Delhi District Court
Unknown vs Sh. Watsalya Kumar Singh on 9 February, 2021
IN THE COURT OF SHRI MAN MOHAN SHARMA, DISTRICT
JUDGE (COMMERCIAL COURT)06, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
IN THE MATTER OF :
CS (Commercial) No. 1318/2019
State Bank of India A body corporate
constituted under the provisions of
The State Bank of India, 1955 (23 of 1955)
and the successor to State Bank of
Hyderabad under the Acquisition of
State Bank of India Act, 1955 (23 of 1955)
a body corporate constituted under
the State Bank of India Act, 1955
having its Central Office at Madame
Cama Road, Nariman Point,
Mumbai400021, and one of its
Local Head Office (s) & Zonal Office (s)
at Parliament Street, New Delhi
and One of its Stressed Assets Recovery
BranchII, SBI House, Fourth Floor,
18/4, Arya Samaj Road, Karol Bagh, New Delhi
through its Chief Manager ......Plaintiff.
VERSUS
1. Sh. Watsalya Kumar Singh
H. No. 312, Ground Floor,
Sector1, Vasundhara
Ghaziabad201012 (UP)
Also at
No. D13, Sector5,
Parivahan Apartment
CS (Comm.) No. 1318/2019. Page 1 of 15
Vasundhara, Ghaziabad UP201012
2. Smt. Kanchan Singh
W/o Sh. Watsalya Kumar Singh
H. No. 312, Ground Floor,
Sector 1, Vasundhara
Ghaziabad201012 (UP)
Also at
No. D13, Sector5,
Parivahan Apartment
Vasundhara, Ghaziabad UP 201012
3. Ms Amrapali Dream Valley Pvt. Ltd.
307, 3rd Floor, Nipun Towers,
Plot no. 15, Community Centre,
Karkardooma, Delhi110092
Through its Chairman/Authorized
Signatory .......Defendants
Date of Institution : 26.07.2019
Date of Reserving : 09.02.2021
Date of Judgment : 09.02.2021
JUDGMENT
1. The plaintiff has instituted a suit for recovery of ₹18,86,549.40p (Rupees Eighteen Lakh Eighty Six Thousand Five Hundred Forty Nine and Forty paisa only) against the defendant on 26.07.2019.
Plaintiff's Case
2. Briefly stated the case of the plaintiff is that it is a body corporate under The State Bank of India, 1955. The suit has been instituted CS (Comm.) No. 1318/2019. Page 2 of 15 through its authorized representative Shri Sandeep Issar.
3. The defendant nos. 1 and 2 approached the plaintiff for grant of a housing loan for purchase of proposed flat Unit no. C21201, 12 th Floor, 2BHK, Group Housing Project namely "Amrapali Leisure Park" plot no. GH01, SectorTech Zone IV, Greater Noida, Distt. G. B. Nagar (IP) to be developed by defendant no.3. The loan was repayable in 204 equated monthly installments of Rs.26,611/ (Rupees Twenty Six Thousand Six Hundred Eleven only) and duly secured by the proposed equitable mortgage of the said flat and other security documents including Tripartite Agreement dated 26.02.2015, whereby it has been agreed that in case of default on part of defendant nos. 1 and 3, the defendant no. 3 will pay the loan amount along with interest and cost to the plaintiff.
4. The plaintiff acceded to the request of the defendants and defendant nos. 1 and 2 for valuable consideration executed following security documents:
(a). Agreement of Housing Loan dated 26.02.2015 for Rs.24,75,000/ (Rupees Twenty Four Lakh Seventy Five Thousand only).
(b). Agreement to Mortgage dated 26.02.2015.
(c). Affidavit dated 26.02.2015.
(d). Undertaking dated 26.02.2015
(e). Letter dated 26.02.2015 of the defendant nos. 1 and 2 to plaintiff authorizing it, to release the loan amount directly to CS (Comm.) No. 1318/2019. Page 3 of 15 defendant no.3.
(f). Tripartite Agreement dated 26.02.2015 executed among the plaintiff, defendant nos. 1 and 2.
(g). Undertaking dated 25.02.2015 of defendant no. 3 to pay interest during the moratorium period.
(h). NOC dated 08.04.2015 issued by Bank of Maharashtra vacating the charge from the mortgage property.
5. The defendants did not adhere to financial discipline and did not care to pay the monthly installments nor submitted the Lease Deed after execution of same for creation of a mortgage. The defendant no. 3 was under obligation to complete the construction of flat with 36 months + 6 months, from the date of foundation/allotment and to hand over the possession to defendants no. 1 and 2 as well as to execute the sublease deed and to deposit the same with plaintiff, which it failed.
6. It has been pleaded that the defendants are jointly and severally, and also coextensively and individually liable to pay in their respective capacity as per the Tripartite Agreement.
7. The plaintiff has prayed that the suit be decreed in the sum of ₹18,86,549.40 (Rupees Eighteen Lakh Eighty Six Thousand Five Hundred Forty Nine and Forty paisa) from 01.05.2017 to 15.07.2019. Cost of the suit has also been prayed for.
Service of the Defendants and Court Proceedings
8. The process had been sent to defendants. Recourse had to be taken CS (Comm.) No. 1318/2019. Page 4 of 15 to serve the defendants through substituted means. The defendants had been served through publication in the newspaper "The Statesman" issue dated 14.01.2020 as recorded in the minutes of proceedings dated 28.09.2020.
9. Despite service the defendants neither caused their appearance nor filed their Written Statement. On the expiry of 120 days from the date of service viz. 14.01.2020 the defendants had forfeited their right to file a Written Statement.
10.On 12.11.2020 the case has been posted for plaintiff's evidence for 17.12.2020
11.No adverse order had been passed against the defendants notwithstanding their absence. PW1 had been examined on 18.12.2020. The defendants did not join the proceedings on that day. Had they appeared they would have rightfully availed the opportunity to cross examine the said witness, of course without putting forth their defence. Thus, they forfeited their rights by non appearance, nonfiling of written statement etc. and they did not present themselves before the Court to seek any such right.
12.PE was closed on 18.12.2020. Final arguments were concluded on 09.02.2021. None appeared on behalf of the defendants to address the final arguments as well.
Plaintiff's Evidence
13.In its evidence, the plaintiff has examined only one witness i.e. Sh.
Sandeep Issar, its Authorized Representative, as PW1.
CS (Comm.) No. 1318/2019. Page 5 of 1514.PW1 tendered his oral evidence contained in affidavit Ex.PW1/A He tendered the following documents in evidence: Documents Exhibits Copy of Gazette Notification dated Ex.PW1/1 22.02.2017 Copy of Gazette Notification dated Ex. PW1/2 27.03.1987 Loan application dated 27.01.2015 Ex.PW1/3 Sanction Letter dated 26.02.2015 Ex.PW1/4 Supplement Note dated 26.02.2015 Ex.PW1/5 Agreement of Housing Loan dated Ex.PW1/6 26.02.2015 Agreement to Mortgage dated 26.02.2015 Ex.PW1/7 Affidavit dated 26.02.2018 Ex.PW1/8 Undertaking dated 26.02.2015 Ex.PW1/9 Letter dated 26.02.2015 Ex. PW1/10 Tripartite Agreement dated 26.02.2015 Ex.PW1/11 Undertaking dated 25.02.2015 Ex.PW1/12 NOC dated 08.04.2015 Ex.PW1/13 Allotment cum Flat Buyer Agreement Ex.PW1/14 dated 12.12.2014 Demand draft dated 25.02.2015 Ex.PW1/15 No Objection Certificate issued by Ex.PW1/16 defendant no. 3 Statement of account dated 13.04.2018 Ex.PW1/17 Copy of legal notice dated 23.10.2018 Ex.PW1/18 alongwith postal receipts CS (Comm.) No. 1318/2019. Page 6 of 15
15.The plaintiff evidence has been closed on 18.12.2020.
16.There is no defence statement or defence evidence.
Arguments
17.I have heard the submissions advanced by Sh. S. K. Tyagi, ld.
counsel for the plaintiff.
18.Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(1)(c)
(i) and other applicable provisions of the Commercial Courts Act, 2015.
19.The plaintiff is a statutory bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business. The testimony of the plaintiff's witness has remained unchallenged and unimpugned as the defendant has not come forward to defend the suit despite being duly served. The suit is within the limitation. There is no legal impediment that the suit cannot be decreed in favour of the plaintiff.
20.The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
21. On a meaningful reading of the plaint, the suit is apparently within CS (Comm.) No. 1318/2019. Page 7 of 15 the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2 (1) (c) (i) of the Act.
22.I have considered the law laid down in State Bank of India vs Kashmir Art Printing Press, Sirsa AIR 1981 P H 188, 1983 54 Comp Cas 56 P H). I have also gone through the judgments passed by the Hon'ble High Court of Delhi in State Bank of India vs Earnest Traders Exporters 1997 IIIAD Delhi 467, 67 (1997) DLT 218, 1997 (41) DRJ 659 and in State Bank of India vs Indian Utility Products and Ors. AIR 2001 Delhi 30. I have considered the judgment of Mahanagar Telephone Nigam Ltd. vs Bharat Bhushan Sharma passed by Hon'ble High Court of Delhi on 6 December, 2010 in RFA No. 343/2001. These judgments consider the position of the plaintiff bank under the State Bank of India Act, 1955 and the institution of suit by its officials, their authority as such and the verification of plaints and pleadings by them. This applies to the subsidiaries of the State Bank of India as well.
23.It is the settled position that State Bank of India and its subsidiaries are a creation of a special statute and is thus entitled to the special status as provided under the State Bank of India Act, 1955. Thus, various notifications published in the Gazette of India do not require any formal proof and a judicial notice of the same can be taken under section 57 of the Indian Evidence Act, 1872. In light of CS (Comm.) No. 1318/2019. Page 8 of 15 this, the instant suit has been validly instituted. The plaint has also been supported with a State of Truth subsequently. Thus there is compliance of Order VI Rule 15A of the Code of Civil Procedure as well.
24.The summons which has been sent to the defendant in this case have been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendants have not come forward to contest the suit and have not joined the proceedings, the plaintiff is still liable to prove its case on preponderance of probabilities.
25.PW 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for the plaintiff has placed strong reliance on judgment passed on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The judgment of Hon'ble High Court of Delhi in ICICI Bank Ltd. vs. Sunil Sharma passed in RFA 340/2015 on 31.01.2018 in which the pronouncement has been made regarding appreciation of documentary evidence in cases of public financial institution, appreciation/certification of electronic evidence etc. is also applicable in the facts and circumstances of CS (Comm.) No. 1318/2019. Page 9 of 15 this case.
26.The sum and substance of the facts of this case are similarly placed as the facts in the above judgments.
27.PW1 has tendered in evidence a gazette notification dated 22.02.2016 as Ex. PW1/1 and another notification dated 27.03.2017 as Ex. PW1/2. These are in public domain and under section 57 of the Evidence Act, 1872 a judicial notice of the same has been taken. The authority to sue on behalf of the plaintiff has been stated them as well as the other incidental and ancillary powers.
28.One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.
29. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a due notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship. I am also supported by the judgments of our own High Court in the case of Kamini Sharma (supra) and Sunil Sharma (supra) on this aspect.
30.A civil case proceeds on the doctrine of preponderance of CS (Comm.) No. 1318/2019. Page 10 of 15 probabilities and not on proof beyond reasonable doubt. There is no denying the fact that nonappearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his nonappearance, and the Court cannot speculate into the reasons for his nonappearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of preponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
31.The plaintiff has proved on record that the defendants had applied for a housing loan and the applications are Ex. PW1/3. The sanction letter is Ex. PW1/4 and the Supplementary Note is Ex. PW1/5. The Loan agreement is Ex. PW1/6, while the agreement to mortgage is Ex. PW1/7. Ex. PW1/8 is the Affidavit and Ex. PW1/9 is the Undertaking executed by the defendants. Ex. PW1/10 is the letter of the release of Housing loan.
32.The tripartite agreement for housing loan is Ex. PW1/11 in which M/S Amrapali Leisure Valley Developers Pvt. Ltd. is also a party. Ex. PW1/12 and Ex. PW1/13 are the communications exchanged CS (Comm.) No. 1318/2019. Page 11 of 15 between M/S Amrapali Leisure Valley Developers Pvt. Ltd. and the plaintiff.
33.Ex. PW1/14 is the Allotment cum Flat Buyer Agreement between the defendants and M/S Amrapali Leisure Valley Developers Pvt. Ltd. Ex. PW1/15 is the payment demand from M/S Amrapali Leisure Valley Developers Pvt. Ltd. addressed to the defendants. Ex. PW1/16 is the NOC issued by M/S Amrapali Leisure Valley Developers Pvt. Ltd.
34.Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendants had approached the plaintiff bank for disbursement of loan. The bank acceded to the request and consequent upon the same the defendants executed various loan documents. The defendants failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/17, maintained by the plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
35.These documents prove the factum of the defendants applying to the plaintiff for grant of a loan facility to purchase a flat being constructed by M/S Amrapali Leisure Valley Developers Pvt. Ltd. There plaintiff accepted the request and sanctioned a term loan.
CS (Comm.) No. 1318/2019. Page 12 of 15The first payment was released on 26.02.2015 by the plaintiff. The defendants made various payment till 31.03.2017. On no further payment received the account became irregular. The plaintiff has also served a notice dated 23.10.2018 vide Ex. PW1/18 (Colly) upon the defendants calling upon them to clear the outstanding in his account. These notices were put in postal transmission on 27.10.2018. However, the defendants did not comply with the same. Due to noncompliance of its terms on the part of the defendants, the plaintiff took legal recourse by filing the instant suit for recovery on 25.07.2019.
36.The loan has been disbursed by the plaintiff to the defendants on 26.02.2015. Various payment were made by the defendant and the last payment was received by the plaintiff on 31.03.2017 during the currency of limitation. The suit has been instituted on 25.07.2019 and the same is therefore within the prescribed period of limitation.
37.The plaintiff has claimed the suit amount, the components of which have been stated in para 12 of the plaint as under:
Particulars Amount ₹
Principal outstanding 15,51,241.52
Interest from 01.05.2017 to 15.07.2019 3,35,307.88
Total 18,86,549.40
38. The plaintiff is entitled to the outstanding principal and pendentelite and future interest. The same flow from the contractual relationship as per the terms and conditions settled and part forming of the loan documents.
CS (Comm.) No. 1318/2019. Page 13 of 1539.The plaintiff has claimed pendentelite and future interest w.e.f. 16.07.2019 @ 8.75% per annum. The plaintiff is entitled to same as it is reasonable and in consonance with the contemporary banking and economic milieu, risk factors involved and other attendant circumstances. However, the entitlement shall commence from the date of institution of suit viz. 25.07.2019.
40.The interest accrued from the date of suit till the date of decree shall stand capitalized in the principal sum/suit amount. The plaintiff shall be liable to pay the deficient court fee accordingly.
41.Thus, the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
42.The suit of the plaintiff is decreed in the sum of ₹ 18,86,549.40 (Rupees Eighteen Lakhs Eighty Six Thousand Five Hundred Forty Nine and paise Forty only) with simple interest @ 8.75% per annum from the date of the institution of the suit i.e. 25.07.2019 till realization of the entire amount. The interest accrued from the date of suit viz. 25.07.2019 till the date of decree viz. 09.02.2021 shall stand capitalized in the principal sum/suit amount. The plaintiff shall be liable to pay the further court fee accordingly.
43.The plaintiff shall be entitled to the costs of the suits as well as per the rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.
CS (Comm.) No. 1318/2019. Page 14 of 1544.Balance Court Fee be deposited by the plaintiff within 30 days of the passing of this judgment. Thereafter the decree shall be drawn accordingly.
Copy of the Judgment
45.In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended uptodate by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
46.This judgment be also uploaded on the website of the Delhi District Court forthwith.
47.File be consigned to the Record Room. Digitally signed
by MANMOHAN
MANMOHAN SHARMA
Announced in the open court SHARMA Date:
2021.02.19
on 09.02.2021
18:23:26 +0530
(Man Mohan Sharma)
District Judge (Commercial Court)06
Central District, Tis Hazari Courts,Delhi
CS (Comm.) No. 1318/2019. Page 15 of 15