Delhi District Court
And Branch Office At vs Sandeep Joshi on 18 September, 2010
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL DISTRICT JUDGE12 (CENTRAL), DELHI. Civil Suit no.: 375/09 Unique case ID no. : 02401C0145442009 HDFC Bank Limited A Banking Company Incorporated and Registered under the Companies Act 1956 Having its registered office at : HDFC Bank House, Senapati Bapat Marg, Lower Parel (West), Mumbai400013 And Branch Office at: HDFC Bank Ltd. 2nd Floor, Indian Express Building Bahadursah Zafar Marg, New Delhi through its authorized representatives Mr. Gaurav Lakhanpal. ...............Plaintiff Versus Sandeep Joshi B13 Third Floor Jagatpuri Delhi110051. .........Defendant Date of institution of the suit : 08.04.2009 Reserved for judgment U/O 12 Rule 6 CPC : 18.09.2010 Date of pronouncement of judgment U/O 12 Rule 6 CPC: 18.09.2010 Civil Suit no. : 375/09 Page 1 of 16 SUIT FOR RECOVERY UNDER ORDER XXXVII OF CPC JUDGMENT
1 The present suit is of recovery for a sum of Rs. 3,02,463.05 along with interest and cost thereon has been filed on behalf of plaintiff against the defendant under the provisions of Order 37 CPC.
2 Brief of the facts as set out in the plaint are :
(a) The plaintiff is a banking company
incorporated and registered under the
Companies Act, 1956;
(b) Mr. Gaurav Lakhanpal is presently posted
as one of the principal officers of the plaintiff who is fully conversant with the facts of the case as per records and books of the plaintiff maintained in the usual and ordinary course of business. He is duly authorized, empowered and competent to sign and verify the pleadings for and on behalf of the plaintiff;
(c) The defendant is a borrower who Civil Suit no. : 375/09 Page 2 of 16 approached and requested the plaintiff for grant of an overdraft facility of Rs. 2,10,400/ for a period of 12 months. The said overdraft facility was against the vehicle namely "Indica" car. The defendant executed an overdraft facility agreement with the plaintiff;
(d ) The plaintiff sanctioned and disbursed an amount of Rs. 2,10,400/ to the defendant in terms of overdraft agreement no.
01932850000388 entered into between the parties. The defendant also executed demand promissory note and irrevocable power of attorney in favour of the plaintiff on 20.1.2007. The said overdraft facility was subject to the terms and conditions of the abovesaid documents;
(e) As per the said overdraft agreement, the vehicle was got duly hypothecated in the name of the plaintiff which is registered with the registration authority bearing registration no. Civil Suit no. : 375/09 Page 3 of 16 DL08CM1005;
(f) Pursuant to the receipt of the overdraft amount, the defendant had used the said account and failed to adhere to the financial discipline of the repayment of the said overdraft either towards principal or interest or charges thereon. Several cheques till date issued by the defendant for the repayment were dishonoured/returned back unpaid by the banker of the defendant. The defendant was served with reminders to pay the amount. Persistent requests were made by the officials of the plaintiff to the defendant to abide by the terms of the agreement but the defendant failed to honour his commitments. The defendant further failed to make the vehicle available for inspection to the officials of the plaintiff in consonance with the agreement entered between the parties;
(g) Till date the defendant has defaulted in repayment of the amount and the overdraft Civil Suit no. : 375/09 Page 4 of 16 agreement has elapsed by efflux of time;
(h) The plaintiff finally decided to withdraw the overdraft facility by notice dated 13.3.2009. Despite receipt of the notice, the defendant neither cared to reply to the notice nor has made any effort to repay the outstanding amount and also to handover the peaceful possession of the vehicle; and
(i) It is further stated by the plaintiff that as per accounts maintained by the plaintiff, the defendant is liable to pay a sum of Rs.
3,02,463.05 towards principal, interest, penal interest and other dues.
3 Upon filing of the present suit, summons for appearance under Order 37 CPC were issued to the defendants. On 12.8.2009, an application for putting appearance was filed on behalf of the defendant. Thereafter, on 18.9.2009 an application under Order 37 Rule 3 Sub Rule 4 of CPC for summons for judgment was filed by the plaintiff. Summons for judgment were issued to the defendant. On 04.12.2009, an application under Order 37 Rule 3 (5) CPC for leave Civil Suit no. : 375/09 Page 5 of 16 to defend was moved on behalf of the defendant and by order dated 21.1.2010, leave to defend application moved by the defendant was allowed and defendant was directed to file written statement. 4 Written statement filed by the defendant where it is stated that the defendant has never got opened an OD account from the plaintiff. It is stated that the defendant had only asked for personal loan. It is admitted that a loan amount of Rs. 1,30,500/ was disbursed by the plaintiff to the defendant. It is stated that the plaintiff has forged signatures of the defendant on agreement, schedule, irrevocable power of attorney, letter of continuity and demand promissory note. Rest of the contents of the plaint have been denied by the defendant in his written statement.
5 On 15.9.2010 statement of the defendant under Order 10 CPC was recorded by this court wherein also, it is admitted by the defendant that he had obtained a personal loan of Rs. 1,30,500/ in January, 2007 and had not repaid even a single penny to the plaintiff. 6 In these circumstances, this court on its own motion fixed this case for arguments on admissions made by the defendant in his written statement as well as during his statement under Order 10 CPC. This case was fixed for arguments under Order 12 Rule 6 Civil Suit no. : 375/09 Page 6 of 16 CPC. In these circumstances, in the considered opinion of this court, this case is being decided on the admissions made by the parties. 7 In a judgment 155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra v. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission Rule 6.(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whether a judgment is pronounced under Subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment Civil Suit no. : 375/09 Page 7 of 16 was pronounced."
8. The scope and ambit of Order 12 Rule 6, CPC was discussed by the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v.
Union Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the supreme Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'. We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it Civil Suit no. : 375/09 Page 8 of 16 should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
9. In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6, CPC by holding as below:
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
10. Another Division Bench of this Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6, CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Civil Suit no. : 375/09 Page 9 of 16 Anr., reported as 119 (2005) DLT 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in controversy. Any admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein............."
8 In another case No. : RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided on July 12 2007, it was observed by our own Hon'ble High Civil Suit no. : 375/09 Page 10 of 16 Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case".
9 Now I have to discuss the facts of the case in view of the law discussed herein. Along with the suit, the plaintiff filed undated agreement though along with this agreement, there is schedule which bears the date of 20.1.2007. It is stated that this schedule was signed by the defendant. During admission/denial of documents, the defendant has denied the execution of these documents. I have carefully perused these documents. In schedule at serial no. 8 the Civil Suit no. : 375/09 Page 11 of 16 contents of the hypothecated asset has to be mentioned and the same is blank. At serial no. 9, the asset details have been given. Column 9 does not suggest that the asset mentioned in this column is hypothecated asset. To make clarification of this column, agreement is perused. In agreement, there is no separate mention about any asset hypothecated with the plaintiff by the defendant. There is another document which is irrevocable power of attorney wherein it is stated that the defendant has given this irrevocable power of attorney to the plaintiff for the vehicle stated to be hypothecated with the plaintiff. This document bears the date 20.1.2007 though stamp of treasury on special adhesive is of dated 27.12.2006. This document bears the stamp of Notary Public, Delhi. However, no date of attestation by the Notary Public has been there. In these circumstances, presumption according to Section 85 of Indian Evidence Act is not available to the plaintiff. Similarly, letter of continuity and demand promissory note are also stated to be executed by the defendant on 20.1.2007. Defendant has denied these documents. The demand promissory note is of Rs. 2,10,400/ of dated 20.1.2007. Statement of account filed by the plaintiff wherein it is reflected that on 03.1.2007, a loan of Rs. 1,30,500/ was disbursed by the plaintiff. On the other hand, there is Civil Suit no. : 375/09 Page 12 of 16 no entry in the statement of account maintained by the plaintiff of dated 20.1.2007. Even no entry is there for disbursement of loan of Rs. 2,10,400/. Thus, the documents of the plaintiff filed along with the suit do not fortify the case put by the plaintiff before this court. The statement of account has been duly certified under the Banker's Books of Evidence Act by the plaintiff. Therefore, it is not available to the plaintiff to dispute this document but this document does not prove the other documents filed by the plaintiff. Therefore, agreement along with schedule, irrevocable power of attorney, letter of continuity and demand promissory note, as filed by the plaintiff, cannot be accepted as the defendant has already denied these documents. Moreover, the date of execution of these documents does not telly with the entries made in the statement of account filed by the plaintiff. In these circumstances, agreement, irrevocable power of attorney, letter of continuity and demand promissory note are not going to help or prove the case of the plaintiff.
However, in the written statement, it is admitted case of the defendant that the defendant had taken a personal loan of Rs. 1,30,500/. It is stated that the agent of the defendant got signatures of the defendant on the application form, blank cheques and rent Civil Suit no. : 375/09 Page 13 of 16 agreement. It is also admitted case of the defendant that the agent gave to the defendant a cheque of Rs. 1,30,500/. In the statement given before this court on 15.9.2010, it is also admitted by the defendant that he had obtained a personal loan of Rs. 1,30,500/ in January, 2007 from the plaintiff. This statement is also corroborated with the statement of account filed by the plaintiff. Therefore, I am of the considered opinion that the defendant took a personal loan of Rs. 1,30,500/ from the plaintiff and the case of the plaintiff that it had granted overdraft facility for Rs. 2,10,400/ does not inspire confidence inasmuch as the documents filed by the plaintiff itself contradict the case of the plaintiff.
10 In view of the observations made hereinabove, the plaintiff is entitled for Rs. 1,30,500/ as the principal amount from the defendant. 11 Now the question arises whether the plaintiff is entitled for interest on this amount. During the course of arguments, it is submitted by ld. counsel for the defendant that the defendant is not liable to pay interest on this amount as there was no agreement for interest. It is the admitted case of the defendant in the written statement that the defendant had signed few blank documents. It is admitted case of the defendant that the agent of the plaintiff got his Civil Suit no. : 375/09 Page 14 of 16 signature on few blank documents and thereafter, a cheque for the loan amount was given to the defendant. Therefore, the defendant was conscious to the fact that he is going to enter some financial transaction with the plaintiff. It is also very well within the knowledge of the defendant that he was going to obtain the personal loan from the plaintiff and for that he had to pay the interest. It is not the case of the defendant that the plaintiff had given this loan without any consideration. It was also well within the knowledge of the defendant that the plaintiff is a financial institution which carries on business pertaining to the finance. In these circumstances, the plaintiff was well aware that for any finance facility, he is going to avail, he has to pay the consideration thereof. The said consideration is nothing else but only the interest. In these circumstances, this court is of the view that the defendant is liable to pay interest on the principal amount. But this court is not going to rely upon the documents regarding the interest, as filed by the plaintiff as the date of execution of these documents, does not telly with the entry upon the statement of account.
12 In my considered opinion and keeping in view the prevailing rate of interest in the nationalized banks, the plaintiff is entitled for Civil Suit no. : 375/09 Page 15 of 16 interest @ 10% per annum on the principal amount from 03.1.2007 i.e. the date for loan as mentioned in the statement of account, till realization. Plaintiff is also entitled cost of the suit proportionately. 13 Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 18.09.2010 (Jitendra Kumar Mishra) ADJ (Central)12, Delhi Civil Suit no. : 375/09 Page 16 of 16 C.S. No.: 375/09 18.09.2010 Present Ms. Chetna Bhalla, counsel for the plaintiff.
Sh. Narender Mukhi, counsel for the defendant along with defendant in person.
Arguments heard.
Now to come up for orders under Order 12 Rule 6 CPC at 4.00 p.m. (Jitendra Kumar Mishra) ADJ (Central)12, Delhi 18.09.2010 rk 18.09.2010 (4.30 p.m.) Present None.
By separate judgment passed under order 12 Rule 6 CPC in this case, the present suit is decreed in favour of the plaintiff and against the defendant for a sum of Rs. 1,30,500/ along with interest @ 10% per annum on the principal amount from 03.1.2007 i.e. the date of loan as mentioned in the statement of account, till realization. Plaintiff is also entitled cost of the suit proportionately. File be consigned to record room after completing necessary formalities.
Civil Suit no. : 375/09 Page 17 of 16
(Jitendra Kumar Mishra) ADJ (Central)12, Delhi 18.09.2010 rk Civil Suit no. : 375/09 Page 18 of 16