Delhi District Court
Bank Of India vs M/S. Unimax Builders & Developers (P) ... on 2 September, 2013
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IN THE COURT OF DR. NEERA BHARIHOKE, ADJ1 (SOUTH),
SAKET COURTS, NEW DELHI
SUIT NO. 214/11
IN THE MATTER OF:
BANK OF INDIA,
A BODY CORPORATE CONSTITUTED
UNDER THE BANKING COMPANIES ACT, 1970,
HAVING ITS HEAD OFFICE AT
STAR HOUSE, C5, GBLOCK,
BANDRA KURLA COMPLEX,
BANDRA (EAST) MUMBAI400051
AND A BRANCH OFFICE AMONGST
OTHER PLACES AT:
B6/8, COMMUNITY CENTRE,
SAFDARJUNG ENCLAVE, NEW DELHI110029
THROUGH ITS DULY CONSTITUTED ATTORNEY
PRINCIPAL OFFICER AND
CHIEF MANAGER MR. NARSI RAM MANDAN
...PLAINTIFF
VERSUS
M/S. UNIMAX BUILDERS & DEVELOPERS (p) LTD.
THROUGH ITS CHAIRMAN & MANAGING DIRECTOR
MR. SUMIT KHANNA
B6/4, 2ND FLOOR,
COMMERCIAL COMPLEX,
SAFDARJUNG ENCLAVE,
Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 1 of 10
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NEW DELHI110029
...DEFENDANT
SUIT FOR RECOVERY OF Rs. 8,28,072.16/ UNDER ORDER XXXVII CPC.
Date of Institution: 03.02.2011
Date Reserved for Judgment: 19.08.2013
Date of pronouncement of Judgment: 02.09.2013
JUDGMENT:
1 Vide this judgment, I shall dispose off the present suit filed by the plaintiff for recovery of money under Order XXXVII CPC. 2 Brief facts of the case are as under:
That the plaintiff Bank is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970. Shri Narsi Ram Mandan, who has signed and verified the present plaint and instituted the present suit on behalf of the Plaintiff Bank, is the Chief Manager and Principal Officer of plaintiff Bank.
3 It is the case of the plaintiff that Defendant is a private limited company engaged in the business activity as "Builders & Developers" and maintained a current account no. 60362010000180 in its name with the plaintiff. Defendant vide request letter dated 24.09.2009, requested the plaintiff Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 2 of 10 :3: for grant of Temporary Overdraft of Rs. 7,50,000/ for 10 days only for the purpose of meeting its certain urgent business requirements and also submitted to the plaintiff another letter dated 24.09.2009 to grant the said overdraft limit of Rs. 7,50,000/ against cheque no. 790192 dated 30.09.2009 for a period of 10 days only to which defendant executed Demand Promissory note, Bearer Letter and Letter of Declarations and undertakings all dated 24.09.2009 in favour of the plaintiff.
4 Thereafter, defendant failed to adjust the said overdraft limit within time. Despite repeated requests and reminders, defendant paid no heed. Accordingly plaintiff served the defendant with legal notice dated 29.10.2010, however defendant failed to comply the same. As per books of accounts maintained by the plaintiff, defendant is liable to pay a sum of Rs. 8,28,072.16 with interest and monthly rests from 18.11.2011. Hence this suit has been filed by the plaintiff bank.
5 Summons of the suit were duly served upon the defendant in the prescribed format under Order XXXVII CPC, pursuant to which defendant put his appearance and accordingly summons for judgment were also duly served upon the defendant.
Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 3 of 10 :4: 6 After issuance of summons for judgment, leave to defend was filed on behalf of the defendant. In the leave to defend application it is submitted by the defendant that present suit is not maintainable as the plaintiff has not approached the court with clean hands and no cause of action has arisen against the defendant. .
7 It is further contended by the defendant that the statement of account filed alongwith the suit are not the original but a typed copy, hence statement of account cannot be relied upon as primary evidence as the same is not in accordance with law. It is further submitted that there are certain payments made by the defendant which are not reflected in the statement of account and on this ground the defendant is entitled for an unconditional leave to defend.
8 It is further contended by the defendant that interest approximately one year as calculated by the plaintiff is Rs. 18,101/ which is not @ 17.25% p.a. Compounded at monthly rest and hence it can be presumed that either the rate of interest mentioned in the demand pro note or the entries of statement of account is wrong, which can be established only by leading evidence.
Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 4 of 10 :5: 9 It is further submitted that in the promissory note is written with pen that 5.25% over BPLRMIN 17.25 which suggest that Bank Prime Lending Rate of Bank of India is 12% p.a. Compounded at monthly rests. However, plaintiff has not filed any document to prove that Bank Prime Lending Rate of Bank of India is 12% p.a. Compounded at monthly rests during 20092010 hence present suit cannot be considered under Order XXXVII CPC and the defendant is entitled for unconditional leave to defend and it can be converted into ordinary suit for recovery.
10 It is further submitted by the defendant that rate of interest later on filed by the officials of the plaintiff is not same as agreed by the defendant and that the signature of the defendant was obtained on blank promissory note and same was filled later on by the officials of the plaintiff which is illegal, as such defendant has a substantial defence and triable issue and is entitled to unconditional leave to defend. .
11 Thereafter, reply to the leave to defend filed by the plaintiff in which all the contents of the leave to defend has been denied by the plaintiff and it is prayed that application of the defendant may be dismissed. 12 Arguments advanced by Ld. Counsels for both the parties. Arguments heard. Record perused carefully.
Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 5 of 10 :6: 13 Defendant has submitted that there is no cause of action against him as it has not done anything contrary to law of the land, however, taking of a loan on agreed terms from the plaintiff bank and not returning the same is a breach of contract and is actionable and there does exist cause of action against defendant.
14 Defendant has submitted that the present suit is not maintainable under Order XXXVII CPC. The present suit has been filed on the basis of demand promissory note admittedly executed by defendant in favour of plaintiff and Order XXXVII Rule 1(2) CPC specifically allows summary procedure for suits upon promissory notes. Thus present suit is maintainable under Order XXXVII CPC.
15 Defendant has stated that statement of accounts filed with the suit are not original but a typed copy and since it is secondary evidence, it cannot be relied upon. It is also stated that it is not accompanied by mandatory certificate under Section 2 (8) of Banker's Book of Evidence Act. However, the perusal of statement of accounts filed with the suit shows that statement of account filed with the suit is a computer generated statement and is not a photocopy or typed copy and bears an endorsement in original with respect to certification under Banker's Book of Evidence Act. Thus there is no force in the said submission of the defendant. It is also stated by defendant that statement Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 6 of 10 :7: of account filed with the plaint does not bear his signatures and is forged and fabricated. It is not understandable as to how a statement of account which is computer generated by plaintiff bank can bear signatures of defendant. Defendant has not filed any document nor has made submissions as to how the statement of account is forged and fabricated.
16 Defendant has not denied the grant of Temporary overdraft of Rs. 7,50,000/ in month of September 2009 but has submitted that there are certain payments made by him which are not reflected in the statement of account. Defendant however has not pointed any payment which has been made by him and is not reflected in statement of accounts. During the course of arguments, defendant was specifically asked if there is any payment which he has made but is not reflected in statement of account to which he answered in negative. Thus the said objection/ submission of the defendant is unsustainable. 17 Defendant has raised an objection that in the promissory note it is written with pen that 5.25% over BPLRMIN 17.25 which suggest that Bank Prime Lending Rate of Bank of India is 12% p.a. Compounded at monthly rests. However, plaintiff has not filed any document to prove that Bank Prime Lending Rate of Bank of India is 12% p.a. Compounded at monthly rests during 20092010. The defendant has not denied the execution of the promissory note dated 24.09.2009 where it is specifically promised by the defendant that it Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 7 of 10 :8: promises to pay the plaintiff bank the sum of Rs. 7,50,000/ together with interest on such sum from the date of promissory note @ 5.25% over BPLR MIN 17.25. In the agreement dated 24.09.2009 executed by the defendant, there is specific mention of endorsement of this demand promissory note for Rs. 7,50,000/ dated 24.09.2009 in clause 3 of the agreement. Under Clause 6 of the said agreement dated 24.09.2009, defendant specifically agreed that the interest payable by him shall be calculated at the rate of interest mentioned in the said demand promissory note and/or mentioned in the loan agreement / s or at such other rates as the bank may specify generally from time to time on the notice board of the branch concerned or in the newspaper for the general information of its customers and no specific notice in the change of interest shall be required to be given to the plaintiff. In view of this undertaking given by the defendant, the objection raised by the defendant is frivolous and does not raise any triable issue.
18 Defendant has also submitted that the rate of interest in the promissory note was filled by the officials of plaintiff later on and it is not the same as agreed by him. He has further stated that bare perusal of promissory note will prove that his signatures were obtained on blank promissory note which was filled later on by the officials of the plaintiff. The plaintiff is a body corporate in the business of banking and all its documents are always printed and are filled at a later stage for the purpose for which the documents are Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 8 of 10 :9: printed. The promissory note is dated 24.09.2009. Signatures of the defendant are not disputed. Defendant has also not denied the availing of temporary overdraft facility by him. With respect to the plaintiff bank filling up the rate of interest on its own at a later date, it is pertinent to note that about four years have passed but plaintiff has filed no police complaint or any other complaint to higher officials of the bank with respect to being coerced by the officials of the plaintiff bank to sign on the blank forms. Thus, the contention of the defendant is an afterthought to evade paying its liability. The defendant is raising frivolous and baseless submissions to evade his liability to pay the amount claimed through the present suit.
19 In view of these observations, the defendant has been unable to raise any triable issue and accordingly his application for leave to defend is dismissed and plaintiff is entitled to a decree. Accordingly, decree is passed in favour of plaintiff and against the defendants for a sum of Rs. 8,28,072.16/. The plaintiff has prayed for pendente lite and future interest @ 17.50% per annum with monthly rests from the date of filing of the suit till full and final realisation of the decreetal amount. However, the said rate of interest is very high and in my considered opinion, the pendente lite interest and future interest @ 12% shall serve the interest of justice. This court is accordingly granting pendente lite interest and future interest @ 12% per annum from the date of filling of the suit till the date of realisation of the amount. Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 9 of 10 :10: 20 Hence suit of the plaintiff is decreed for the sum of Rs. 8,28,072.16/ along with pendente lite interest and future interest @ 12% per annum till realisation of the amount. No order as to costs. Decree sheet be drawn accordingly.
21 File be consigned to Record Room after necessary compliance.
Announced in the open court (DR. NEERA BHARIHOKE)
on 02.09.2013. ADJ1 (SOUTH) SAKET COURTS
Bank of India Vs Unimaxx Builders & Dev. Pvt. Ltd. Page 10 of 10