IN THE COURT OF MS. PAYAL SINGAL : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.283, TIS HAZARI COURTS, DELHI
SUIT NO : 2146/2019
CNR NO.DLCT030051562019
In the matter of :
ICICI Bank Ltd.
Registered office at:
Landmark, Race Course Circle,
Vadodara 390 007.
Branch address:
2nd Floor, Videocon Tower,
Block E1,
Jhandewalan Extention,
New Delhi. ...PLAINTIFF
VERSUS
Varinder Singh
S/o Sh. Waryam Singh
R/o H. no. 128B, Sharmik Kunj,
Sec66, Noida, U. P. 201301.
Also at:
C/o IGATE Global Solutions Ltd.
Designation Lead Engineer
Department Infra Delivery,
139140, Capgemini Building, A Block,
NSE2, Sec82, Noida, U. P. 201306. ...DEFENDANT
Date of institution : 22.07.2019
Date of judgment : 30.10.2023
SUIT FOR RECOVERY OF RS.2,20,079.40/
CS No.2146/2019 Pg 1 of 7
ICICI Bank Ltd. v. Varinder Singh
EX-PARTE JUDGMENT
1.By this judgment, I shall dispose of the suit of the plaintiff for recovery of Rs.2,20,079.40/.
2. It is stated in the plaint that the plaintiff is Banking Company and is inter alia engaged in advancing loans under various schemes and categories to its customers. The present suit has been filed through Sh. Mohit Grover, who is the duly Authorized Representative of the plaintiff. The case of the plaintiff bank is that the defendant had approached the plaintiff bank for grant of loan for purchasing a car make "ALTO K10/VXI AMT"
under four wheeler Loan Scheme. After consideration, plaintiff bank sanctioned and disbursed an amount of Rs.3,21,000/ on 30.09.2016 against loan account No.LANOD00034879429 which the defendant duly availed by purchasing "ALTO K10/VXI AMT" bearing Registration No.UP16BH9668. The said loan was secured by hypothecation of the vehicle in favour of plaintiff bank. Defendant was to repay the said loan in 60 equated monthly installment of Rs.6781/ each, however, the defendant did not clear the entire liquidated dues in respect of the loan account and failed to maintain financial discipline. The defendant executed various documents in favour of plaintiff bank i.e. loan agreement/credit facility application form, unattested deed of CS No.2146/2019 Pg 2 of 7 ICICI Bank Ltd. v. Varinder Singh hypothecation and irrevocable power of attorney. As per the case of the plaintiff till the time of the filing of the present suit, the defendant defaulted in repayment of 06 equated monthly installments besides future installments, which were due as on date of filing of the suit. It is further stated that the plaintiff bank tried to recover the amount due but the defendant evaded paying the same. The plaintiff bank issued a legal recall notice dated 16.03.2019 to the defendant calling upon the defendant to pay the entire outstanding dues. It is the grievance of the plaintiff bank that in spite of the receipt of the notice, the defendant failed to pay and clear the outstanding dues despite the several reminders and requests from the plaintiff bank and as per statement of accounts dated 07.06.2019 defendant is liable to pay Rs.2,20,079.40/. In these facts and circumstances the plaintiff bank has filed the present suit for the recovery of Rs.2,20,079.40/ (Rupees Two Lakh Twenty Thousand Seventy Nine and Forty paisa Only). The plaintiff bank is also seeking interest @ 24 % per annum respectively.
3. Summons of the suit were firstly directed to be issued to the defendant on 22.07.2019 but despite repeated efforts, defendants could not be effectively served either physically or by electronic mode. Ultimately, on 22.03.2023, application of the plaintiff to effect substituted service upon CS No.2146/2019 Pg 3 of 7 ICICI Bank Ltd. v. Varinder Singh the defendant was allowed and accordingly, defendant was served by way of publication on 28.04.2023 in "Rashtriya Sahara", however, defendant despite the said service, neither appeared nor filed any written statement to contest the present suit. Accordingly, the right of defendant to file written statement was closed on 31.07.2023 and defendant was proceeded against exparte vide order dated 13.09.2023.
4. As per Order 8 Rule 5 (1) of the Code of Civil Procedure, 1908 in absence of any denial of allegations in the plaint by the defendant, the Court shall presume the facts to be admitted. Section 58 of Indian Evidence Act states that a fact admitted even by way of any rule of pleading need not be proved. However, both the provisions empower the Court to require the admitted facts to be proved, whether admitted expressly or impliedly. Order 8 Rule 5 (2) of Code of Civil Procedure, 1908 is similar to Section 58 of Indian Evidence Act. Moreover, Order 8 Rule 10 of Code of Civil Procedure, 1908, which deals with power of Court in total absence of written statement also leaves it to the discretion of the Court whether to pronounce judgment or make such other order as the Court deems fit. In Balraj Taneja & Anr v. Sunil Madan & Anr (1999) 8 SCC 396, in the context of Section 58 and Order 8 Rule 5, it was held by the Hon'ble Supreme Court of India that: CS No.2146/2019 Pg 4 of 7 ICICI Bank Ltd. v. Varinder Singh " A court, at no stage, can act blindly or mechanically." In exercise of the above powers and as a matter of caution, this Court had required the plaintiff to prove its case through evidence.
5. In support of its case, plaintiff has examined PW1 Sh. Mohit Grover, Authorized Representative of ICICI Bank, who tendered his affidavit in evidence Ex.PW1/A. PW1 relied on the following documents:
a) Ex.PW1/1 (OSR) photocopy of power of attorney.
b) Ex.PW1/2 Preliminary credit facility loan application form.
c) Ex.PW1/3 Credit facility loan application form.
d) Ex.PW1/4 Unattested deed of hypothication.
e) Ex.PW1/5 Irrevocable power of attorney
f) Ex.PW1/6 Disbursement memo.
g) Ex.PW1/7 Statement of account dated 07.06.2019.
h) Ex.PW1/8 Certificate under Section 2A of Banker's Book Evidence Act.
i) Ex.PW1/9 Certificate under Section 2A of Banker's Book Evidence Act.
j) Ex.PW1/10 Loan recall notice dated 16.03.2019.
k) MarkX postal receipt.
6. PW1 was duly examined and discharged. Thereafter, exparte plaintiff's evidence was closed on 13.09.2023 and the matter was fixed for final arguments.
CS No.2146/2019 Pg 5 of 7 ICICI Bank Ltd. v. Varinder Singh
7. I have heard the counsel for plaintiff and have perused the record.
8. It is trite law that in the absence of cross examination, testimony as it is can be deemed as correct. At this juncture, judgment of Hon'ble High Court of Delhi in M/s Eco Lab Inc. v. Eco Labs Ltd. 2011 (185) DLT 664 may be referred, wherein it was held:
Since the plaintiff's evidence has gone unrebutted as the defendant has also failed to crossexamine the witness of the plaintiff, the evidence filed by the plaintiff is liable to be taken as correct.
9. Accordingly, the documents exhibited and identified by the plaintiff in his evidence are taken to be correct. The evidence that primarily supports the case of the plaintiff regarding the disbursal of loan and its non payment are Ex.PW1/2 i.e. preliminary credit facility application form, Ex.PW1/3 i.e. credit facility application form, Ex.PW1/4 i.e. unattested deed of Hypothecation and Ex.PW1/6 i.e. disbursement memo. Plaintiff further relied upon Ex.PW1/7 i.e. statement of accounts dated 07.06.2019 read with Ex.PW1/8 i.e. certificate under Section 65B of Indian Evidence Act and Ex.PW1/9 certificate under Section 2A of Banker's Book of Evidence Act. Ex.PW1/10 is legal notice which further supports the case of the plaintiff.
10. Since the auto loan was disbursed from the head office of the plaintiff CS No.2146/2019 Pg 6 of 7 ICICI Bank Ltd. v. Varinder Singh bank which is situated at Jhandewalan, New Delhi, this Court has territorial jurisdiction to try this suit. Further, the suit is also filed within the limitation period.
11. As per Ex.PW1/7, the last payment was made on 01.12.2018 for a sum of Rs.6,781/ and accordingly, the suit having been filed on 22.07.2019, is filed within the limitation period.
12. In view of my observation herein above, present suit is hereby decreed for a sum of Rs.2,20,079/ with costs of the suit. Under these circumstances, the Court deems it fit to exercise its discretion under Section 34 of CPC and award interest at the rate of 7% per annum. Accordingly, plaintiff is awarded interest at the rate of 7% per annum (simple) from date of filing of the suit till realization of the decreetal amount.
13. Decree sheet be prepared accordingly.
14. File be consigned to Record Room. Digitally signed by PAYAL PAYAL SINGAL SINGAL Date:
2023.10.31 (This judgment contains 07 pages 16:39:23 and each page has been signed by me.) +0530 Announced in the open court (PAYAL SINGAL) on 30.10.2023 Civil Judge - 08 (Central)/Delhi CS No.2146/2019 Pg 7 of 7