Delhi District Court
Allahabad Bank vs Allahabad Bank Vs Vijay Kumar Shukla on 21 July, 2023
Suit No. 17573/16 Page 1 of 12
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 17573/16
CNR No. DLSW01-007155-2016
In the matter of :
Indian Bank
Constituted by the Banking Companies
(Acquisition & Transfer of Undertakings) Act, 1970
having its Head Office at
254-260, Avvai Shanmugam Salai,
Royapettah, Chennai - 600014
Branch Office :
Indian Bank,
Through Branch Manager Sh. Amit Kumar
1/304, Sadar Bazar, Delhi Cantt.
New Delhi - 110010
Previously :
Allahabad Bank
a body corporate constituted under the
Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1970 having its Head Office
at 2, Netaji Subhash Road, Kolkata and one of its
branch at 1/304, Sadar Bazar, Delhi Cantt, New
Delhi-110010 through its duly constituted attorney
and Assistant General Manager Mr. Sanjay Kumar Misra
....Plaintiff
Versus
Allahabad Bank vs Vijay Kumar Shukla
Suit No. 17573/16 Page 2 of 12
1. Mr. Vijay Kumar Shukla
S/o Sh. Drup Nath Shukla
R/o 8, Sainik Vihar,
Gali no.6, Mohan Garden,
New Delhi - 110059
Also at :
J-1, Vipin Garden,
Near Gauri Shankar Mandir,
Mohan Garden,
Dwarka Mor, Uttam Nagar,
New Delhi - 110059
2. Mr. Mahesh Sharma
S/o Sh. Jayki Ram
R/o H.No.20, Gali no.6,
Sainik Enclave,
Mohan Garden, New Delhi - 110059 ....Defendants
Date of institution of the suit : 27.09.2016
Final Arguments Heard on : 27.04.2023
Date of Judgment : 21.07.2023
Decision : EX PARTE DECREED
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF
Rs.6,32,703/-
JUDGMENT :
1. Present suit was originally filed u/o XXXVII CPC for the recovery of Rs. 6,32,703/-.
2. The brief facts of the case as mentioned in the plaint originally instituted are reproduced here as under:
(i) The defendant no.1, carrying on the business of retail sale Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 3 of 12 of R.O. Purifier as sole proprietor of the firm run in the name and style of 'Sai Enterprises', approached the plaintiff in the month of September 2013 and vide application dated 24.09.2013 requested plaintiff to sanction him certain credit facility in the nature of Cash Credit (Hypothecation) Limit of Rs.5,00,000/- against the primary security of hypothecation of stocks (both present and future), required by him for the expansion of his aforesaid business. Defendant no.2 offered himself to stand personal guarantee for the repayment and due discharge of all the liabilities arising out of the aforesaid limit sought by defendant no.1 as and when the same fell due to plaintiff from defendant no.1.
(ii) The plaintiff considered the request of defendant no.1 and sanctioned the Cash Credit (Hypothecation) Limit of Rs.5,00,000/- to the defendant no.1 on 26.09.2013. The terms and conditions for such sanction were duly conveyed by plaintiff to defendant no.1 vide Sanction Letter dated 26.09.2013 and defendant no.1 vide Letter of Acknowledgment dated 28.09.2013 acknowledged the receipt of the sanction letter and conveyed his acceptance of the terms and conditions as contained in the said sanctioned letter and also confirmed that he shall execute the necessary prescribed documents Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 4 of 12 and charge over various securities as expressed therein.
(iii) Defendants no.1 and 2 are jointly and severally, in consideration of plaintiff having sanctioned the 'Cash Credit (Hypothecation) Limit' of Rs.5,00,000/- and as security for repayment and due discharge of all the liabilities arising out of the said limit sanctioned to defendant no.1 executed the following documents in favour of the plaintiff :
a) Demand Promissory Note dated 28.09.2013 for Rs 3,00,000/-
with interest @ 1% per annum over Allahabad Bank's Base Rate with monthly rests, the then prime lending rate being 10.20% per annum, executed by defendant No. 1
b) General Letter of Hypothecation dated 28.09.2013 executed by Defendant No. 1
c) Affidavit dated 28.09.2013 by Defendant No.1 to utilize the sanctioned amount for the purpose of expansion of business i.e. the purpose for which the same is sanctioned, not to utilize the same for any speculative business and also declaring that he has not availed any loan facility from any bank/financial institution
d) Letter of Consent Clause dated 28.09.2013 by Defendant No.1 for disclosure of information by plaintiff in the event of default in Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 5 of 12 repayment of plaintiff's dues
e) Agreement of Continuing Guarantee dated 28.09.2013 executed by defendant No.1 guaranteeing repayment and due discharge of all the liabilities arising out of the abovementioned Cash Credit (Hypothecation) Limit of Rs.5,00,000/- granted to the firm 'M/s.Sai Enterprises' of which firm, he is the sole proprietor, with interest and all other incidental charges as and when the same fell due to plaintiff from defendant No.1
f) Agreement of Continuing Guarantee dated 28.09.2013 executed by defendant No.2 guaranteeing repayment and due discharge of all the liabilities arising out of the Cash Credit (Hypothecation) Limit of Rs.5,00,000/- granted to defendant No.1 with interest and all other incidental charges as and when the same fell due to plaintiff from defendant No.1.
(iv) Defendant No.1 availed the Cash Credit (Hypothecation) Limit as sanctioned to him but the operation in the Cash Credit (Account) bearing No.50173056533 in the name of firm "M/s.Sai Enterprises' of which he is the proprietor had been far from being satisfactory as the debit balance in the said account often exceeded the sanctioned limit and remained unadjusted, the monthly stock statements and other Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 6 of 12 financial papers were not submitted by defendant No.1 to the plaintiff despite repeated requests and reminders from the plaintiff and there had been no operation in the account since long which suggested that either defendant No. I has ceased to continue the business activity, for the expansion of which the credit limit abovementioned was sanctioned to him or he is routing the sale proceeds through some other account with some other financial institution.
(v) The defendant No.1 failed to operate the Cash Credit Account bearing No.50173056533 satisfactorily and rendered mounting of debit balance in the said account.
(vi) The plaintiff got served defendants with the legal notice of demand dated 08.07.2014 through its counsel requiring them to liquidate the liability due to plaintiff from them but defendants despite service of the said notice failed to comply.
(vii) The account abovementioned in the name of firm M/s.Sai Enterprises', of which firm, defendant No.1 is the sole proprietor was classified as 'NPA'(Non Performing Asset) w.e.f 28.07.2014 and plaintiff served defendants with the prescribed notice dated 11.08.2014 under Section 13(2) of 'The Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 7 of 12 Act, 2002' but defendants paid to pay any heed to the same as well.
(viii) The plaintiff, in the ordinary and usual course of its business, maintains regular books of accounts and as per said books of accounts, a sum of Rs.4,91,912/- inclusive of interest upto 30.06.2014 is an outstanding due to plaintiff from defendants. Besides the amount due as per said books of accounts, a sum of Rs.1,40,791/- being the amount of interest for the period from 01.07.2014 to 22.09.2016, which amount of interest has though accrued but has not been debited to the 'Cash Credit Account in the name of firm 'M/s.Sai Enterprises of which firm, defendant No.1 is the sole proprietor is also due to plaintiff from defendants. As such, as on date, the total sum of Rs.6,32,703/- with interest thereon is outstanding due to plaintiff from defendants.
(ix) The defendants, jointly and severally have since failed and/or neglected to liquidate the liability due to plaintiff from them despite repeated requests and reminders from the plaintiff and also despite service of legal notice of demand by the plaintiff through its counsel, hence the suit.
3. The suit u/o XXXVII CPC was instituted on 27.09.2016 and summons for settlement of issues were issued against the Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 8 of 12 defendant which were received back unserved. On 13.04.2017, plaintiff was directed to file fresh address of the defendant. On 03.07.2017, ld. counsel for plaintiff submitted that both the defendants are very much residing at the given addresses and prayed for dasti summons, which was allowed. On 13.09.2017, it was observed that though the suit was filed under Order XXXVII CPC, the process was issued as a ordinary suit to the defendants. Thereafter, summons of the suit u/o XXXVII CPC were issued. Process was also given dasti. On 14.12.2017, process was again received back with the report that no such person was found residing at the address, hence the plaintiff was directed to file fresh address of the defendant. On 29.05.2018, summons of the summary suit issued to defendant were received unserved upon both the addresses whereas defendant no.2 Sh. Mahesh Sharma (guarantor) was served on 09.05.2018. On 06.07.2018, ld. counsel for the defendant no.2 appeared and filed her vakalatnama alongwith application u/s 5 of Limitation Act for condoning the delay in entering appearance. Thereafter, fresh summons were also sent to defendant no.1 alongwith dasti summons. Thereafter, defendant no.2 did not appear before the court. Thereafter, on 02.11.2019, ld. counsel for plaintiff submitted that address of the defendant no.1 mentioned in Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 9 of 12 memo of parties is his last known address available with the bank and requested for treating the present suit as ordinary suit for recovery. Separate statement of ld. counsel for plaintiff was also recorded in this regard. Thereafter, vide order dated 01.02.2020, the suit of the plaintiff was treated as an ordinary suit. Ld. counsel for the plaintiff filed an application for substituted service of summons upon defendant no.1 through publication which was allowed and defendant no.1 was ordered to be summoned through publication. On 19.09.2020, substituted service of summons was effected upon defendant no.1. Thereafter, on 12.01.2022, since the defendants did not entered appearance after many opportunities, they were proceeded ex parte.
4. On 12.01.2022, on the basis of pleadings of the parties, the following issues were framed :
(I) Whether plaintiff is entitled for the decree of recovery of Rs.6,32,703/- alongwith interest in his favor and against the defendants, as prayed for? OPP.
(II) Relief.
7. Thereafter, the matter was fixed for plaintiff's evidence.
On 21.05.2022, ld. counsel for plaintiff submitted that Allahabad bank Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 10 of 12 was merged with Indian Bank w.e.f. 01.04.2020 and an application u/o XXII R 10 CPC as well as amended memo of parties needs to be filed which was allowed. Thereafter, on 07.12.2022, ld. counsel for plaintiff filed amended memo of parties and application for substitution of new AR as well as affidavit of evidence of plaintiff witness.
8. On 22.02.2023, PW Sh. Amit Kumar was examined as PW-1 and tendered his affidavit by way of evidence Ex.PW-1/A. He has relied upon the following documents :
(i) Copy of Power of Attorney is de-exhibited as Ex.PW-1/1 and marked as Mark-1 (being photocopy).
(ii) Original loan application form, sanction letter and acknowledgment are Ex.PW-1/2, Ex.PW-1/3 and Ex.PW-
1/4.
(iii) Original Demand Promissory Note is Ex.PW-1/5.
(iv) Original letter of hypothecation is Ex.PW-1/6.
(v) Affidavit is Ex.PW-1/7. (vi) Consent Letter is Ex.PW-1/8.
(vii) Agreement of continuing Guarantee by D-1 is Ex.PW-1/9.
(viii) Agreement of continuining Guarantee by D-2 is Ex.PW-1/10.
(ix) Legal notice is Ex.PW-1/11.
Allahabad Bank vs Vijay Kumar Shukla
Suit No. 17573/16 Page 11 of 12
(x) Letter of NPA (Notice u/s 13(2) SARFAESI Act) is Ex.PW-
1/12.
(xi) Computerised Copy of statement of account is Ex.PW-1/13.
His cross examination was recorded as NIL as defendant was already proceeded ex parte. Thereafter, vide separate statement of AR of the plaintiff company, PE was closed and the matter was fixed for final arguments.
9. I have heard the final arguments and perused the record.
10. In the evidence led by the plaintiffs, the averments in the plaint have been reiterated. I find that the unchallenged testimony of the sole plaintiff's witness as well as the statement of account which is Ex.PW-1/13 which was also duly proved as certified record maintained under the Banker's Book of Evidence Act prove the case of the plaintiff bank on preponderance of probabilities. The statement of account shows that the account was being run till 16.04.2014 and the last credit was made on the same date. The statement of account maintained in ordinary course of business by the bank is trustworthy and reliable to corroborate the averments of the plaintiff bank. Therefore, the plaintiff is entitled to a decree of the amount prayed for.
11. The aforesaid sum shall carry pendente lite interest i.e. Allahabad Bank vs Vijay Kumar Shukla Suit No. 17573/16 Page 12 of 12 from the date of filing of the suit till date of decree @ 10 % per annum and future interest @ 6% per annum till the realization of the amount.
12. Relief: In view of the aforesaid discussion, plaintiffs are entitled for the recovery of total amount of Rs.6,32,703/- along with pendente lite interest i.e. from the date of filing of the suit till date of decree @ 10 % per annum and future interest @ 6% per annum till the realization of the amount. Suit of the plaintiff is decreed accordingly. Cost of the suit is awarded in favour of the plaintiff.
13. Decree sheet be prepared accordingly.
14. File be consigned to Record Room after due compliance.
Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date: 2023.07.21 15:56:45 +0530 Announced in the open court (Sh. Divyang Thakur) On 21.07.2023 ADJ-03/South West Dwarka / New Delhi 21.07.2023 Allahabad Bank vs Vijay Kumar Shukla