Delhi District Court
Oriental Bank Of Commerce vs Sh. Lache Ram on 11 November, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No.15835/2016
CNR No. DLSW010012832015
IN THE MATTER OF:
1. Oriental Bank of Commerce
Head Office at Harsha Bhawan,
E Block, Connaught Place,
New Delhi-110001 and
Branch Office at Village Dhichaon
Kalan, Delhi-110043.
... Plaintiff
v.
1. Sh. Lache Ram
S/o Mange Ram,
R/o 134/970, Jharoda Kalan,
South West Delhi, Delhi-110072
2. Sh. Lachi Ram
S/o Jai Lal,
R/o Kotewali Gali, V&PO Jharoda Kalan,
South West Delhi, Delhi-110072 and
3. Sh. Hari Om
S/o Mam Chand
Naiwali Gali, V& PO Jharoda Kalan,
South West Delhi, Delhi-110072
... Defendants
CS DJ ADJ No.15835/2016
Page No. 1/22
Date of institution of suit: 10.07.2015
Date of order reserved: 30.10.2019
Date of pronouncement of order: 11.11.2019
EX PARTE JUDGMENT
1. A foreclosure suit for recovery of ₹7,54,249/- (Rupees Seven
lakhs fifty four thousand two hundred and forty nine only) alongwith
interest @ 10% p.a. from the date of the filing of the suit until its
actual realization has been filed by the plaintiff mortgagee, namely,
Oriental Bank of Commerce (herein "plaintiff") against the defendant
No.1, mortgagor, namely, Lache Ram (hereinafter "defendant No.1")
and the guarantors - defendant Nos.2 and 3, namely Lachi Ram
(hereinafter "defendant No.2") and Hari Om (hereinafter "defendant
No.3").
Facts
2. The facts of the case are that the plaintiff on 23.12.2003 had advanced a crop loan of ₹2,00,000/- (Rupees Two lakhs only) to the defendant No.1. The defendant Nos.2 and 3 stood as guarantor for the defendant No.1 and also signed a guarantee agreement. To secure the loan advanced by the plaintiff to the defendant No.1, the defendant No.1 signed and extended demand promissory note, agreement of hypothecation of live stock existing and future crops, agreement of over drafts, agreement of guarantee of defendant Nos.2 and 3. The CS DJ ADJ No.15835/2016 Page No. 2/22 defendant No.1 also mortgaged an immovable property i.e. 1/10th share in agriculture land bearing Khasra Nos.3//16(4-16), 25 (4-16), 79//3/2 (4-12), 86//18 (4-4), 23 (4-16), 100//11 (4-16), 12 (4-16), 20 (4-16), 21 (4-16), 111//18 (4-16), 136//7 (4-16), 8 (4-16), 9 (4-16), 10 (4-16), 12 (4-16), 12 (4-16), 13 (4-16), 13 (4-16), 14 (4-16), 17 (4-16), 18 (4-16), 243 (0-9) situated in the revenue estate of Village Jharoda Kalan, New Delhi-110072 (hereinafter "mortgage property") with the plaintiff bank vide registered mortgage deed with the Sub Registrar-IX bearing registration No.7875, Book No.I, Vol. No.72 at pages 29-35 dated 12.11.2003 (hereinafter "mortgage deed").
3. On completion of all formalities, the loan/mortgage money was advanced to the defendant No.1 by the plaintiff and the defendant No.1 was to pay back the same through instalments. After sometime, the defendant No.1 defaulted in payment of instalments and also failed to maintain fiscal discipline. On default of the defendant No.1 to regularise the loan account, the plaintiff bank issued notice dated 20.05.2015 to the defendant No.1 and called upon him to pay the outstanding amount with interest within ten days from the date of receipt of notice. The defendant No.1 did not pay any heed to the plaintiff's notice and consequentially the loan account was declared a non-performing asset by the plaintiff bank. Hence, the plaintiff preferred the present suit.
CS DJ ADJ No.15835/2016 Page No. 3/22Pleadings
4. The plaintiff bank in the plaint has averred that the loan was advanced to the defendant No.1 on 23.12.2003 and the defendant Nos.2 and 3 stood as guarantor for the defendant No.1. The loan advanced by the plaintiff to the defendant No.1 was a crop loan and the same was secured by a demand promissory note dated 23.12.2003 for an amount of ₹2,00,000/- (Rupees Two lakhs only), hypothecation agreement of livestock existing and future crops dated 23.12.2003, over draft agreement dated 23.12.2003, guarantee agreement by defendant Nos.2 and 3 and a registered mortgage deed securing the loan through mortgage property. The plaintiff has averred in the plaint that the defendant No.1 on different occasions confirmed the balance outstanding amount through the balance and security confirmation letters dated 11.09.2006, 29.06.2009, 26.06.2012 and 04.04.2015.
5. The loan was to repaid by the defendant No.1 in instalments, however, when the defendant No.1 failed to pay the instalments, the plaintiff issued reminders requesting the defendant No.1 to make payment in terms of the loan agreement. The defendant No.1 did not make payment and resultantly the loan account was declared a non performing asset. The plaintiff issued a notice dated 20.05.2015 through its counsel and called upon the defendants to pay an amount of ₹7,43,398/- (Rupees Seven lakhs forty three thousand three hundred and ninety eight only) towards the outstanding amount CS DJ ADJ No.15835/2016 Page No. 4/22 alongwith interest as on 16.05.2015. The plaintiff has further averred that the defendants failed to make any payment and the plaintiff bank has been constraint to prefer the present suit seeking an amount of ₹7,54,249/- (Rupees Seven lakhs fifty four thousand two hundred and forty nine only) alongwith interest @ 10% per annum, preliminary decree for foreclosure and final decree for foreclosure in terms of Order XXXIV of the Code of Civil Procedure, 1908 (hereinafter "CPC").
6. On service of summons, the defendants entered their appearances and filed their written statements.
7. The defendant No.1 in his defence has urged that the plaintiff bank has abused the process of law and taken advantage of his illiteracy. It is urged by the defendant No.1 that the documents signed by him were not read and explained to him by the plaintiff at the time of signing of various agreements and other documentation.
8. The defendant No.1 has urged in his defence that the suit preferred by the plaintiff is time barred as the loan was advanced by the plaintiff in the year 2003, however, the suit has been filed after lapse of 12 years. The defendant No.1 has further urged in the written statement that the present suit is not maintainable, as no claim has been raised by the plaintiff over the crop in terms of clause 5 and 6 of the mortgage deed. It is averred by the defendant No.1 that the plaintiff bank intends to usurp the mortgage property, as the first attempt to recover the loan amount was to be through the crop. It is CS DJ ADJ No.15835/2016 Page No. 5/22 also urged by the defendant No.1 that the plaintiff bank on the pretext of remission of loan scheme under the loan maafi scheme on 31.08.2006 got the balance and security confirmation letter signed from the defendant No.1. It is also urged that subsequently, in the year 2009, 2012 and 2015 the plaintiff bank got the balance and security confirmation letters signed from the defendant on the pretext of loan maafi scheme.
9. The defendant No.1 in his written statement has averred that both the guarantors are also illiterate persons like him and the suit is not maintainable against them. The defendant No.1 has averred in his defence that the suit preferred by the plaintiff is to be dismissed with exemplary cost as the same is marred by misrepresentation, concealment and suppression of material facts. The defendant No.1 has also denied that the mortgage property has been equitably mortgaged and any charge on the same has been created on the basis of the registered mortgage deed. The defendant No.1 in his defence has denied that his loan account became irregular.
10. The defendant Nos.2 and 3 filed a joint written statement and the defence urged by them is on the same tangent as that of the defendant No.1. It is also averred by the defendant Nos.2 and 3 that they being illiterate persons were not explained about the contents and consequences of the documents being signed by them. The defendant Nos.2 and 3 have also averred that the suit preferred by the plaintiff bank is time barred. It is averred by the defendant Nos.2 and 3 in their CS DJ ADJ No.15835/2016 Page No. 6/22 written statement that the plaintiff bank intentionally waited till the time the amount became so hefty that the same could not be paid by the defendant Nos.2 and 3 and a charge can be created on the mortgage property through the mortgage deed.
11. The plaintiff preferred his replication to the written statement of defendant No.1 and also of defendant Nos.2 and 3 on 19.03.2016. Question
12. On completion of pleadings of parties, following issues were framed vide order dated 10.04.2017:
(i) Whether the suit is time barred? ...OPD
(ii) Whether the plaintiff did not comply with the terms and conditions of the mortgaged deed, if so, its affects? ...OPD
(iii) Whether the balance confirmation letter were got signed from the defendant fraudulently? ...OPD
(iv) Whether the plaintiff is entitled for decree of foreclosure of mortgaged property, as prayed for? .OPP
(v) Whether the plaintiff is entitled for recovery of amount? ...OPP
(vi) Whether the plaintiff is entitled for recovery of interest as claimed? ...OPP
(vii) Relief CS DJ ADJ No.15835/2016 Page No. 7/22
13. This court deems appropriate to observe that before being in absentia, the defendants repeatedly sought adjournments on the pretext of on going settlement/compromise talks amongst them. However, no compromise and/or settlement was arrived amongst the parties. On account of non appearance, the defendants were proceeded ex parte vide order dated 01.12.2018.
14. To prove its case, the plaintiff bank led ex parte evidence and examined Sh.Naresh Kumar, Senior Manager, as PW1.
15. PW1 has reiterated the version of the plaintiff bank as narrated in the plaint and deposed on oath in his evidence by way of affidavit Ex.PW1/A that defendant No.1 had applied for a crop loan from the plaintiff bank to the tune of ₹2,00,000/- (Rupees Two lakhs only) and the loan amount was sanctioned in his favour vide sanction letter dated 23.12.2003. PW1 has further deposed that with regard to the repayment of the loan amount, the plaintiff bank secured the same by two guarantors, defendant Nos.2 and 3 and various other documents, such as - promissory note, and a registered mortgage deed.
16. The plaintiff bank has also relied upon the following documents to prove its case:
S.No. Description and date, if any of the Exhibit Mark document put on the document i. Copy of power of attorney in favour of Sh. Ex.PW1/1(OSR) Prem Singh Gossain granted by plaintiff bank. ii. Demand promissory note dated 23.12.2003 Ex.PW1/2 for Rs.2,00,000/- (Rupees Two lakhs only) by CS DJ ADJ No.15835/2016 Page No. 8/22 defendant No.1, namely, Lache Ram.
iii. Agreement of hypothecation of Live Stock Ex.PW1/3 Existing and Future Crops to secure loan amount dated 23.12.2003 for ₹2,00,000/- (Rupees Two lakhs only) by defendant No.1, namely Sh. Lache Ram iv. Agreement of overdraft dated 23.12.2003 for Ex.PW1/4 ₹2,00,000/- (Rupees Two lakhs only) by defendant No.1, namely Sh. Lache Ram v. Agreement of guarantee dated 23.12.2003 for Ex.PW1/5 ₹2,00,000/- (Rupees Two lakhs only) by defendant No.2, namely Sh. Lachi Ram.
vi. Agreement of guarantee dated 23.12.2003 for Ex.PW1/6 ₹2,00,000/- (Rupees Two lakhs only) by defendant No.3, namely Sh. Hari Om.
vii. Balance and security confirmation letter dated Ex.PW1/7 11.09.2006 by defendant No.1, namely, Sh.
Lache Ram thereby confirming the balance outstanding amount in the said loan as on 31.08.2006 for ₹2,54,200/- (Rupees Two lakhs fifty four thousand and two hundred only).
viii. Balance and security confirmation letter dated Ex.PW1/8 29.06.2009 by defendant No.1, namely, Sh.
Lache Ram thereby confirming the balance outstanding amount in the said loan as on 31.08.2006 for ₹3,58,320/- (Rupees Three lakhs fifty eight thousand three hundred and twenty only).
ix. Balance and security confirmation letter dated Ex.PW1/9 26.06.2012 by defendant No.1, namely, Sh.
Lache Ram thereby confirming the balance outstanding amount in the said loan as on 26.06.2012 for ₹5,58,566/- (Rupees Five lakhs fifty eight thousand five hundred and sixty six only).
CS DJ ADJ No.15835/2016 Page No. 9/22x. Balance and security confirmation letter dated Ex.PW1/10 04.04.2015 by defendant No.1, namely, Sh.
Lache Ram thereby confirming the balance outstanding amount in the said loan as on 30.03.2015 for ₹7,34,319/- (Rupees Seven lakhs thirty four thousand three hundred and nineteen only).
xi. Registered mortgage deed. Ex.PW1/11 xii. Office copy of notice dated 20.05.2015. Ex.PW1/12 xiii. Bank statement of defendant No. 1's account. Ex.PW1/13 Submissions by Counsel for the plaintiff
17. Sh. H.P. Bhardwaj, learned counsel for the plaintiff advanced ex parte submissions. The counsel for the plaintiff bank submitted that the defendant No.1 availed a loan from the plaintiff bank and the same was secured by a promissory note, hypothecation agreement, agreement of guarantee and a mortgage deed. The learned counsel for the plaintiff submitted that the defendant failed to make payment of instalments toward the loan and despite repeated reminders not only defendant No.1 but also the guarantors, defendant Nos.2 and 3 failed to make any payment to the plaintiff. The learned counsel for the plaintiff submitted that the defence urged by the defendants in their written statement is moonshine and without any basis. The learned counsel for the plaintiff submitted that the suit preferred by the plaintiff is within the prescribed period, as the suit preferred by the plaintiff is a foreclosure suit and squarely covered under Order XXXIV, CPC. The learned counsel for the plaintiff further submitted CS DJ ADJ No.15835/2016 Page No. 10/22 that on perusal of the written statement of the defendants, it is inferred that the defendants have deemed it to be a simple money recovery suit. Learned counsel for the plaintiff further submitted that not only defendant No.1 had time and again confirmed the balance outstanding amount but also the defendant No.1 was put to notice by Ex.PW1/12, yet the defendants failed to clear the outstanding loan amount.
18. Sh. Bhardwaj, learned counsel for the plaintiff bank submitted that the defendants have caused loss to the plaintiff bank, particularly after accepting the loan from the plaintiff bank, the defendants failed to repay the loan. The learned counsel for the plaintiff bank concluded his arguments on the note that the suit preferred by the plaintiff be decreed against the defendant and a preliminary decree be drawn for the amount due alongwith interest and in case the defendants failed to pay the decreetal amount, the final decree be drawn against the defendants with regard to the mortgage property in accordance with law.
Reasoning & Findings
19. I, have carefully perused and examined the case record, considered and deliberated over the submissions advanced by the learned counsel for the plaintiff. Even though the defendants have been proceed ex parte vide order dated 01.12.2018, this court deems appropriate to state its decision on each issue with reasons in terms of Order XX, Rule 5, CPC. My issue-wise findings ensue in the following paragraphs of this judgment.
CS DJ ADJ No.15835/2016 Page No. 11/22 Issue No. 1Whether the suit is time barred?
20. The onus to prove issue No.1 was casted upon the defendants. However, the defendants did not lead any evidence in the case and proceeded ex parte after completion of pleadings.
21. The loan in question was taken by defendant No.1 on 23.12.2003. On the same date the defendant No. 1 issued a demand promissory note for a sum of ₹2,00,000/- (Rupees Two lakhs only) (Ex.PW1/2) in favour of the plaintiff bank. In order to avoid litigation, balance and security confirmation letters were executed by the defendant No. 1 in favour of the plaintiff bank on different dates viz., Ex.PW1/7, Ex.PW1/8, Ex.PW1/9 and Ex.PW1/10, wherein the defendant No.1 has acknowledged the correctness of debt balance due to the bank as on the respective date.
22. I, am in consonance with the submissions advanced by Sh. H.P. Bhardwaj, the learned counsel for the plaintiff that the defendants have wrongly averred in their written statement that the suit is time barred by treating the same, as a simple money recovery suit.
23. This court observes and finds that the plaintiff bank has preferred a foreclosure suit against the defendants and hence sought a decree not only for the sum of amount due but also in case the defendants fail to pay the amount due alongwith interest, a preliminary decree for foreclosure be passed against the defendants. It is observed that the defendants have urged in their written statement that the loan CS DJ ADJ No.15835/2016 Page No. 12/22 was advanced by the plaintiff to the defendant No.1 in the year 2003 and the present suit was filed in the year 2015 i.e. after expiry of 12 years and thus the suit is hopelessly time barred. I am not at all impressed by the defence urged by the defendants in their written statement merely for the reason that the suit preferred by the plaintiff is squarely covered under Article 62 of First Division - Suits, The Schedule of the Limitation Act, 1963. As per Article 62, the prescribed period of limitation is 12 years from the time period when the money suit for becomes due.
24. Now coming to the case at hand, assuming for the sake of arguments, the defendant No. 1 defaulted in payment of immediately after the advancement of loan by the plaintiff on 23.12.2003, the prescribed period of limitation of 12 years would lapse on 22.12.2015. the plaint was filed by the plaintiff on 09.07.2015 and whereas the suit was instituted on 10.07.2015.
25. However, the default in payment of loan happened on a later date and not 23.12.2003 itself. Even considering the date 11.09.2006 i.e. date of balance and security confirmation letter signed by the defendant No. 1, the suit is well within the prescribed period of limitation and not barred by time.
26. In view of the above observations and findings, the suit of the plaintiff is well within time and not barred by law of limitation. Accordingly, the issue No.1 is decided against the defendants and in favour of the plaintiff.
CS DJ ADJ No.15835/2016 Page No. 13/22 Issue No. 2Whether the plaintiff did not comply with the terms and conditions of the mortgaged deed, if so, its affects (sic)?
27. The onus to prove issue No.2 was casted upon the defendants. It is observed that with the defendants being proceeded ex parte vide order dated 01.12.2018, no evidence has come on record on behalf of the defendants to prove the issue No.2.
28. Interestingly, on perusal of clause 17 of the mortgage deed - Ex.PW1/11, this court observes that the mortgagor (defendant No.1 herein) agreed to pay the amount advanced by the plaintiff bank together with interest and all other charges by the quarterly/half yearly/yearly instalments payable within the last week of the period for which it is payable and in case of default or any two instalments the whole amount due shall become payable immediately and the plaintiff bank shall be entitled to realize its dues in terms of clause 18 of Ex.PW1/11. It is observed and held that it is the defendant No.1 who is in default of the mortgage and not the plaintiff bank.
29. Since the defendants failed to discharge the onus casted upon them, the issue No.2 is decided against the defendants and in favour of the plaintiff.
Issue No. 3Whether the balance confirmation letters were got signed from the defendant fraudulently?
CS DJ ADJ No.15835/2016 Page No. 14/2230. The onus to prove issue No.3 was also casted upon the defendants. It is observed that no evidence has been lead by the defendants, and the defendants were proceeded ex parte vide order dated 01.12.2018. The issue No.3 is accordingly decided against the defendants and in favour of the plaintiff bank.
Issue No. 4Whether the plaintiff is entitled for decree of foreclosure of mortgaged property, as prayed for?
31. The onus to prove issue No.4 was saddled upon the plaintiff. At the outset, this court observes that the signing, execution and registration of mortgage deed - Ex.PW1/11 has not been disputed by the defendant No.1. It is also observed on perusal of the written statement that the defendant has not denied receiving any loan from the plaintiff bank. It is also observed that the defendant has not denied the mortgage deed - Ex.PW1/11.
32. According to Section 58 of the Transfer of Property Act, 1882, a mortgage is the transfer of an interest in some specific immovable property for the purpose of securing - (i) payment of money advanced or to be advanced by way of loan, (ii) an existing or future debt, or
(iii) the performance of an engagement, which may give rise to a pecuniary liability.
33. Mortgage is the transfer of an interest in some immovable property and it is given by way of security for a loan. A person who takes a loan and gives some security for repayment of the loan in the CS DJ ADJ No.15835/2016 Page No. 15/22 form of transfer of some interest in any immovable property, it is called a mortgage of property. The ownership of the property remains in the debtor but some of his interest in the property are transferred to the creditor who has given loan. In case the advance money could not be recovered by the creditor i.e. person who has advanced the money, he can recover his money on the basis of his interest in that property. In short, it may be said that the mortgage is for the security of the creditor.
34. In a mortgage, the right in the property created by the transfer is accessory to the right to recover the debt. The debt subsist in a mortgage, but the transaction by which the debt is extinguished is not a mortgage but a sale. The hypothecation of a property does not create any bar in execution of an agreement to sell the same because in hypothecation the title of the property is not transferred to the mortgagee.
35. The elements to constitute a mortgage in a transaction are as under:
(a) there must be a transfer of an interest;
(b) the interest transferred must be in specific immovable property, and
(c) the transfer must be made to secure a loan of money, debt or performance of an engagement which may give rise to a pecuniary liability.CS DJ ADJ No.15835/2016 Page No. 16/22
36. The instrument by which transfer is effected in a mortgage is known as mortgage deed. No particular form of words is necessary for the creation of a mortgage. The transfer should be originally intended as security for debt. The court will ascertain the intention of the parties by looking into the substance of the deed - See Tara Chand v. Sagarbai.1
37. In the case at hand, a registered mortgage deed has been signed and executed between the plaintiff and the defendant No.1. It is observed that the mortgagor (defendant No.1 herein) bound himself personally to pay the mortgage money to the mortgagee (plaintiff herein) and further agreed expressly and impliedly that in the event of his failing to pay according to the contract, the plaintiff shall have a right to cause the mortgage property to be sold and the proceeds of a sale be applied in payment of the mortgage money.2
38. The mortgage in question is a simple mortgage, 3 as the defendant No.1 without delivering the possession of the mortgaged property bound himself personally to pay the mortgage money and further agreed that in the event of his failure to pay according to the contract, the mortgagee (plaintiff herein) shall have a right to cause the mortgage property to be sold and the proceeds of sale be applied in payment of the mortgage money. In simple mortgage, the possession of the property remains with the mortgagor and the mortgagor 1 (2007) 5 SCC 392 2 See Clause 17, 18 of Ex.PW1/11, p.102 3 See Section 58(b) of the Transfer of Property Act, 1882 CS DJ ADJ No.15835/2016 Page No. 17/22 personally covenants to pay the mortgage money. The mortgagor agrees that in case of his default by non payment, the property may be sold by the mortgagor under the order of the court.
39. In the case of simple mortgage, the mortgagee has two fold security. Firstly, the mortgagor takes personal obligation, and secondly, the property which may be sold in case of failure of the mortgagor to pay. The remedy of the mortgagee is that when the mortgagor fails to pay back the money, the mortgagee would move to the court for a decree to sell the property, and as soon as the decree is awarded he may proceed to sell the property. The proceeds of the sale will be used to pay of his debt alongwith the interest and the balance amount, if any, will have to be paid back to the mortgagee.
40. I deem appropriate to reproduce, Clause 18 of the mortgage deed (Ex.PW1/11), which reads as under:
"18. That if the mortgagor shall fail to pay the bank the amount due to from him under this mortgage at any time in demand being made or it together with interest and all other sums, incidental and all other charges the bank shall be competent and fully justified and entitled to realize its dues by sale of the property hereby mortgaged and if the sale proceed insufficient to satisfy the dues of the bank including costs and other charges etc. to recover the balance from the property mortgaged and his other properties and his person together with all costs and charges. In the event of a suit becoming necessary for the recover of the bank dues, interest at the aforesaid rate shall continue to run and be charged till all realizations of the full dues of the Bank."CS DJ ADJ No.15835/2016 Page No. 18/22
41. On bare perusal of Clause 18 of the mortgage deed it is apparent that in case failure to pay the amount due by the defendant No. 1 to the plaintiff, the mortgaged property can be sold and the sale proceeds be appropriated towards the satisfaction of the outstanding amount. It is also observed that the defendant No. 1 in his written statement, particularly, paragraph No. 13 of the reply on merits has admitted the receipt of notice dated 20.05.2015 (Ex.PW1/12), wherein the plaintiff called for payment of the outstanding amount.
42. This court finds that the defendant No. 1 by virtue of a registered mortgaged deed, to secure the loan, the defendant No. 1 mortgaged the property with the plaintiff. It is also observed that the defendant No. 1 has time and again confirmed the balance outstanding amount of the loan. It is also observed that the loan availed by the defendant No. 1 along with interest remains unpaid. It is held that the mortgagee (plaintiff bank herein) is entitled for a decree of foreclosure in accordance with law.
43. In view of the above observations, the issue No. 4 is decided in favour of the plaintiff and against the defendants.
Issue No. 5Whether the plaintiff is entitled for recovery of amount?
44. The onus to prove issue No. 5 was also casted upon the plaintiff. It is observed that with the issue No. 4, decided in favour of the plaintiff and against the defendants, the plaintiff is entitled to recover the outstanding amount from the defendants. The defendant No. 1 is CS DJ ADJ No.15835/2016 Page No. 19/22 prime borrower and whereas the defendant Nos. 2 and 3 are the guarantors, who also defaulted to oblige their guarantee to the plaintiff, particularly, when the defendant No. 1 defaulted to clear the dues. The plaintiff's claim is within the prescribed period of limitation. It is observed that there is no legal impediment, which would disentitle the plaintiff bank to recover the outstanding amount from the defendants. The issue No. 5, is accordingly decided in favour of the plaintiff and against the defendants.
Issue No. 6Whether the plaintiff is entitled for recovery of interest, as claimed?
45. The onus to prove issue No. 6 was also casted upon the plaintiff. It is not disputed that the plaintiff is a bank and it is part of it business operation to advance loan to its customers and charge interest on the money advanced. As a matter of fact, the defendants have admitted that the defendant No. 1 availed crop loan from the plaintiff and the same was to be returned to the plaintiff by the defendant No. 1 along with interest. The issue Nos. 4 and 5 have already been ruled in favour of the plaintiff and against the defendants.
46. It is observed that as per the promissory note (Ex.PW1/2), the defendant No. 1 agreed to pay interest @ 11% p.a. Above all, the defendant in the mortgage deed (Ex.PW1/11), Clause 1 agreed to pay interest 0.75% p.a. below the prime lending rate with a minimum interest of 10.25% p.a.4 4 Clause 1 of the mortgage deed (Ex.PW1/11) -
CS DJ ADJ No.15835/2016 Page No. 20/2247. That said, the plaintiff is held entitled for interest on the amount due by the defendants. The issue No. 6 is decided in favour of the plaintiff and against the defendants.
Issue No. 7Relief
48. In view of my findings on issue Nos. 4, 5 and 6 and the same being ruled in favour of the plaintiff and against the defendants, the suit of the plaintiff is decreed and plaintiff bank is held entitled to the following reliefs:
(a) the defendants are jointly and severally held liable to pay the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to the 09th day of July 2015 is the sum of ₹7,54,249/- (Rupees Seven lakhs fifty four thousand two hundred and forty nine only) and thereafter along with interest @10% p.a. on the said amount until the date of actual realisation. The plaintiff is also held entitled for the costs of the suit;
(b) the defendants are directed to pay into Court the above amount on or before the 20.12.2019;
(c) that, on the payment of the aforesaid amount on or before 20.12.2019, the plaintiff shall bring into Court all documents in its possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the "1. That interest at the rate of 0.75% below the prime lending rate with a minimum of 10.25% P.A. shall be calculated on the charged on the last working day of month as per practice of the Bank."CS DJ ADJ No.15835/2016 Page No. 21/22
defendant No.1, or to such person as he appoints, and the plaintiff shall, if so required, re-convey or re-transfer the said property free from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under it or any person under whom it claims and free from all liability whatsoever arising from the mortgage or this suit, and
(d) it is hereby further ordered and decreed that, in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree that the defendant shall thenceforth stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property described in the Schedule annexed hereto and shall, if so required, deliver up to the plaintiff quiet and peaceable possession of the said property; and that the parties shall be at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
49. Let a preliminary decree be drawn accordingly.
50. List on 25.01.2020 for further proceedings.
Digitally signed by HARGURVARINDERHARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.11.11 16:13:16 +0530 Pronounced in the open Court (Hargurvarinder Singh Jaggi) on November 11, 2019 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No.15835/2016 Page No. 22/22