Delhi District Court
1 Sh. Kamal Jain vs . Satin Credit Care Network Ltd. & Anr. on 13 August, 2010
1 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
In the Court of Sh. P.K. Matto, Additional District Judge,
Karkardooma Courts, Delhi.
RCA No.:-- 38/09
DATE OF INSTITUTION : 7.12.09
DATE OF RESERVING JUDGMENT : 9.8.10
DATE ON WHICH JUDGMENT WAS PRONOUNCED: 13.8.10
Sh. Kamal Jain,
C/o Amar Nitting Industries,
448, Pathanpura, Shahdara,
Delhi-110032
through SPA Sh. Amar Kumar Jain.
...............Appellant/Defendant no.1.
Versus
1. Satin Credit Care Network Ltd.
Having its Registered Office at 306,
Lusa Tower, Azadpur Commercil Complex,
Delhi-110033.
Through its Authorized Representative,
Mr. Baljeet Singh, Officer (Legal).
.............Respondent no.1/plaintiff.
2. Sh. Narinder jain,
4929, L/1 Gali No.3,
Sartaj Mohalla, East Seelampur,
Delhi.
............Respondent/defendant no.2.
:JUDGMENT:-
1. This is an appeal against the judgment and decree dated 5.11.2009 passed by the court of ld. JSCC North East Karkardooma, Delhi, whereby the suit of the plaintiff for recovery of Rs.27480/- along with interest @ 8% per annum from the date of filing of the suit till realization of the amount has been decreed.
2. Feeling aggrieved with the judgment and decree dated 5.11.2009 passed by the ld. trial court. The appellant/defendant no.1 has preferred the present appeal.
2. Briefly stating, the plaintiff/respondent no.1 has filed the suit for recovery of Rs.27480/- along with interest at the rate of 24% per annum against the defendants, on the averments that the plaintiff/respondent no.1 is a company registered with the registrar of the companies as per the provisions of the Companies Act, who has its registered office at 603, Lusa Tower Azadpur Commercial Complex Delhi, and Mr. Baljit Singh is the AR/officer (legal) of the plaintiff company, who is authorized to file Page No. 1 of 10 2 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
the suit on behalf of the plaintiff company vide resolution dated 30.09.2004 passed by the Board of Directors and a power of attorney dated 17.11.2004.
3. It is further stated that the plaintiff is having its business of leasing and financing the vehicles and consumer durable goods, as well as, grant of loans to its clients under the monthly installments collections scheme on mutually agreed terms and conditions.
4. It is further stated that the defendant no.1 is the main borrower, whereas the defendant no.2 stood guarantor to the vehicle loan cum hypothication agreement no.B-4155 dated 9.5.02, for a sum of Rs.53,100/-, under the said agreement defendant no.2 is also liable for the proper performance of the terms and conditions of the same and is liable to fulfill the demands of the plaintiff .
5. It is also stated that the defendants approached to the plaintiff for availing finance facility for the purchase of motorcycle, maker of which is Hero Honda Passion, under the vehicle loan cum hypothication agreement no.B-4155 dated 9.5.02 for a sum of Rs.53,100/- and the plaintiff accordingly released the payment in favour of the defendant vide cheque no.226749 dated 21.6.2002 in favour of Himgiri Automobile Pvt. Ltd. At A-74 Main Road Kanti Nagar (Krishna Nagar) Delhi-51, the dealer for a sum of Rs.88,856/-. The said cheque was consolidated cheque and out of the said amount Rs.44,428/- as the consideration towards the motorcycle purchase by the defendants and said cheque was duly encashed by the dealer and the defendant no.1 received the product and the payment schedule under the said agreement was on the basis of the monthly installment of Rs.4425/- for 12 months. Defendant no.1 after paying certain installments failed to maintain the financial discipline and he stopped making payment in contravention of the terms and conditions of the agreement and rest of the installments of Rs.4425/- per month remained unpaid without any justification. It is also stated that the defendant no.1 has made the payment of Rs.26,125/- only under the said agreement.
6. Then plaintiff has further stated that during the subsistence of the said earlier undertaking the defendant no.2 along with defendant no.1 approached to the plaintiff and requested that since the defendant no.1 is in financial difficulty. So, he will not be able to pay the agreed installments to the plaintiff company and requested to refinance the remaining outstanding dues of Rs.27000/- on some lower monthly installments scheme and the defendant no.2 undertook to pay those installments on amended terms. It is further stated that in view of the request of the defendants the plaintiff agreed to Page No. 2 of 10 3 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
reschedule the payment scheme and a fresh loan cum hypothication guarantee agreement no.B8429 dated 18.4.03 for a sum of Rs.31830/- was agreed and executed between the plaintiff and the defendant no.2 for monthly installment of Rs.2655/- for 12 months the defendant no.1 being the actual hirer in the earlier agreement also offered collateral security promissory note for the proper performance for the agreement by the defendant no.2. Both the defendants also executed and offered the promissory note dated 11.8.03, as collateral security under the new agreement for outstanding balance. It is further stated that the defendant no.2 started repaying monthly installment. But, thereafter he started violating the terms and conditions of the agreement and once again he also stopped payment of the said installments.
7. The plaintiff has further stated that the defendants after making the payment of Rs.6000/- did not make further payment under the agreement no. B8429 dated 18.4.03 and failed to pay the remaining amount to the tune of Rs.31860/-, despite of repeated requests and reminders by the plaintiff and their employee/representative under the above said agreement.
8. The plaintiff has further stated that the plaintiff company has requested the defendants to clear the outstanding balance through their representatives and telephonic calls, but the defendants always kept on avoiding.
9. It is also stated that as the defendant has finally stopped making the payment of the installments in the month of March 2004 and thus the defendants have cheated the plaintiff.
10.The plaintiff has further stated that the plaintiff has sent a letter dated 11.10.04 to the defendants for the recovery of the outstanding amount to the tune of Rs.27480/-. The reply thereof was sent by the defendant no.2 on dated 21.10.04 and the defendant no.2 has concocted a false story therein and the plaintiff has stated that the defendants are liable to pay the outstanding as under :
Payment starting date 11.08.2003
Closing date 11.07.2004
Scheme
Rs.2655/- X 12 months Rs.31,860/-
(Including interest)
Payment received till 24.3.2004 Rs. 6,000/-
Balance due Rs.25,860/-
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4 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
Delay penalty @ Rs.20/- per day.
From 12.07.2004 up to 30.09.2004 Rs. 1,620/-
Total Rs.27,480/-
11.The plaintiff has further stated that the legal notice dated 3.3.05 for the recovery of the outstanding amount was also sent by the registered post on dated 4.3.05, but the defendants have failed to make the payment to the plaintiff and the defendant no.2 has given the reply thereof, on dated 15.3.05, with the false and frivolous story, instead of making payment of outstanding amount.
12.It is further stated that since the defendant no.2 has undertaken the liability of the defendant no.1, as mentioned in the earlier agreement by way of executing new agreement and the defendant no.1 has also offered collateral security by way of executing the promisary note dated 11.8.03 so both of the defendants are jointly and severally liable to pay the outstanding amount to the plaintiff.
13.Feeling aggrieved with the financial indiscipline of the defendants the plaintiff has filed the suit for recovery of Rs.27480/- along with interest @ 24% per annum in the ld. Trial court and the ld. Trial court was pleased to issue the summons to both of the defendants.
14.The defendant no.1 has filed the written statement and stated that he has purchased a motorcycle on dated 9.5.2002 and the vehicle was financed by the plaintiff and the defendant no.2 stood guarantor for the defendant no.1 and since the defendant no.1 was facing financial crisis, so he could pay only two installments and he has given the vehicle to the defendant no.2 who was guarantor of the defendant no.1 and defendant no.2 instead of handing over the vehicle to the plaintiff retained the same and started paying remaining installments. It is also stated by the defendant no.1 that on dated 3.1.03 he has written a letter to the plaintiff company and requested for transfer of the vehicle from the name of the defendant no.1. He has also stated that he has no concern with the plaintiff company. He has further stated that the plaintiff company has failed to give any "no objection certificate" to the defendant no.1 till date. He has further stated that the agreement no. B-8429 dated 18.4.03 was entered into between the plaintiff and the defendant no.2 and the defendant no.2 has undertaken to pay the remaining amount and the defendant no.1 has not given any guarantee for the defendant no.2. He has further stated that it is well written in the proposal form that no guarantor is required and he has called the pronote dated 11.8.03, forged and called the Page No. 4 of 10 5 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
suit of the plaintiff as false and frivolous.
15.Whereas the plaintiff has filed the replication to the written statement filed by the defendant no.1 and denied all the averments made in the written statement of the defendant no.1 and reiterated all the facts written in the plaint.
16.Whereas the defendant no.2 has filed the written statement, wherein he has raised the preliminary objection regarding the maintainability of the present suit and he has stated that the vehicle financed by the plaintiff company was handed over to Sh. Kanhaiya Lal and Sh. Raj Narayan Tyagi. The defendant no.2 has further admitted that a loan agreement was entered into by the defendant no.1 and the plaintiff. He has also admitted that the defendant no.1 requested to the plaintiff to cancel to the loan cum hypothication agreement no. B-4155. He has also admitted that the fresh loan agreement no. B-8429 dated 18.4.03 for a sum of Rs.31800/- was executed between him and the plaintiff. He has also admitted that the vehicle was financed to the defendant no.1 and he has agreed to pay instalment of Rs.2655/- each for 12 months. He has further stated that since he felt himself in difficulty to pay the installments, as agreed upon by him, so he contacted with the employees/representatives of the plaintiff company namely Sh. Kanhaiya Lal and Sh. Raj Narayan Tyagi. He has further stated that since the plaintiff has failed to disclose the registration number of the vehicle, so the suit of the plaintiff is not maintainable. He has further stated that the suit of the plaintiff is bad for misjoinder of the necessary party as the defendant no.1 is not necessary party in fact the official of the plaintiff company as per contract are guilty of committing offences u/s 420/406/34 of IPC and the officials of the plaintiff are well aware of the act and conduct of its representatives and the plaintiff company has failed to take any action against the said representative. He has further stated that he was asked to collect the receipt of the said vehicle (financed) handed over to the representatives of the plaintiff company and he has called the suit of the plaintiff as an abuse of the process of law and sought the rejection thereof u/o 7 rule 11 of CPC.
17.Replying to the plaint on merits he has admitted that the loan agreement was entered into between the plaintiff and the defendant no.1 but he has denied the liability. He has also admitted that he stood guarantor for the defendant no.1. He has also admitted that in view of the financial hardships faced by the defendant no.1. The defendant no.1 requested to cancel the loan-cum hypothication no. B4155. He has further admitted that a fresh loan agreement bearing no.B8429 dated 18.4.03 for an amount of Page No. 5 of 10 6 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
Rs.31800/- was executed between him and the plaintiff. He has also admitted that he was agree to pay the installments for 12 months of Rs. 2655/-. He has further stated that since he was also in some sort of difficulty to pay installments as agreed upon by him, so he contacted with the employees/representatives of the plaintiff/company, namely Sh. Kanhaiya Lal and Sh. Raj Narayan Tyagi and told about his financial hardships and the said representatives of the plaintiff company asked him to return the vehicle to the plaintiff company and accordingly he has handed over the vehicle (financed) to the representatives of the plaintiff company namely Sh. Kanhaiya Lal and Sh. Raj Narayan Tyagi, who asked him to collect the receipt of the surrender of the vehicle, (financed) but till date the said representatives neither handed over the receipt of the surrender of the vehicle nor returned vehicle and he has also stated that in view of the said circumstances the claim of the plaintiff to the tune of Rs.27480/- is not maintainable. Regarding the legal notice sent by the plaintiff, he has stated that since he is not living with his parents, for a long, so his mother namely Smt. Kamla might have received the notice dated 4.3.05. He has further stated that she did not deliver the same to him so the proper reply to the legal notice could not be sent. He has not denied the liability of the payment, if the vehicle would have been in his possession and sought the dismissal of the suit.
18.The plaintiff has filed the replication to the written statement filed by the defendant no.2 also and reiterated all the averments made in the plaint and denied all the averments mentioned in the written statement.
19.From the pleadings of the parties the ld. Trial court was pleased to frame the following issues:
1. Whether the plaintiff is entitled to a decree of Rs.27480/-.?OPP
2. Relief.
20.The plaintiff has examined two witnesses in order to prove it's case. Sh. Shyam Sunder officer (legal) Authorized Representative of the plaintiff company was examined as PW1 vide his affidavit EX.PW1/1 who has reiterated all the averments as mentioned in the plaint. Whereas Sh. Umesh Varshney was examined as PW2 vide his affidavit Ex.PW2/A and it is pertinent to mention here that both the defendants have failed to cross examine the PW1. Whereas the PW2 has been examined by the attorney of the defendant no.1 namely Sh. Kamal Jain, but in a casual manner. Neither the defendants have examined themselves nor they have resorted to examine any other Page No. 6 of 10 7 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
witnesses on their behalf and the ld. Trial court vide its judgment and decree dated 5.11.09 was pleased to decree the suit of the plaintiff for an amount of Rs.27480/- along with the interest at the rate of 6% per month from the date of institution till its realization.
21.Feeling aggrieved with the judgment and decree under appeal passed by the ld. Trial court, the appellant has preferred the present appeal.
22.The notices of the appeal were issued to the respondents who have put their appearance along with their respective counsels and the record of the trial court is also requisitioned and perused.
23.I have heard the ld. Counsel for the parties and perused the record.
24.The ld. Counsel for the appellant has submitted that the perusal of the statement of account of the plaintiff shows that the balance in account of the appellant was made nil by the plaintiff. so he does not own any liability to pay any amount to the respondent no.1. He has further submitted that since the loan agreement no.4155 was already canceled with the fresh loan agreement entered into between the plaintiff and the defendant no.2 so the defendant no.1/appellant owns no liability to repay the amount to the bank. He has further submitted that the perusal of the loan agreement no.B-8429 shows that no guarantor was required as written on the back of it, so the appellant is not liable to pay the decreetal amount to the plaintiff.
25.Whereas the ld. Counsel for the respondent no.1 has submitted that earlier the agreement no.4155 was entered into between the plaintiff and the defendant no.1, but as the defendant no.1 has shown his financial hardships to repay the amount of loan so a fresh agreement was entered into between the plaintiff and the defendant no.2 and the defendant no.2 has undertaken to pay the outstanding amount of the loan and both the defendants have executed a promissory note dated 11.8.09 EX.PW1/E jointly. He has further submitted that since the testimonies of the PW1 and PW2 have gone unrebutted, uncontroverted and unchallenged, as the defendants have failed to cross examine the PW1 and PW2 was cross examined by the AR of the defendant no.1 but the defendant no.2 has failed to cross examine this PW2 and both the defendants have failed to examine themselves in the present case so the ld. Trial court has rightly passed the judgment and decree under appeal.
26.Whereas the ld. Counsel for the respondent no.2 has submitted that since the vehicle financed was handed over to the employees/representatives of the plaintiff company so Page No. 7 of 10 8 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
the respondent no.2/defendant no.2 was not liable to pay any money to the plaintiff/respondent no.1. But on dated 9.8.10 none had come present on behalf of the respondent no.2 so he was proceeded exparte.
27.I have given thoughtful consideration to the submissions of the ld. Counsels for the parties and perused the record.
28.The perusal of the record shows that the appellant had taken the loan from the respondent no.1/plaintiff vide agreement no.4155 dated 9.5.2002, and the respondent no.2 stood guarantor for him, but since he failed to repay the amount of loan in view of the financial hardships, so, the defendant no.2 has entered into another agreement no. B-8429 dated 18.4.2003 with the plaintiff and undertaken to pay the remaining amount and the appellant/defendant no.1 stood guarantor for the defendant no.2/respondent no.2 and the appellant had executed joint promissory note with defendant no.2 of Rs. 31860/- and the same is there on the record of the trial court being Ex.PW1/E and from the testimony of the PW1 it is proved on record that the promissory note Ex.PW1/E was jointly executed by the appellant, as well as respondent no.2 and the ld. Counsel for the appellant has submitted that since the perusal of the agreement dated 18.4.2003 shows that no guarantor was required, so the appellant is not liable to pay even single penny to the respondent no.1/plaintiff. He has also submitted that since in the account of the appellant the balance was shown nil, so he is not liable to pay even a single penny to the respondent no.1/plaintiff. But I do not find any force in such submissions of the ld. Counsel for the appellant, because in the case in hand the appellant is liable for making the payment of the decreetal amount being guarantor of the respondent no.2 and as the ld. Counsel for the respondent no.1 has submitted that the zero balance was shown in the account of the appellant in view of the agreement no.B-8429 entered into between the plaintiff and the respondent no.2, and since the appellant stood guarantor and executed the promisery note dated 11.8.03 jointly with the respondent no.2 which is Ex.PW1/E. So, being guarantor of the borrower i.e. respondent no.2, he is equally liable to make the payment of the decreetal amount.
29.The averments made in the plaint by the plaintiff have not been categorically denied by both of the defendants. so they are deemed to have been admitted.
30.It is further pertinent to mention here that in the case in hand, the testimony of the PW1 and PW2 have gone unrebutted, uncontroverted and unchallenged as both of the Page No. 8 of 10 9 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
defendants have failed to cross examine the PW1 despite of availing opportunities, and PW2 was cross examined by the AR of the appellant/defendant no.1 and I have no ground to disbelieve the unrebutted, uncontroverted, unchallenged and unimpeached testimonies of these two witnesses.
31.The defendants have failed to examine themselves and since the defendants have failed to examine themselves in the trial court. So, in view of such abstainance from their examination in the trial court, the adverse inference is drawn against both of the defendants.
32.It is pertinent to mention here that the appellant has also filed an application u/o 41 rule 23-A of CPC and sought remanding of the present case to the ld. Trial court on the ground that the ld. Trial court has not framed proper issues and stated that it was necessary for the ld. Trial court to frame the following issues, for the just decision of the case:
A. Whether the agreement no.B4155 dated 9.5.02 came to an end after the fresh agreement no. B8429 dated 18.4.03.?
B. Whether the appellant is liable for any payment after agreement no. B8429 dated 18.4.03.
C. Whether the statement of account issued by the respondent no.1 (plaintiff) in original suit is wrong and fake.?
33.Whereas the ld. Counsel for the respondent no.1 replying to the application has vehemently opposed this application filed by the appellant and stated that no such issues were required to be framed by the ld. Trial court and since the respondent no.1/plaintiff has successfully discharged its burden of proving issue no.1. It is further stated in the reply that the application filed by the appellant is nothing but is an attempt to cause unnecessary delay and sought the dismissal of the application and appeal.
34.Since perusal of the record shows that the appellant/defendant no.1 has executed the promissory note Ex.PW1/E jointly with respondent no.2/defendant no.2 after execution of loan agreement no. B-8429 dated 18.4.2003. It is admitted and proved fact on the record that the loan agreement no. B-4155 dated 9.5.2002 has come to an end with the entrance of agreement no. B-8429 dated 18.4.2003. In the given circumstances, the liability of the appellant/defendant no.1 being borrower has ceased to exist. But, in view of the execution of joint promissory note Ex.PW1/E, he Page No. 9 of 10 10 Sh. Kamal Jain Vs. Satin Credit Care Network Ltd. & Anr.
cannot escape from his liability to pay the outstanding balance of loan as a guarantor of respondent no.2/defendant no.2. It is pertinent to mention here that the testimonies of the PW1 and PW2 have gone unrebutted, uncontroverted and unchallenged as the PW1 has not been cross examined by any of the defendants and PW2 has been cross examined by the AR of the appellant but his testimony also goes unimpeached and in view of the unimpeached uncontroverted testimonies of the PW1 and PW2 and failure on the part of the defendants to rebutt the testimonies of these two witnesses and abstainance by the defendants from examining themselves in the trial court and in view of the non specific denial of the averments made in the paint by the defendants I do not find any infirmity in the judgment and decree passed by the ld. Trial court. The application filed by the appellant for remanding the case to the trial court is nothing but is a misuse of the process of law and since it was incumbent on the part of the plaintiff to prove that it is entitled to a decree of Rs.27480/- along with the interest and such burden has been successfully discharged by the plaintiff, so the application filed by the appellant u/o 41 rule 23-A of CPC for remanding the case back to the trial court is false frivolous and baseless so the same stands dismissed.
35.In view of the above discussion the findings of the ld. Trial court on the issue no.1 stands confirmed. The judgment and decree passed by the ld. Trial court is upheld. The appeal of the appellant being false, frivolous and devoid of merit stands dismissed with cost of Rs.1000- to be given to the respondent no.1/plaintiff. Decree sheet be prepared accordingly. The parties are left to bear their costs. The record of the trial court be returned. File be consigned to the record room.
Pronounced in the open court.
Dated: 13.08.2010 (P.K. MATTO) Addl. District Judge, Karkardooma Courts, Delhi.
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