Delhi District Court
State Bank Of India vs Mohd. Sehnawaz on 3 December, 2019
IN THE COURT OF SH. SANDEEP GARG,
ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 59090/16
State Bank of India,
Through Stressed Assets Recovery Centre (SARC)
RACPC, first floor,
11, Sansad Marg, New Delhli-110001 ....... Plaintiff
Versus
Mohd. Sehnawaz,
S/o Mohd. Nafees,
R/o H.No. 4929, F/3, Gali No. 3,
East of Seelampur, Sartaz Mohallah,
Near Sunheri Masjid, Kanti Nagar,
Krishna Nagar, Delhi-110031 ...... Defendant
Suit presented on : 27.10.2016
Arguments concluded on : 03.12.2019
Judgment pronounced on : 03.12.2019
EX-PARTE JUDGMENT
1.The present suit for recovery of Rs. 6,35,411/- along with interest and costs has been filed by the plaintiff Bank averring that plaintiff is a Corporate body constituted under the State Bank of India Act, 1955 having its Corporate office registered at Madame Cama Road, Nariman Point, Mumbai and branch offices located all over India. It is a body with perpetual succession and it can sue and be sued in its own name. It is engaged in the business of banking. It has various local head offices including one at New Delhi and has various branch offices throughout India and a centralized Recovery Center called Stressed Recovery Centre at RACPC, Sandad Marg, New Delhi-110001 which is under the administrative control of the Local Head office at New Delhi. The present suit has been filed on behalf of plaintiff CS No. 59090/16 Page no. 1 of 8 State Bank of India vs. Sehnawaz statutory corporation through its official representative Sh. A.K. Chauhan, Manager, State Bank of India, Stressed Assets Recovery Centre, RACPC, Sansad Marg, New Delhi-110001.
2. The defendant had approached the Ajmal Khan Road, Karol Bagh branch of plaintiff bank for availing a vehicle loan for Rs. 14,00,000/- for purchasing vehicle make Toyota Innova vide loan application dated 27.09.2014. Defendant represented himself to be gainfully engaged in the business of wood works under the name and style of M/s Sonu Carpenters. Considering the said representation, the plaintiff agreed to grant vehicle loan and loan account no. 343255188727 was opened.
3. It is averred that the defendant furnished necessary documents and considering the same, plaintiff bank had sanctioned a vehicle loan of Rs. 14,00,000/- on 27.09.2014 which was disbursed on the very same day through car dealer M/s Cosmic Motors (India) Pvt. Ltd. The said loan was repayable with floating rate of interest @ 0.45 % above SBAR (which at that time was 10.00 %) thereby making the effect rate to be 10.45 % per annum with monthly rests which was subject to revision from time to time, subject to change of SBAR or in case of default in the repayment of schedule. The said loan was repayable in 84 EMIs of Rs. 23,569/- each and in the event of default or any irregularity in loan, bank has the right to levy higher rate of interest.
4. While taking the loan, the defendant had executed necessary documents which are as follows:
i. Sanction letter dated 27.09.2014. ii. Loan cum hypothecation agreement dated 27.09.2014. iii. Scheme for purchase of car (Annexure-VIII).
CS No. 59090/16 Page no. 2 of 8 State Bank of India vs. Sehnawaz iv. Arrangement letter dated 27.09.2014. v. Vehicle delivery letter dated 27.09.2014. vi. Operation Letter dated 27.09.2014. vii. Supplementary Loan agreement (Annexure-II). viii. Disclosure of CIBIL (Annexure-I) dated 29.09.2014. ix. Undertaking dated 27.09.2014.
5. The vehicle in question was hypothecated with plaintiff as security for the repayment of the loan together with interest at the rate stipulated above and together with costs, charges etc for which the defendant created first charge by way of hypothecation of the said vehicle, which is duly noted in the registration certificate with concerned RTO and till the repayment of entire loan amount, the defendant is prohibited from creating any charge or encumbrance on the hypothecated vehicle nor shall he dispose of the same without repayment the total loan amount along with interest.
6. The defendant miserably failed to maintain the financial discipline as he did not pay the installments regularly, whereby his account with the plaintiff bank became irregular and sticky. The plaintiff bank in such circumstances gave various letters / reminders dated 04.06.2015, 21.07.2015, 22.11.2015, 28.12.2015, 10.01.2016 & 22.09.2015 etc. to defendant with a request to regularize the loan account, but to no avail. The officers of the plaintiff bank had been contacting the defendant time and again to impress upon him to regularize the account, but to no effect. Due to said continuous and persistent default, the said loan account was categorized as NPA on 01.09.2016 as per RBI guidelines. The plaintiff also issued a notice under Section 13(2) of SARFAESI Act, 2002 dated 19.11.2015 calling the defendant to discharge the full liabilities within 60 days, but the same was not complied with by the defendant.
CS No. 59090/16 Page no. 3 of 8 State Bank of India vs. Sehnawaz
7. Despite of personal visits and telephonic reminders, the defendant failed to pay the outstanding resulting into irregularities in the loan account which shows the malafide intention of the defendant not to pay the genuine and legally recoverable dues of the bank. Hence, the plaintiff bank was constrained to give legal notice dated 02.09.2016 which was duly served, but neither complied, nor heeded to.
8. Due to non-complaince of said notices, plaintiff adopted legal recourse, obtained physical possession of the vehicle in question on 22.12.2015 and gave auction notice by way of inviting bids on 18.03.2016. After following due procedure through inter-se bidding, the highest / successful bidder Sh. Shankar Joshi deposited the initial amount of 25 % as bid amount and the balance amount was deposited within stipulated time, totaling to Rs. 9,10,000/- which has been duly credited in the loan account. The defendant had agreed to pay the balance outstanding after adjusting the said bid/auction amount as standing in the statement of account on relevant date alongwith cost, interest and recovery & Auction charges which were duly paid to Authorized Recovery Agent.
9. The defendant is liable to pay the outstanding amounts as per the details mentioned below :-
i) Outstanding due as on 01.09.2016 towards Rs. 5,05,010/-
principal as well as interest calculated upto date of NPA
ii) Un-applied interest at variable rates for the Rs. 18,627/- period 01.09.2016 to 15.10.2016.
iii) Charges incurred by plaintiff in the seizure, Rs. 1,11,015/-
Auction and engaging the services of
recovery agent
iv) Misc. Debits Rs. 759/-
Total Rs. 6,35,411/-
CS No. 59090/16 Page no. 4 of 8
State Bank of India vs. Sehnawaz
The present loan was followed up by RACPC, 11, Sansad Marg, New Delhi-110001. Hence, the plaintiff is constrained to institute the present suit.
10. Upon filing of the present suit, summons for settlement of issues were issued to the defendant which were duly served upon him after which, written statement was filed by the defendant on 03.06.2017. Replication was filed by the plaintiff after which, issues were framed on 05.06.2017. Thereafter, no one appeared on behalf of defendant and he was proceeded ex-parte vide order dated 04.07.2017. An application U/o 9 Rule 7 r/w Section 151 CPC, was filed on behalf of defendant which was allowed, subject to cost of Rs. 1,000/-. An application for substitution of AR was filed on behalf of plaintiff which was allowed vide order dated 05.06.2018. Thereafter, an application U/o 18 Rule 17 CPC was filed by the plaintiff, but no reply of the said application was filed by defendant and the said application was disposed of vide order dated 21.12.2017. No one appeared on behalf of the defendant and he was proceeded ex-parte vide order dated 26.11.2019. An application for substitution of AR was filed by the plaintiff which was allowed on 26.11.2019 and Sh. Sharad Kishore Srivastava, Managar was substituted as AR in place of earlier AR.
11. In order to substantiate its case, the plaintiff has examined its AR Sh. Sharad Kishore Srivastava, Manager as PW-1. He tendered his evidence by way of affidavit and reiterated the facts averred in the plaint and has placed reliance on the following documents:
a) Copy of Regulation no. 76 & 77 of the State Bank of India General Regulation, 1955 alongwith gazette notification of 2005 with memo CS No. 59090/16 Page no. 5 of 8 State Bank of India vs. Sehnawaz dated 11.04.2008 as Ex. PW 1/1.
b) Copy of proforma invoice dated 23.09.2014 as Ex. PW 1/1A.
c) Sanction letter dated 27.09.2014 as Ex. PW 1/2.
d) Original receipt of advance money / margin money dated 29.09.2014 alongwith proforma invoice as Ex. PW 1/3.
e) Certificate of RTGS details given by vendor as Ex. PW 1/4.
f) Loan application dated 27.09.2014 as Ex. PW 1/5.
g) Arrangement letter dated 27.09.2014 as Ex. PW 1/6.
h) Loan cum hypothecation agreement dated 27.09.2014 as Ex. PW 1/7.
i) Disclosure of CIBIL (Annexure) dated 27.09.2014 as Ex. PW 1/8.
j) Scheme for purchase of car (Annexure-VIII) as Ex. PW 1/9.
k) Operation letter dated 27.09.2014 as Ex. PW 1/10.
l) Undertaking dated 27.09.2014 as Ex. PW 1/11.
m) Identification of signatures of loan sanctioning authority by the then AR as Mark-A to Mark C (Colly) respectively.
n) Copy of Election I-card, Aadhar card, electricity Bill and copy of Insurance bond of defendant as Mark-E, F, G & H respectively.
o) Copies of notices dated 04.06.2015, 21.07.2015, 22.11.2015, 28.12.2015, 10.01.2016, 22.09.2015, 09.11.2015 requesting to regularize the loan account as Ex. PW 1/12, Ex. PW 1/13, Ex. PW 1/14, Ex. PW 1/15, Ex. PW 1/16, Ex. PW 1/17 & Ex. PW 1/18 respectively.
p) Original letter of surrender dated 22.12.2015 as Ex. PW 1/19.
q) Original Auction cum sale proceedings dated 18.03.2016 as Ex. PW 1/20.
r) Original delivery note as Ex. PW 30.03.2016 as Ex. PW 1/21.
s) Payment voucher showing payment made to recovery agent as Ex. PW 1/22.
CS No. 59090/16 Page no. 6 of 8 State Bank of India vs. Sehnawaz
t) Copy of legal notice dated 02.09.2016 as Ex. PW 1/23. u) Postal receipts as Ex. PW 1/24.
v) Returned envelope / AD card as Ex. PW 1/25.
w) Certified copy of statement of account as Ex. PW 1/26.
x) Certificate of accrued interest as Ex. PW 1/27.
y) Certificate under Section 2A(b) and 2A(c) of the Banker's Book of Evidence Act, 1891 r/w Section 65-B of Indian Evidence Act as Ex. PW 1/28.
12. The Court has heard Sh. Nishant Kumar Dass, Ld. counsel for the plaintiff and has gone through the record with his assistance.
13. The testimony of PW-1 has remained un-rebutted and un- controverted. The plaintiff has proved sanction letter dated 27.09.2014, original receipt of advance money/ margin money dated 29.09.2014 alongwith proforma invoice, certificate of RTGS details given to the vendor, loan application dated 27.09.2014, loan-cum-hypothecation agreement dated 27.09.2014, arrangement letter dated 27.09.2014, operation letter dated 27.09.2014, undertaking dated 27.09.2014, copies of demand notices, original letter of surrender dated 22.12.2015, original delivery note dated 30.03.2016, payment voucher of recovery agent, copy of legal notice, postal receipts and statement of account duly certified under the Banker's Books Evidence Act. Therefore, the case of the plaintiff is based on and is substantiated by documentary evidence. The loan was followed up by RACPC, Sansad Marg, New Delhi which falls within the territorial jurisdiction of this court. A perusal of the surrender letter dated 22.12.2015 submitted by the defendant shows that he had undertaken to pay the balance amount in 6 equal monthly installments and therefore, the suit is within limitation period.
CS No. 59090/16 Page no. 7 of 8 State Bank of India vs. Sehnawaz
14. In view of the un-rebutted and un-controverted evidence adduced by the plaintiff, the Court holds that it has been successful in substantiating its case against the defendant and the plaintiff is held entitled to recovery of a sum of Rs. 6,35,411/- along with interest at the agreed rate of 10.45 % per annum, with monthly rests, from the defendant w.e.f. 16.10.2016 till the date of its realization. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to the record room.
Pronounced in open Court (Sandeep Garg)
on 03.12.2019 Additional District Judge-01,
New Delhi District,
Patiala House Courts,
New Delhi
CS No. 59090/16 Page no. 8 of 8
State Bank of India vs. Sehnawaz