Delhi District Court
M/S Icici Bank Ltd vs Naresh Kumar Kumawat on 21 May, 2015
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL03)
TIS HAZARI COURTS/ DELHI
Date of institution of the suit : 03.03.2014
Date on which order was reserved : 16.05.2015
Date of decision : 21.05.2015
Suit No. 278/2015 Unique Case ID No. 02401C0104092014
M/s ICICI BANK LTD.
Having its registered office at :
Landmark, Race Course Circle,
Vadodara390007.
Having its Branch Office at :
2nd Floor, Videocon Tower, BlockE1, Jhandewalan
Extention, New Delhi. ....Plaintiff
Versus
Naresh Kumar Kumawat,
S/o Sh. Matu Ram Verma,
R/o K16/11, DLF, PhaseII,
Gurgaon122002 ....Defendant
J U D G M E N T
1. This is a suit for recovery of Rs. 5,74,926.16/ (Rs. Five Lacs Seventy Four Thousand Nine Hundred Twenty Six and Sixteen Paise). Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 1
2. The brief resume of the facts of the case, as set out in the plaint, is that the plaintiff is a company incorporated within the provisions of the Companies Act, 1956 and is in the banking business and was subject to the guidelines and regulations passed by the Reserve Bank of India having its Branch office at Block E1, Videocon Tower, Jhandewalan Extention, New Delhi - 110005.
3. The defendant had approached the plaintiff bank for grant of a loan from the plaintiff bank for purchase of a vehicle namely 'ALTIS/HL' bearing registration No. HR26BG7400 and the plaintiff bank sanctioned a vehicle loan of Rs. 9,99,000/ to the defendant vide loan agreement dated 14122010 vide loan account No. LAGUR00023143565 and the borrower/defendant agreed to repay the said loan amount to be repaid in 59 equal monthly installments of Rs. 20,963/ each and the defendant executed several documents i.e. credit facility application along with terms and conditions, unattested deed of hypothecation & Irrevocable Power of Attorney in favour of the plaintiff bank and thus, the defendant was bound with the terms and conditions of the loan agreement executed between the parties.
Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 2
4. It is stated in the plaint that the defendant has duly received the loan amount, but after receipt of the loan amount, the defendant failed to adhere to the financial discipline of the repayment of the loan amount in monthly installments and defaulted 5 out of 37 installments due on the date of filing of the suit on 03032014 remained to be paid and an arrears of an outstanding amount of Rs. 1,04,815/ remained due and payable as per statement of account drawn on 30.01.2014 and that compelled the plaintiff bank to foreclose the entire loan amount in terms of the loan agreement vide loan recall notice dated 08.05.2013 demanding a sum of Rs. 83,852/ as an arrear and a total outstanding sum of Rs. 6,74,228/ as on 03052013. But despite loan termination notice, the defendant did not pay any heed and remained defaulter to pay the outstanding amount.
Thus, the present suit for recovery of a sum of Rs. 5,74,926.16/ was filed by plaintiff praying for passing a money decree for a sum of Rs. 5,74,926.16/ along with an interest @ 24% per annum from 30012014 till realization of the decreetal amount.
5. The defendant was duly served with summons of the suit through Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 3 courier service on 18032015 but despite due service, the defendant did not cause his appearance in the Court, thus, the defendant was proceeded exparte, vide order dated 21.03.2015.
6. Thereafter, the plaintiff bank has examined its AR, Sh. Mohit Grover in support of his claim, who has proved the various documents on record, which are ExPW1/1 to ExPW1/7 viz:
Copy of Power of attorney is Ex.PW1/1 (OSR). Original copy of Credit facility application form is Ex.PW1/2. Original copy of unattested deed of hypothecation is Ex.PW1/3. Original copy of irrevocable power of attorney is Ex.PW1/4. Original Disbursement Memo is Ex.PW1/5. Certified Statement of account is Ex.PW1/6. Original certificate under Sec. 2A of The Banker's Books of Evidence Act is Ex. PW1/6A Office Copy of Loan Recall notice is Ex.PW1/7. Copy of Postal receipt is Mark X
7. I have meticulously gone through the record and have given my thoughtful consideration to the submissions of Sh. Manish Dewan & Sh. Naveen Kumar, Ld. Counsels for the plaintiff, in light of the records. Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 4
8. The allegations made by him on his affidavit regarding the loan taken by the defendant and non payment of the same are substantiated by the said documents and the averments made in this regard have gone unrebutted and unchallenged.
9. It is a well settled principle of law that if for the examinationinchief of the plaintiffs' witnesses on the point in issue, no crossexamination is preferred then the court can hold that defendant accepts the plaintiff's case in entirety as settled in Traders Syndicate Vs. Union of India AIR 1983 Calcatta 337, Also in view of the provisions of 137 & 138 of Indian Evidence Act, absence of crossexamination of the statement on the point of disputes, the statement in examinationinchief has to be taken as true unless and otherwise proved on record. (Reliance is placed on the judicial opinion expressed in the case titled as Rajender Prasad Vs. Darshana Devi cited as 2001 (3) CCC 622 (SC).
10. Thus, the plaintiff has established on record that it is entitled for the recovery of the outstanding amount remained due & payable by the defendant.
Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 5
11. So far as interest is concerned, an interest @ 24 % per annum is claimed, but in view of provision of section 34 of CPC for the commercial transaction as one in hand, the interest @ 6 % per annum is the appropriate rate of interest on the principal sum due.
12. Accordingly, the suit of the plaintiff is decreed against the defendant for:
(i) a sum of Rs. 5,74,926.16/ along with
(ii) simple interest @ 6 % per annum pendentlite and future
interest from filing of the suit till its realization.
(iii) the execution of the money decree shall be subject to the deductions of the sale proceeds of the vehicle, in case of sale of the vehicle, if repossessed, in pursuance of receiver order dated 22052014 passed under Order 40 Rule 1 CPC and if a leave to sale of such vehicle is permitted.
An affidavit in this regard be filed by the plaintiff Bank at the time of execution.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Archana Sinha)
Delivered and Announced Addl. District Judge (Centl.03)
in the open Court Tis Hazari Courts / Delhi
On 21.05.2015 21.05.2015
Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 6
CS No.278/2015
M/s ICICI Bank Ltd. Vs Naresh Kumar Kumawat
21.05.2015
Present: Sh. Manish Dewan & Sh. Naveen Kumar, Ld. Counsels
for the plaintiff
Defendant is Exparte vide order dated 21032015 The application dated 26.02.2014 moved under Order 40 Rule 1 CPC has already been disposed of vide order dated 22052014 by the predecessor court.
However, Receiver's report regarding repossession of the vehicle, not filed till date.
Vide separate detailed judgment of even date announced in the open court today, the suit of the plaintiff stands decreed.
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to Record Room.
(Dr. Archana Sinha) ADJ03/Central/Delhi 21.05.2015 Suit No. 278/2015 ICICI Bank Ltd. V/s Naresh Kumar Kumawat Page No. 7