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Govind Chandra Biswal vs ) Parbati Rout @ Anusaya Rout (Niru) on 23 February, 2023

         IN THE COURT OF MS. CHETNA SINGH:
    ADDITIONAL DISTRICT JUDGE -06: SOUTH-EAST
       DISTRICT: SAKET COURTS: NEW DELHI

C.S. No.8858/16
CIS NO. DLSE01-001517-2016

Govind Chandra Biswal
S/o late Sh. Murlidhar Biswal
R/o 464, DDA Flats,
Badarpur Village, New Delhi-110044

                                                               ........Plaintiff

Versus

1) Parbati Rout @ Anusaya Rout (Niru)
W/o Niranjan Rout
M/o Sambeet Rout (Munu)
C/o Cable Pandit Ji House
Bhangad Chowk, Madanpur Khadar
Sarita Vihar, New Delhi-110076
Also at:
C/o Dibakar Behura
At Deula Sahi
P.O. Olavar, P.S. Raj Kanika,
Distt. Kendrapara, Odisha-754227
Also at:
Parbati Rout @ Anusaya Rout (Niru)
W/o Sh. Sambeet Rout (Muna)
250-A, Pocket-N, DDA Flats,
Sarita Vihar, New Delhi
Also at:
Parbati Rout @ Anusaya Rout (Niru)
Kaithapal, P.S. Dashipur
Via AUL, Distt. Kendrapara
Odisha-754219

2) Basant Kumar Samal
(Guarantor of defendant no.1)
F-II/122, Shiv Durga Vihar,

C.S No.8858/2016
Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.
                                                                       Page No. 1/7
 Lakkarpur, Faridabad, Haryana
Also at:
Basant Kumar Samal
S/o late Sh. Jadumani Samal
R/o At sobala, P.O. Gagua,
Distt. Kendrapara, Odisha-754214

                                                                 .......Defendants


Date of institution of case                                    : 02.05.2016
Date of judgment reserved                                      : 23.02.2023
Date of judgment pronounced                                    : 23.02.2023



SUIT UNDER ORDER XXXVII OF CPC FOR RECOVERY
 OF THE AMOUNT OF RS. 3,65,000/- (RUPEES THREE
     LAKHS AND SIXTY FIVE THOUSAND ONLY)
    ALONGWITH PENDENTELITE AND FUTURE
                  INTEREST

                       EX PARTE J U D G M E N T


1.

The present suit was filed by the plaintiff under Order XXXVII of CPC for recovery of amount of Rs. 3,65,000/- alongwith pendente lite and future interest.

2. It was stated that the plaintiff was approached by the defendant no.1 in the year 2011 for a loan of Rs. 3,65,000/- for building a house at her native place in Odisha and defendant no.2 became a guarantor to the said loan amount. The plaintiff was assured that the amount shall be returned within a period of six months in two installments. The plaintiff being a distant relative of the defendant no.1 handed over a sum of Rs.3,65,000/- in the C.S No.8858/2016 Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.

presence of a few persons and a pronote dated 10.09.2013 was also executed in this regard. After one year i.e. on 17.09.2014, the plaintiff demanded the said amount from defendant no.1 in presence of defendant no.2 but the defendant no.1 showed her inability to repay the said loan and thus, the defendant no.2 issued a guarantee letter wherein, he himself assured that if defendant no.1 fails to repay the amount taken, the defendant no.2 will pay the said amount to the plaintiff and a guarantee bond/letter was executed by the defendant no.2.

3. However, on repeated demands, either defendant no.1 or defendant no.2 failed to repay the said amount and accordingly, legal notice dated 05.04.2016 was issued demanding the outstanding amount but, no payment was made. Hence, the present suit was filed.

4. Both the defendants filed their appearance on 09.09.2016 and 01.10.2016 respectively. Thereafter, leave to defend application was filed on behalf of both the defendants separately and application of defendant no.1 was allowed and unconditional leave to defend was granted to defendant no.1 vide order dated 30.10.2018. Despite grant of unconditional leave to defend, written statement was not filed by the defendant no.1 and defendant no.1 was proceeded ex-parte vide order dated 27.02.2019.

5. Defendant no.2 was given opportunity to advance arguments on his application for leave to defend. However, no C.S No.8858/2016 Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.

arguments were advanced on the said application and his application for leave to defend could not be disposed of as he was proceeded ex-parte on 19.09.2019.

6. Thereafter, ex-parte plaintiff's evidence was led by the plaintiff wherein he examined himself as PW1 and relied upon the following documents:-

i) Ex. PW-1/1 is pro-note/promissory note with translation copy from language of Oriya to Hindi.

ii) Ex. PW-1/2 is Guarantee Bond/ letter.

iii) Mark PW-1/3 (colly) are copy of legal notice dated 05.04.2016 and 19.04.2016.

iv) Mark PW-1/4 is copy of legal notice dated 05.04.2016.

v) Ex. PW-1/5 (colly) are postal receipts of legal notice.

vi) Ex. PW-1/6 (colly) are courier receipts of legal notice.

vii) Ex. PW-1/7 (colly) are returning envelopes of legal notice.

viii) Ex. PW-1/8 (colly) are tracking report of the legal notice.

ix) Ex. PW-1/ 9 (colly) are tracking report of courier.

x) Ex. PW-1/10 is complaint dated 29.03.2016.

xi) Mark PW-1/11 is translation copy from language of Oriya to Hindi.

xii) Mark PW-1/12 is copy of reminder letter dated 12.01.2016 including translated copy from language of Oriya to Hindi.

7. Plaintiff also examined PW2 Sh. Bata Krishan Swain as one of the attesting witnesses to the pronote who relied upon his affidavit Ex. PW2/A and proved his signatures at point A on Ex. PW1/1 being the Pronote/Promissory Note.

Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.

8. Plaintiff also examined PW3 Sh. Nirmal Kumar Mohanty as the second attesting witness to the pronote who relied upon his affidavit Ex. PW3/A and proved his signatures at point B on Ex. PW1/1 being the Pronote/Promissory Note. Ex- parte plaintiff's evidence was closed on 16.03.2022.

9. Ex-parte final arguments advanced. Record perused.

10. The plaintiff primarily relies upon the Promissory Note Ex. PW1/1 bearing his signatures and upon the guarantee bond Ex. PW1/2. Both the documents are in Oryia language however, the translated copy of the same is Mark PW1/11 and Mark PW1/12.

11. I have perused the leave to defend applications filed by the defendants on record wherein they denied the loaned amount. Defendant no.1 stated that the documents placed on record by the plaintiff are forged. However, despite grant of unconditional leave to defend, neither the defendant no.1 nor the defendant no.2 chose to defend the suit or to put forward their defence with regard to the forgery of promissory note or the guarantee bond.

12. Per contra, the plaintiff has placed on record the original promissory note signed by him and the other attesting witnesses. The plaintiff has further examined the attesting witnesses as PW2 and PW3. The said attesting witnesses have C.S No.8858/2016 Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.

identified their signatures on Ex. PW1/1 at point A and point B. Legal notices were also issued by the plaintiff. No reply to the legal notices was received. The plaintiff has placed on record the document Ex. PW1/3 to Ex. PW1/9 as a proof of service of said legal notices. Further, the suit of the plaintiff is within limitation. Since the defendant no.2 stood as a guarantor to the loaned amount, he is also liable to pay the outstanding sum. Accordingly, the plaintiff has been able to prove his case beyond preponderance of probabilities. The case of the plaintiff is supported by the documents as well as by testimonies of attesting witnesses of the said documents. The grant of loan has been proved by way of oral testimony of the plaintiff and the same is supported by the documents on record. In view of the above discussion, the plaintiff becomes entitled to a decree for recovery of Rs.3,65,000/- and both defendants are jointly and severally liable to pay the suit amount alongwith interest.

13. The plaintiff is claiming interest @ 18% per annum which is clearly exorbitant as per the prevailing rates of interest in the commercial market. There is no written document/agreement with regard to interest in respect of said loan amount. As there is no document/agreement with regard to interest, interest @ 7% per annum on the principal amount (Rs.3,65,000/-), would suffice ends of justice, as per prevailing commercial market rate. Hence, the suit of the plaintiff is decreed for sum of Rs.3,65,000/- alongwith pendente lite and future interest @ 7% per annum from the date of filing of the suit till the date of actual realization. Costs of the suit are also awarded in C.S No.8858/2016 Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.

favour of the plaintiff. Both the defendants are jointly and severally liable to make the payment of decreetal amount.

14. Decree sheet be prepared accordingly. File be consigned to record room.

Announced in Open Court                        (CHETNA SINGH)
On 23.02.2023                                  ADJ-06 (South East)
                                           SAKET COURT:NEW DELHI




C.S No.8858/2016

Govind Chandra Biswal vs. Parbati Rout @ Anusaya Rout & Anr.