Delhi District Court
Ashok Kumar Gulati vs Corporation Bank on 22 August, 2014
Suit No.201/12
IN THE COURT OF SH. SUBHASH KUMAR MISHRA,
CIVIL JUDGE7, WEST, TIS HAZARI COURTS, DELHI
Suit No. 201/12
Ashok Kumar Gulati
S/o Late Sh. Bal Krishan Gulati
R/o E298, G.K. II,
New Delhi - 110048.
...............Plaintiff
Versus
Corporation Bank
Through its officer/Manager
M3 & M4 Shopping Centre
Greater Kailash, Part II,
New Delhi - 110048. ..............Defendant
SUIT FOR RECOVERY OF Rs.2,60,682.66
Date of institution of the suit : 05.02.2003
Order reserved on : 22.08.2014
Date of Judgment : 22.08.2014
JUDGMENT
1. In the plaint, it is stated that the plaintiff was having current account no.893 with defendant no.1 in its branch at M3 & M4 Shopping Centre Greater Kailash, Part II, New Delhi48. He had stood as a surety for Late Sh. S.K. Sachdeva, who had borrowed money from defendant no.1. Sh. S.K. Sachdeva, who was running business in the name and style as M/s Page 1/10 Suit No.201/12 Sandeep Agencies from shop No.12, Central Market, Ambedkar Nagar, Dakshinpuri, New Delhi, died on 10.10.2000. The plaintiff had made a request in writing on 27.12.1996 to defendant no.1 for withdrawing his said guarantee. The same was received and considered by Mr. Vijay Gupta, the then Manager of defendant bank. He did not take any action against Sh. S.K. Sachdeva, who was then alive. On the contrary, more credit facility was given to Late Sh. S.K. Sachdeva for which the plaintiff had not given any guarantee. The plaintiff again wrote a letter on 23.10.1998 to defendant no.1 and defendant no.1 issued a letter dated 02.04.1997, but without considering the same, defendant no.1 seized the credit account no.893 of the plaintiff and withdrew Rs.2,44,390/ and adjusted the same towards outstanding debt of Sh. S.K Sachdeva, who was dead by then. The plaintiff had withdrawn his guarantee during the lifetime of the borrower, therefore, the defendant bank had misappropriated the amount from the account of the plaintiff without any notice without attaching the hypothecated property of the principal borrower. After death of Sh. S.K. Sachdeva, Sh. Sandeep Rai Sachdeva, son of Late Sh. S.K. Sachdeva had admitted in writing that he had taken over the business of his father with all assets and liabilities and after the death of Sh. S.K. Sachdeva, his legal heirs are liable to pay the amount borrowed by him. Hence plaintiff has filed the present suit for recovery of Rs.2,60,682.66 along with interest and costs of the suit and for sale of hypothecated stocks.
2. In the written statement filed by defendant, preliminary objections have been raised stating that a suit for recovery of Rs.1,15,475.24 has been filed by defendant no.1 against Sh. Sandeep Rai Sachdeva and others Page 2/10 Suit No.201/12 including the plaintiff herein, prior to filing of present suit, therefore, the present suit is liable to be stayed; that the contentions raised by the plaintiff in the present suit have also been raised by him in his defence in the written statement filed by him in the said suit, therefore, issues raised by the plaintiff in this suit are directly and substantially in issue as involved in the previously instituted suit by the defendant no.1; that decision of the previous suit will act as resjudicata in the present suit and that in order to avoid conflicting decisions, proceedings in the present suit may be kept pending till decision of the suit filed by defendant no.1 bearing no.10/2, titled as Corporation Bank Vs. Sandeep Rai Sachdeva and others.
On merit, it is stated that defendant was not aware of the fact of death of Sh. S.K. Sachdeva until 23.03.2000 when his son had informed the same. It denies that the plaintiff was discharged from the guarantee because the guarantee executed by the plaintiff in favour of Sh. S.K. Sachdeva was a continuing guarantee, therefore, the plaintiff continues to be liable as a guarantor till the dues are paid in full. It is denied that fresh credit facility was granted to Sh. S.K. Sachdeva stating that all the credit facilities granted to Sh. S.K. Sachdeva was guaranteed by the plaintiff. Defendant states that it had not received any letter dated 23.10.1998. Defendant also denies that it has done any act or omission detrimental to the interest of the plaintiff. It is stated that the bank had called upon the plaintiff to repay the dues before exercising its lien on the amount belonging to plaintiff and admission of the son of Sh. S.K. Sachdeva that he has taken over the assets and liabilities of his father, does not absolve the plaintiff from its liability as a guarantor.
Apart from this, averments made in the plaint have been denied Page 3/10 Suit No.201/12 praying that the suit may be dismissed with exemplary costs.
3. Plaintiff had originally instituted the present suit against Corporation Bank as defendant no.1, Sh. Sandeep Rai Sachdeva as defendant no.2 and Smt. Sunita Sachdeva as defendant no.3. However, later on, vide order dated 08.09.2011, defendant no.2 and 3 were discharged from the present suit, in view of statement of plaintiff which was recorded separately.
4. Plaintiff filed the replication denying the defence of defendant and reiterating the averments as mentioned in the plaint.
5. On the pleadings of the parties, following issues were framed on 28.04.2005 :
ISSUE No. 1 : Whether the suit is liable to be stayed under Section 10 of CPC? OPD1 ISSUE No. 2 : Whether the plaintiff is entitled to a money decree against the defendants as prayed for? OPP ISSUE No. 3 : Whether the plaintiff is entitled to a decree of sale of hypothecated goods as prayed for? OPP ISSUE No. 4 : Whether the plaintiff is entitled to a recovery of Rs.2,60,682.66 against the defendant no.1 as prayed for? OPP ISSUE No. 5 : Whether the plaintiff is entitled to Page 4/10 Suit No.201/12 interest, if yes, at what rate and for what period? OPP ISSUE No. 6 : Relief.
6. In support of his case, plaintiff examined himself as PW1 and Sh.
Sanjay Kumar, LDC, Record Room as PW2. In his testimony, PW1 relied on the following documents :
(a) Letter dated 27.12.1996 : Ex. PW1/1
(b) Letter dated 02.04.1997 : Ex. PW1/2
(c) Letter dated 23.02.1998 : Ex. PW1/3
(d) Letter dated 15.03.1997 : Ex.PW1/4
(e) Letter dated 21.10.1997 : Ex.PW1/5
(f) Statement of account : Ex.PW1/6
(g) Cheque and returning memo : Ex.PW1/7 & 1/8
(h) Letter dated 21.10.1997 : Ex.PW1/9
(i) Letter dated 06.12.1996 : Ex.PW1/10
(j) Letter dated 15.03.1997 : Ex.PW1/11
7. Defendant did not examine any witness in support of its case.
8. After hearing the arguments and going through the material available on record, my issuewise findings are as under :
ISSUE No. 1 : Whether the suit is liable to be stayed under Section 10 of CPC? OPD1 Page 5/10 Suit No.201/12
9. Onus to prove this issue was on the defendant. However, the defendant did not lead its evidence. Moreover, during arguments certified copy of memo of parties of suit no.118/2003 and order dated 12.04.2006 vide which the said suit was dismissed in default, was filed. The said suit was filed by Corporation Bank i.e. defendant herein against Sh. Sandeep Rai Sachdeva, Sh. S.K. Sachdeva and Sh. Ashok Gulati, for recovery of Rs.1,15,475.24. As the previous suit i.e. suit no.118/03 filed by the defendant against the plaintiff has already been dismissed in default vide order dated 12.04.2006, the proceedings in the present suit need not be stayed under Section 10 of CPC. Issue no.1 is decided accordingly.
ISSUE No. 2 : Whether the plaintiff is entitled to a money decree against the defendants as prayed for? OPP;
ISSUE No. 4 : Whether the plaintiff is entitled to a recovery of Rs.2,60,682.66 against the defendant no.1 as prayed for? OPP ; and ISSUE No. 5 : Whether the plaintiff is entitled to interest, if yes, at what rate and for what period?
OPP
10. Onus to prove these issues was on the plaintiff. PW1/ plaintiff, in his testimony, deposed that he had made request in writing on 27.12.1996 to the bank for withdrawing his guarantee, which was received by Sh. Vijay Gupta, the then Manager of defendant bank. However, no action was taken in this regard. PW1, further deposed that instead of taking any action, more Page 6/10 Suit No.201/12 credit facilities was given to Late Sh. S.K. Sachdeva for whom the plaintiff had given the guarantee. PW1 also deposed that he wrote a letter dated 23.02.1998 i.e. Ex.PW1/3, to defendant but without considering the same, the defendant seized credit account number 893 and withdrew Rs.2,44,390/ from the account of plaintiff and adjusted the same towards outstanding debts of Sh. S.K. Sachdeva.
PW1 was cross examined only on behalf of defendant no.2 and 3 and proceedings against defendant no.2 and 3 were dropped vide order dated 08.09.2011, therefore, the said cross examination cannot be taken into consideration.
Further, even if the said cross examination is taken into consideration, neither any material contradiction has been brought about in the testimony of PW1 nor any question was put to challenge testimony of PW1. In his cross examination conducted on behalf of defendant no.2 and 3, only two suggestions were put to PW1 that Corporation Bank, i.e. the defendant herein, had frozen account no.893 of his company namely Motoraids India and that he had no claim against defendant no.2 and 3, which were admitted by PW1.
It means that the testimony of PW1 remained unchallenged by the defendant as he was not cross examined by the defendant.
In SriChand and Shivan Das Vs. State 28 (1985) DLT 360, it has been held by Hon'ble High Court of Delhi that if the statement of the witness is allowed to go unchallenged and no question is put to him with regard to the same during the course of crossexamination, no reason remains to disbelieve such witness. In the same Judgment, it has also been held that where evidence of the witness is allowed to go unchallenged with regard to Page 7/10 Suit No.201/12 any particular point it may safely be accepted as true.
Accordingly, the testimony of PW1 to the effect that he had made request for withdrawing his guarantee, despite this no action was taken in this regard rather more credit facilities was given to Late Sh. S.K. Sachdeva for whom the plaintiff had given the guarantee and despite his letter dated 23.02.1998 i.e. Ex.PW1/3, the defendant froze credit account number 893 and withdrew Rs.2,44,390/ from the said account and adjusted the same towards outstanding debts of Sh. S.K. Sachdeva, can be accepted as true.
Ex.PW1/1 is letter dated 27.12.1996 written by the plaintiff to Chief Manager of defendant bank requesting that his guarantee regarding account no.3/95 may be cancelled. Ex.PW1/3 is letter dated 02.04.1997 addressed to the plaintiff by Chief Manager of defendant bank acknowledging the receipt of letter dated 27.12.1996 i.e. Ex.PW1/1 and stating that defendant continued to be liable for the amount outstanding till the date of receipt of the said letter dated 27.12.1996. It means that defendant bank absolved the plaintiff from the liability of the guarantor from the date of receipt of letter dated 27.12.1996.
In para 2 of plaint, it is stated that plaintiff had made request in writing on 27.12.1996 to the bank to withdraw his guarantee whereby he stood as a guarantor for M/s Sandeep Agencies, account no.3/95. In written statement, in reply of said para, it is denied that the plaintiff was released from the guarantee. However, this stand of defendant is contrary to the averments of letter Ex.PW1/3 written by Chief Manager of defendant bank wherein he intimated the plaintiff that his liability stood till date of receipt of letter dated 27.12.1996.
Further, in para 6 of the plaint, plaintiff states that plaintiff withdrew Page 8/10 Suit No.201/12 his guarantee during the lifetime of the borrower and the defendant, without any cogent reason, misappropriated an amount of Rs.2,44,390/ from the current account no.893 of the plaintiff. In written statement, in reply of the said para, it is denied that guarantee executed by plaintiff was withdrawn and that the defendant bank was well within its right to adjust the dues outstanding from Late Sh. S.K. Sachdeva by exercising its lien on the amount belonging to the plaintiff.
From the written statement, it is clear that Rs.2,44,390/ from the current account of plaintiff bearing no.893 was deducted towards outstanding balance of loan account no.3/95 for which he had stood as a guarantor, even after the letter of plaintiff dated 27.12.1996 i.e. Ex.PW1/1. Moreover, from the letter of defendant dated 02.04.1997, i.e. Ex.PW1/3, it is clear that the liability of the plaintiff as a guarantor was restricted till the date of receipt of letter dated 27.12.1996 i.e. Ex.PW1/1.
It means that despite revocation of guarantee by the plaintiff, which was accepted by the defendant, Rs.2,44,390/ was deducted from the current account of plaintiff bearing no.893 and, therefore, the plaintiff is entitled to recover the said amount of Rs.2,44,390/ from the defendant. Moreover, the said transaction was commercial in nature, therefore, plaintiff is also entitled to recover pendentelite and future interest @12% per annum. Issue no.2, 4 and 5 are decided accordingly.
ISSUE No. 3 : Whether the plaintiff is entitled to a decree of sale of hypothecated goods as prayed for? OPP
11. Onus to prove this issue was on the plaintiff. In the plaint, plaintiff Page 9/10 Suit No.201/12 has prayed that an order may be passed directing the sale of all the hypothecated stocks and the truck, on which the defendant has a charge and after deducting the expenses of the same, the amount be paid to the plaintiff.
While deciding issue no.2, 4 and 5, plaintiff has already been held entitled to recover Rs.2,44,390/ along with pendentelite and future interest @12% per annum from the defendant. Therefore, the defendant would pay the amount to plaintiff but the plaintiff cannot seek a direction as to in which manner the decretal amount will be paid to him by defendant. Issue no.3 is decided accordingly.
Relief:
12. In view of the findings upon issue no.1 to 5, suit of the plaintiff is decreed in terms that defendant do pay to the plaintiff a sum of Rs.2,44,390/ along with pendentelite and future interest @12% per annum. Order of costs in favour of plaintiff.
Decree sheet be prepared accordingly and file be consigned to Record Room after completion of necessary formalities.
ANNOUNCED IN OPEN COURT
ON 22.08.2014 (Subhash Kumar Mishra)
Civil Judge07/West/THC
Delhi
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