Delhi District Court
Inter Alia Having Its Branch Office At: vs Renu on 2 September, 2022
1
IN THE COURT OF SH. PARAMJIT SINGH : DISTRICT JUDGE (COMMERCIAL
COURT)06, CENTRAL DISTRICT,TIS HAZARI COURTS, DELHI
CS (Commercial) No. 380/2018
M/s ICICI Bank Ltd.
Having its registered office at:
Landmark Race Course Circle,
Vadodara390007.
Inter Alia having its branch office at:
EBlock, Videocon Tower,
Jhandewalan Extension
New Delhi 110055 ... Plaintiff
Vs.
Renu
D/o Sh. Nand Kishore,
R/o 33, Chatta,
Balika Palika Nagar Vidyalaya,
Near MD Girls School,
Ghaziabad201001 ... Defendant
Date of institution of the case - 14.11.2018
Date on which, case received in this Court 19.2.2020
Date on which, judgment have been reserved 30.8.2022
Date of pronouncement of judgment - 02.9.2022
JUDGMENT:
The present suit for recovery of Rs.5,46,003.82/ alongwith interest and cost thereon have been filed on behalf the plaintiff M/s ICICI Bank Ltd. against defendant Renu.
2. Brief facts as made out from the plaint are that the plaintiff bank is a body incorporated under the provisions of the Companies Act, 1956 and a banking CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 1/ 7 2 company under the provisions of the Banking Regulation Act, 1949 and is having its registered office at Land Mark, Race Course Circle, Vadodara390007 and inter alia having branch office at EBlock, Videocon Tower, Jhandewalan Extension, New Delhi110055. It has been stated that Sh. Mohit Grover was authorized representative of the plaintiff bank and was fully conversant with the facts of the case and has been authorized, empowered and competent to sign and verify the pleadings for and on behalf of the plaintiff bank, institute the suit in the Court, prosecute the suit and to do all acts, deeds in general for due prosecution of the suit.
It has been further stated that in the month of September, 2017, the defendant had approached and requested the plaintiff bank for grant of loan of Rs.5,47,828/ for purchase of the vehicle, namely "XCENT/V TVT" and she entered into a loan agreement under the loan cum hypothecation scheme of the plaintiff bank vide loan number LAGHZ00036348599. It is stated that in view of the request of the defendant, the plaintiff bank sanctioned a loan of Rs.5,47,826/ and disbursed an amount of Rs.5,32,552.98/ on 28.9.2017 to the dealer "Ashvar Automobiles Pvt. Ltd." under loan cum hypothecation scheme, after deduction of an amount of Rs.15,273.02/ towards processing fees, stamp duty and other charges, for purchase of the vehicle, namely, "XCENT/V TVT" bearing registration no. UP14GT3246 and the same was hypothecated in favour of the plaintiff bank in terms of hypothecation deed dated 19.9.2017. The said loan was to be repaid in 60 equated monthly installments of Rs. 11,308/.
It has been further stated that pursuant to the receipt of the loan, the defendant failed to adhere to the financial discipline of the repayment of the loan either towards principal or interest or charges thereon. It is stated that defendant was served with reminders to pay the amount, which was due towards her as result of the nonpayment of the EMIs and persistent requests were made by the officials of the plaintiff bank to abide by the terms of the agreement entered between the parties and CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 2/ 7 3 was also told that the time was the essence of the contract, to which the defendant had been promising from time to time but had failed to honour her commitments and accordingly, the plaintiff bank recalled the loan facility available to the defendant by way of sending a loan recall notice dated 23.7.2018. It is further stated that despite the issuance of the abovesaid notice dated 23.7.2018, the defendant has failed to repay the loan amount, which resulted in filing of the present suit, wherein it has been prayed that a decree for a sum of Rs.5,46,003.82/ alongwith interest @ 8.76% per annum at month rest till realization and cost may be passed in favour of the plaintiff and against the defendant.
3. Upon filing of the present suit, the process had been sent to the defendant and as per record, she has been duly served on 26.3.2021, as is evident from the order dated 27.3.2021 passed by the Ld. Predecessor of this court.
The defendant failed to appear despite service and accordingly, she was proceeded against exparte.
4. In its exparte PE, the plaintiff bank has examined PW1 Sh. Mohit Grover.
5. I have heard the arguments put forward by Ld. Counsel for the plaintiff and have carefully gone through the record of the case.
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) and other applicable provisions of the Commercial Courts Act, 2015. She further submitted that the defendant approached the plaintiff for grant of a loan for purchase of the vehicle and it amounted to a proposal/offer and when the plaintiff bank disbursed the loan, it amounted to the acceptance on the same terms and conditions as proposed by CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 3/ 7 4 defendant. The plaintiff acceded to the request of the defendant and sanctioned her a loan and hence the entire transaction constituted a concluded contract between the parties. Ld. Counsel for plaintiff submitted that 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. Ld. Counsel for the plaintiff also submitted that the present suit was within the period of limitation and there was no legal impediment in decreeing the suit in favour of the plaintiff and she prayed that the present suit may be decreed in favour of the plaintiff bank and against the defendant.
6. I have duly considered the arguments put forward by Ld. Counsel for plaintiff and have carefully gone through the record of the case. I have also carefully considered the evidence adduced on behalf of the plaintiff.
7. The present suit for recovery of Rs.5,46,003.82/ alongwith interest and cost thereon have been filed on behalf the plaintiffM/s ICICI Bank Ltd. against defendant Renu.
In order to prove its case on record, the plaintiff has examined PW1 Sh. Mohit Grover, Authorized Representative of the plaintiff bank, who has filed his evidence by way of affidavit (Ex. PW1/A), wherein it has been stated that he was well acquainted with the facts of the case and was also holding a Power of Attorney and such was competent to swear the present affidavit and he had proved the said Power of Attorney as Ex. PW1/1. PW1 further deposed that the defendant had approached and requested the plaintiff bank for grant of loan of Rs.5,47,828/ for purchase the vehicle and she availed the said loan vide loan agreement bearing no. LAGHZ00036348599 and in this regard, the defendant has executed the documents i.e Credit Facility Application Form along with terms and conditions of the loan, Deed of CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 4/ 7 5 Hypothecation and Irrevocable Power of Attorney which were Ex. PW1/2 to Ex. PW1/4 respectively. PW1 deposed that defendant agreed to repay the said loan in 60 equated monthly installments with interest as per the repayment schedule and the defendant also secured the loan by way of hypothecating the vehicle. PW1 further deposed that pursuant to the receipt of the loan, the defendant failed to adhere to the financial discipline of the repayment of the loan either towards principal or interest or charges thereon. It is stated that defendant was served with reminders to pay the amount, which was due towards her as result of the nonpayment of the EMIs and persistent requests were made by the officials of the plaintiff bank to abide by the terms of the agreement entered between the parties and was also told that the time was the essence of the contract, to which the defendant had been promising from time to time but had failed to honour her commitments and accordingly, the plaintiff bank recalled the loan facility available to the defendant by way of sending a loan recall notice dated 23.7.2018 and proved the said legal notice as Ex.PW1/5. PW1 has also proved certified copy of Statement of Account of the loan, Certificate u/s2 A of the Banker Books of Evidence Act and the certificate u/s 65B of Indian Evidence Act as Ex PW1/6 to Ex. PW1/8 respectively.
The important fact is that the aforesaid witness i.e PW1 has not been cross examined on behalf of the defendant, who remained absent and was accordingly proceeded against exparte. In these circumstances, the evidence of PW1 has remained uncontroverted and uncontested and I find no reason to disbelieve the said unrebutted evidence of PW1, especially in view of the fact that his evidence has also been corroborated to a large extent by the various documents placed on record on behalf of the plaintiff bank.
8. In the instant case, in view of the material on record, it is evident that present suit is apparently within the provisions of the Commercial Court Act, 2015 CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 5/ 7 6 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) of the Commercial Court Act. Further, the evidence in this case is primarily documentary and the documents tendered in evidence on behalf of the plaintiff are the documents maintained by a bank in the ordinary course of its business and these documents can be considered to be duly executed in due course of the business and were capable of binding the parties in to a contractual relationship.
In the present case, the plaintiff bank has claimed the suit amount, the components of which have been stated in Ex PW1/6 and the same are as under: Particulars Amount (in Rs.) Principal outstanding 4,87,835.90 Late Payment penalty 6,263.00 Cheque bouncing charges and other charges 5,900.00 Interest for the month 3,332.20 Prepayment charges @ 5.9% on outstanding principal 28,782.32 Interest on pending installment 13,890.40 Total 5,46,003.82
9. In the present case, in view of the material on record, the plaintiff bank is entitled to the outstanding principal and interest. It is also entitled to the late payment penalty and cheque bouncing charges as the same have been occasioned due to the acts and omissions of the defendant. The same flow from the contractual relationship as per the terms and conditions settled and forming part of the loan documents. Further, as far as right to claim the prepayment charges is concerned, the plaintiff has failed to establish the same as it is the case of recall of the loan on the part of the CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 6/ 7 7 plaintiff and not a foreclosure on the part of the defendant. In these circumstances, the plaintiff shall not be entitled to the said prepayment charges in this case.
Hence in view of the above after deducting the aforesaid amount of pre payment charges i.e. Rs.28,782.32/, the plaintiff shall be entitled to principal amount of Rs.5,17,221.50/ (i.e 5,46,003.82 - 28,782.32) alongwith interest and cost thereon.
In the instant case, the plaintiff will be entitled to interest from the date of institution of the suit till realization. The plaintiff shall be entitled to interest @ 8.76% p.a. which is the contractual rate of interest between the parties and the same also appears to be just and proper in the facts and circumstances of the present case.
10. Thus, in view of the above discussion and observations and having regard to the fact and circumstances of the case, the present suit is decreed in favour of the plaintiff bank and against the defendant Renu for a sum of Rs.5,17,221/ alongwith interest @ 8.76% p.a from the date of filing of the suit till realization.
The plaintiff shall also be entitled to the costs of the suit as per rules. Certificate of Counsel fee (if any submitted) be taken into consideration while computing the costs.
Decree sheet be prepared accordingly.
In compliance of the provisions of the Order XX rule 1 of the CPC ( as amended uptodate by the Commercial Courts Act, 2015) a copy of this judgment be issued to both the parties to the dispute through electronic mail (if the particulars of the same have been furnished) or otherwise. Digitally signed by PARAMJIT File be consigned to the record room. PARAMJIT SINGH SINGH Date:
2022.09.02 14:57:03 +0530 (Announced in the open ) (Paramjit Singh) (Court on 02.9.2022) District Judge,(Commercial Court)06 Central District,Tis Hazari Courts, Delhi 02.9.2022 CS (Comm) No. 380/2018 M/s ICICI Bank Ltd. Vs. Renu page 7/ 7