Delhi District Court
Syndicate Bank vs Shri Nishant Arora on 28 August, 2015
IN THE COURT OF SH. ARUN KUMAR: CIVIL JUDGE: SOUTH
WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 494/14
Unique case ID No: 02405C0067572013
IN THE MATTER OF
Syndicate Bank
Janak Puri, CBlock Branch
New Delhi110058
Through its Senior Branch Manager
Sh.Ashok Banka ... Plaintiff
Versus
1.Shri Nishant Arora R/oO32, 2nd Floor, New Mahaveer Nagar New Delhi110 058
2. Sh.Narender Kumar Arora R/oO32, 2nd Floor, New Mahaveer Nagar New Delhi110 058 ... Defendants Date of filing : 19.03.2013 Date of pronouncing judgment : 28.08.2015 Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.1 of 15 SUIT FOR RECOVERY OF Rs.2,70,386/ (RUPEES TWO LAC SEVENTY THOUSAND THREE HUNDRED EIGHTY SIX ONLY) BESIDES INTEREST PENDENTILITE AND FUTURE TILL REALISATION IN FULL EXPARTE JUDGMENT
1. By the present judgment, I will dispose of the present suit filed by the plaintiff bank i.e. Syndicate Bank for recovery of Rs.2,70,386/.
2. Initially, the present suit was filed by the plaintiff under order XXXVII CPC. However, subsequently on a statement of counsel for the plaintiff bank, same was converted to an ordinary suit for recovery of money instead of summary suit vide order dated 25.09.14.
3. Brief case of the plaintiff as per plaint is that in response to an application dated 30.06.04 of defendant no.1, an educational loan of Rs.1,64,500/ was sanctioned by the plaintiff bank in the name of Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.2 of 15
defendant no.1 on 05.07.04 which was repayable by the defendant no.1 after six months of completing the course or getting employment whichever is earlier. According to the plaintiff, defendant no.1 has completed his education and joined the service and as such the outstanding loan amount has become repayable in 84 EMIs of Rs.3,058/ p.m. payable w.e.f. 01.07.09. Defendant no.2 stood as guarantor for defendant no.1 vide guarantee agreement dated 05.07.04. Liability of defendant no.1 and defendant no.2, according to the plaintiff, was joint and several to pay the loan amount. However, since the defendants have filed to repay the loan amount as per the terms and conditions of the loan agreement, the loan account was classified by the plaintiff bank as NPA on 01.07.08. The defendants have acknowledged their liability towards the plaintiff bank vide letters dated 30.05.09 and 18.06.09 respectively. Since the defendants have failed to clear the Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.3 of 15
outstanding dues to the extent of Rs.2,70,386/ despite repeated requests and reminders by the plaintiff and despite service of legal notice dated 05.05.12, the plaintiff bank has filed the present suit for recovery of Rs.2,70,386/ along with pendentilite and future interest @ 18.5% p.a. w.e.f. 01.02.13 till the date of actual payment.
4. Summons of the suit were duly served upon the defendant no. 1 by way of publication in the newspaper 'The Statesman' dated 02.11.13 having circulation in New Delhi whereas summons to defendant no. 2 were duly served by way of publication in the newspaper 'The Statesman' edition dated 23.05.14.
5. The defendants have failed to appear in response to the summons of the suit. Nor did they file any written statement to the suit of the plaintiff bank and as such their defence was struck off and they were proceeded exparte, vide order dated 25.09.14. The matter was thereafter fixed for exparte plaintiffs evidence. Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.4 of 15
6. The plaintiff has examined Sh.Ravinder Pal Riat, Sr.Branch Manager of the plaintiff bank posted at Janak Puri Branch as sole witness in support of its case, who tendered his affidavit Ex.PW1/X along with following documents in evidence on behalf of plaintiff:
Ex.PW1/1 Copy of General Power of Attorney in favour of erstwhile Sr.Branch Manager Ex.PW1/1A Copy of General Power of Attorney in favour of PW1 Ex.PW1/2 Loan Application dated 30.06.04 of defendant no.1
Ex.PW1/3 General Agreement dated 05.07.04 executed by defendant no.1 in favour of the plaintiff bank Ex.PW1/4 Guarantee Agreement dated 05.07.04 Ex.PW1/5 Legal Notice dated 05.05.12 ExPW1/6 Acknowledgement of debt dated 18.06.09 by defendant no.1 Ex.PW1/7 Acknowledgement of debt dated 30.05.09 by defendant no.2 Ex.PW1/8 Statement of loan account of the defendants Ex.PW1/9 Certificate u/s 2A (b) of Bankers Books evidence Act in support of statement of account, Ex.PW1/8 Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr.Page No.5 of 15
7. PW1 Sh.Ravinder Pal Riat was not crossexamined despite opportunity and as such he was discharged. Thereafter on a separate statement of Sr.Branch Manager of the plaintiff bank, plaintiffs evidence was closed on 19.02.2015 and the matter was fixed for exparte final arguments. Exparte final arguments have been heard on behalf of the plaintiff on 28.08.2015.
8. It has been submitted by ld.counsel for the plaintiff that since the defendants have failed to appear in response to the summons of the suit and have not filed written statement to the suit of the plaintiff, all the averments made by the plaintiff in the plaint shall be deemed to have been admitted by the defendants. Even otherwise, according to him, the plaintiff has been able to prove all the averments made by the plaintiff bank in the plaint by way of un controverted testimony of PW1 Sh.Ravinder Pal Riat in the form of affidavit Ex. PW1/X and the documentary evidence in the form Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.6 of 15
of documents Ex.PW1/1 to Ex.PW1/9. Thus, according to him, plaintiff is entitled to a decree in terms of prayers made by the plaintiff in its plaint dated 18.03.13 filed by the plaintiff on 19.03.13.
9. I have heard the submissions made on behalf of the plaintiff and have also perused the record.
10.No doubt in appropriate cases, the plaintiff can pray for passing of a decree in his favour in case the defendants fail to appear in response to summons of the suit and file written statement to the suit on the basis of implied admissions on the part of defendants of the suit of the plaintiff. However, since the present suit of the plaintiff was based on documents and the averments made by the plaintiff bank in the plaint were not in consonance with the documents relied upon by the plaintiff, the plaintiff was directed to prove the averments made by the plaintiff in the plaint by leading Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.7 of 15
evidence in support of its case. Plaintiff has accordingly examined PW1 Sh.Ravinder Pal Riat as sole evidence in support of its case. However, in his affidavit, Ex.PW1/X, PW1 has merely re affirmed all the averments made by the plaintiff bank in its plaint once again on oath. In my considered opinion, plaintiff has failed to prove its case as set up by the plaintiff in its plaint filed on 19.03.13 in as much as averments made in the aforesaid plaint as well as the affidavit of PW1 are not in consonance with the documents Ex.PW1/1 to Ex.PW1/9. Even the averments made in the plaint as well as affidavit are contradictory to each other.
11. A bare perusal of the plaint would show that the plaintiff has alleged in para no.4 of the plaint that a loan of Rs.1,64,500/was sanctioned by the plaintiff bank as education loan in the name of defendant no.1 on 05.07.04 which was repayable by the defendant no.1 after six months of completing the course or getting the Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.8 of 15
employment whichever is earlier. However, the plaintiff has failed to allege in the aforesaid para that the said loan had ever been disbursed by the plaintiff bank in favour of the defendant no.1. The averment regarding disbursal of the loan for the first time has been incorporated by the plaintiff in para no.17 of the plaint wherein it has been alleged that cause of action also arose when the loan was disbursed to the defendant no.1 by the plaintiff bank on 05.07.2004. A bare perusal of the General Agreement, Ex.PW1/3 shows that in schedule 1, it has been mentioned by the plaintiff bank that the loan amount has been released in favour of defendant no.1 immediately meaning thereby that as per the agreement, the loan was disbursed on the date of execution of the said agreement i.e on 05.07.04 itself. However, as per the receipts annexed by the plaintiff along with the plaint at page nos.21 to 26 it appears that the loan amount was disbursed by the plaintiff in the following manner: Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.9 of 15
Rs. Date
10,500/ 10.01.05
33,000/ 05.07.04
28,770/ 13.07.05
12,460/ 13.01.07
33,770/ 28.08.06
15,000/ 22.12.05
12.Thus, the bare perusal of receipts shows that a sum of Rs.
1,33,500/ has only been disbursed by the plaintiff bank to the defendant no.1 under the agreement, Ex.PW1/3. It is further apparent from perusal of receipts annexed at page nos.24, 25 and
26. The aforesaid receipts not only contradicts the case of the plaintiff bank as to the release of the entire loan amount immediately on the date of execution of agreement i.e. on 05.07.04 but also contradicts the stand of the plaintiff regarding disbursal of the loan amount of Rs.1,64,500/ in total in favour of defendant no.
1. The statement of loan account, Ex.PW1/8, on the other hand, states the total loan amount granted to defendant no.1 by the Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.10 of 15
plaintiff bank as Rs.1,50,458/. Similar is the case with alleged acknowledgement Ex.PW1/7, allegedly signed by defendant no.2, which states that a loan of Rs.1,50,000/ was availed by defendant no.2 from the plaintiff bank for defendant no.1 on 20.11.07. Thus, in view of aforesaid contradictions, plaintiff has failed to prove the disbursal of loan amount of Rs. 164500/ to defendant no. 1 as alleged by plaintiff in its plaint. Though it has been alleged by plaintiff bank in the plaint that loan amount was repayable by the defendants in 84 EMIs of Rs.3,058/ each w.e.f. 01.07.09, however, there is no mention about the number of installments in the entire loan agreement Ex. PW1/3 allegedly executed between the parties in as much as it has only been mentioned in schedule 2 of the loan agreement Ex.PW1/3 that the loan amount shall be repayable by defendant no.1 after six months of completing his course or getting the employment whichever is earlier. In the entire plaint, the Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.11 of 15
plaintiff has failed to disclose the date of completion of course by defendant no.1 or the date of getting employment by the defendant no.1. Thus, it appears that the plaintiff has deliberately made a false averments in para no.4 of the plaint and in corresponding para of affidavit Ex.PW1/X that the loan amount was repayable by the defendants in 84 EMIs of Rs.3,058/ each w.e.f. 01.07.09 merely to bring the present suit within limitation. The aforesaid averment even otherwise is in contradiction to the averments made by the plaintiff bank in para no.9 of the plaint as well as the affidavit in as much as it has been alleged in para no.9 of the plaint that since the defendant no.1 did not repay the loan account properly and allowed it to became irregular the same was classified as NPA on 01.04.08. It is beyond the comprehension of this court as to how loan account could have been classified by the plaintiff bank as NPA on 01.04.08 when the liability to repay the loan amount had to start w.e.f. Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.12 of 15
01.07.2009 as per averments made in para 4 of the plaint. As has already been discussed herein above, no specific time period for re payment of the loan amount has been mentioned in agreement, Ex.PW1/3 except that it becomes payable after six months of completing the course or getting the employment which ever is earlier. Admittedly, the defendant no.1 has availed the loan in question for pursuing BCA course and duration of the course was stated to be three years in the application form Ex. PW1/2. Thus, in the absence of any specific date given by the plaintiff in the plaint as to the completion of course by defendant no.1, the court can assume the date of completion of course to be somewhere during the middle of the year 2007 and the loan amount in terms of the agreement would have been repayable after six months of completion of the said course i.e. somewhere during the beginning of year 2008. Since no time period had been agreed to between the Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.13 of 15
parties for repayment, though the defendant no.1 in his application had requested for grant of loan repayable in 48 monthly installments in the absence of any specific time period agreed to between the parties, in my considered opinion, the loan, if any given by the plaintiff bank would have become repayable on demand after six months from the date of completion of course by the defendant no.1 i.e. somewhere during the beginning of the year 2008 and even if the alleged acknowledgements, Ex. PW1/6 and Ex. PW1/7 are taken to the acknowledgements within the meaning of Section 18 of the Limitation Act, the same would have extended the period of limitation for filing of the present suit by the plaintiff latest till 17.06.12, whereas the present suit has been filed by the plaintiff on 19.03.13. Thus, the suit is clearly barred by limitation.
13. In view of the aforesaid discussion, in my considered opinion, the plaintiff has utterly failed to prove the disbursal of the loan amount Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.14 of 15
of Rs.1,64,500/ by the plaintiff to the defendant no.1 or that the said loan amount was repayable by the defendants in 84 EMIs of Rs.3,058/ each w.e.f. 01.07.09. The plaintiff bank, in my considered opinion has further failed to prove the outstanding liability of the defendants to the extent of Rs.2,70,386/ and that the present suit of the plaintiff is within prescribed period of limitation. Thus, the present suit of the plaintiff for recovery of Rs.2,70,386/ against the defendants is hereby dismissed. Decree sheet be prepared accordingly.
Announced in the open court on this 28th day of August, 2015 This judgment consists of fifteen signed pages.
(Arun Kumar) Civil Judge(SW)/Dwarka Courts New Delhi/28.08.2015 Suit No.494/13 Syndicate Bank Vs. Nishant Arora & Anr. Page No.15 of 15