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Delhi District Court

Addl. Senior Civil Judge-Cum- Judge ... vs Anil Dhingra on 11 April, 2013

               IN THE COURT OF SH. SONU AGNIHOTRI,
        ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
                   COURT-CUM- GUARDIAN JUDGE,
                    DISTRICT: SOUTH, NEW DELHI.

   CS No. 137/12
   UNIQUE ID NO. 02406C0083482012
   CANARA BANK,
   a body corporate Incorporated under the Banking
   Companies (Acquisition and Transfer
   of Undertaking) Act, 1970 (Act No. 5 of
   1970) having its head office at 112,
   J.C. Road, Banglore and amongst others
   a branch office at S. D. Area, New Delhi.
   (Through its constituted Attorney)        .................. Plaintiff.


                                       Vs.

   ANIL DHINGRA,
   D-9, 24, DLF Phase-I,
   Gurgaon, Haryana.                               .............Defendant.


        DATE OF INSTITUTION        : 12.04.2012
        DATE OF RESERVING JUDGMENT : 25.03.2013
        DATE OF PRONOUNCEMENT      : 11.04.2013


                           EX-PARTE JUDGMENT

           Vide this Ex-parte judgment, I shall dispose of suit filed by
   plaintiff against defendant for recovery of Rs.1,44,817/-.



CS No. 137/12                                                           Page No. 1 of 5
             Relevant facts necessary for disposal of the present suit are as
   follows:-
       1.

In the suit, it is stated that plaintiff is a body Corporate incorporated under Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970 having its head office at 112, J. C. Road, Banglore and branches through out India including one at S. D. Area, New Delhi and may sue or be sued in its name.

2. It is stated that Sh. Ashok Kumar Arora is in services of plaintiff bank and presently is working as Manager of plaintiff bank. It is stated that he holds GPA from plaintiff bank having authority to institute present suit and to take all steps which he deem fit in interest of plaintiff bank.

3. It is stated that defendant is maintaining a Saving Bank Account bearing no. 0346101058182 with plaintiff bank and the account is maintained in books of accounts of defendant in normal course of banking business.

4. It is stated that during course of banking business, defendant requested for temporary overdraft facility for Rs. 1,25,000/- with the assurance that he will clear the same within a week.

5. It is stated that plaintiff bank considered request of defendant and cleared cheque bearing no. 157179 issued by defendant at request of defendant and a temporary clean overdraft was created in account of defendant by plaintiff bank. It is stated that assurance was given by defendant to replenish with sufficient funds to liquidate overdrawing/clean overdraft so granted.

6. It is stated that defendant thereafter did not make any deposit in his account and thus overdrawing permitted by plaintiff bank remained unadjusted and outstanding kept on increasing on account interest from time to time.

7. It is stated that plaintiff bank made various requests/demands for liquidation of dues in account of defendant but to no avail. It is stated that amount of said temporary overdraft facility alongwith interest has not been paid by defendant despite several reminders. It is stated that now total amount due from defendant to plaintiff bank is Rs. 1,44,817/- including principal, interest and other charges. It is stated that cause of action arose in Delhi as S/B account documents were executed in Delhi and overdraft facility was granted to defendant at plaintiff's bank S.D. Area Branch, New Delhi.

8. Plaintiff has prayed for passing decree in favour of plaintiff and against defendant for a sum of Rs.1,44,817/- with pendent lite and future interest @17.25% per annum till date of realization and cost of the suit.

9. Defendant was served by way of publication but that defendant did not appear after service and defendant was proceeded ex-parte vide order dated 05.01.2013.

10. I have heard arguments addressed by counsel for plaintiff and perused the record.

11. Plaintiff in ex-parte evidence examined Sh. S. K. Kashyap as PW-1. PW-1 has relied upon his affidavit vide Ex. PW-1/A, copy of General Power of Attorney vide Ex. PW-1/1, Original account opening form and information sheet of defendant vide Ex. PW-1/2, Ex. PW-1/3 respectively and statement of account of defendant vide Ex. PW-1/4 (in affidavit of PW-1, the same has been wrongly mentioned to be Ex. PW-1/5 whereas in deposition of PW-1 before Court and on Court Record, the same is Ex. PW-1/4).

12. PW-1 has authority to depose before Court on behalf of plaintiff bank stands proved in view of copy of GPA in his favour CS No. 137/12 Page No. 4 of 5 (Ex. PW-1/1) remaining unrebutted. The factum of defendant having a saving bank account with plaintiff bank's branch stands proved in view of Ex. PW-1/2 to Ex. PW-1/3 remaining unrebutted. Factum of defendant being in liability of Rs. 1,44,817/- towards plaintiff bank stands proved in view of Ex. PW-1/4 (statement of account of defendant) remaining unrebutted.

13. Factum of clearing of cheque bearing no. 157179 of defendant without defendant having sufficient amount to clear the same stands proved in view of Ex. PW-1/4 remaining unrebutted. The fact of plaintiff providing overdraft facility to the defendant to the tune of Rs.1,25,000/- stands proved on account of Ex. PW-1/4 remaining unrebutted. In view of these facts, suit of plaintiff is liable to be decreed. Accordingly decree is passed in favour of plaintiff and against defendant for a sum of Rs.1,44,817/- with interest @ 9% per annum from date of filing of present suit till date of realization. Decree Sheet be prepared accordingly. File be consigned to Record Room. Announced in open Court on 11.04.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Courts, New Delhi.