Delhi District Court
Bank Of India vs M/S Cool Spring & Another on 31 January, 2011
1
IN THE COURT OF SH. RAVINDER KUMAR PANDEY, CIVIL
JUDGE TIS HAZARI COURTS, DELHI
Suit No. 237/08
IN THE MATTER OF
BANK OF INDIA, a body corporate
duly constituted under the banking
companies (Acquisition and transfer
of undertakings) Act, 1970, having its
head office at Star House, GBlock,
Plot No. C5, BandraKurla Complex,
Bandra (East), Mumbai400051 and
inter alia, Branch office amongst other
places at Saket, New Delhi.
Through constituted attorney Sh. S.K. Sareen.
..... PLAINTIFF
VERSUS
1. M/S COOL SPRING & ANOTHER
A Proprietorship concern, through
its proprietor Mr. Rahul Chopra
having office at D2/2594, Vasant
Kunj, New Delhi110070.
2. Mr. Rahul Chopra
S/o Sh. H.C. Chopra,
D2/2594, Vasant Kunj,
Suit No. 237/08 page 1 of 8
2
New Delhi110070.
Also at:
262, SectorA, PocketC,
Vasant Kunj, New Delhi. .... DEFENDANT
Date of institution: 14.03.2008
Date on which judgment was reserved: 15.01.2011
Date of pronouncement of judgment: 31.01.2011
SUIT FOR RECOVERY OF RS. 2,51,156/
JUDGEMENT
1. This is a suit for recovery of Rs.2,51,165/ (Rupees two lakh fifty one thousand one hundred sixty five only).
2. As per the case of Plaintiff, Plaintiff bank is a body Corporate constituted under the Banking Companies ( Acquisition And Transfer of under taking) Act 1970 having its head office in Mumbai and one office branch office at Saket, New Delhi. Defendant no. 1 has been engaged in business activities of sell and service of air conditioners, coolers and inverters to its various customers. On the request of defendant no. 2 as Suit No. 237/08 page 2 of 8 3 proprietor of defendant no. 1 the plaintiff had opened current account no. 60979 in the name of defendant no. 1. This account has been operated by defendant no. 1 from time to time and defendant no. 1 as its proprietor issued a cheque on 09.05.2005 of Rs. 1 lacks 30 thousands favoring himself and requested the plaintiff to grant him temporary over draft with oral undertaking that defendant no. 2 needs the fund for some urgent business commitment and shall be liquidating the same at early date. In view to accommodate, and to complete urgent business commitment of the defendants, the plaintiff permitted temporary overdraft though there was not sufficient balance in the account of defendant no. 1. This balance has however further continued as such, but defendant no. 2 intentionally and willfully neglected to liquidat the liabilities with interest as per banks norms were debited, resulting the account becoming NPA on 01.08.2005 and in spite of various visits by officials by plaintiff and in spite of various promises by defendants, the defendants did not deposited amounts to liquidate the dues of plaintiff bank. Defendant no. 1, has, however, been operating the grant account from time to time and there has been regular debit/credit entries but temporary over draft being provided was not liquidated as sufficient amount was not in the account. The amount availed and utilized are duly reflected in the statement of amount maintained by Suit No. 237/08 page 3 of 8 4 plaintiff in its books of account in its usual course of business. When after the various reminder by plaintiff, defendants has not taken any proper steps to liquidate the outstanding dues of the plaintiff, the plaintiff issued legal notice dated 03.03.2008 but defendants did not replied the notice nor liquidated the dues of plaintiff. Hence this suit.
3. When despite service defendants did not appeared, defendants were proceeded Ex parte vide order dated 15.07.2008 but later on the Ex parte order was set aside by my Ld. Predecessor vide order dated 31.03.2009 and defendant was allowed to file WS.
4. In his written statement defendants raised the preliminary objection that plaint has not been verified by competent authority and as such the suit of the plaintiff is liable to be dismissed. It is further averred by the defendants that they have not requested the plaintiff bank to grant temporary over draft with verbal undertaking to meet the urgent business need. The defendants issued the cheque to the plaintiff bank with the impression that they had sufficient money in their account and the plaintiff bank honored the cheque without seeing the balance amount. Plaintiff bank was not careful in its business dealings and now plaintiff bank is Suit No. 237/08 page 4 of 8 5 thrusting upon its negligence on defendants by taking plea that defendants requested plaintiff bank to grant temporary overdraft with verbal undertaking and as such plaintiff bank is not entitled to recover the same amount with interest and that too at higher rate. Defendants further averred that suit of plaintiff is without cause of action as there is no evidence exist against the defendants so suit is liable to be dismissed. Defendants further averred that defendant no. 1 is running through defendant no.2 a current account in the plaintiff bank and defendant no. 2 is proprietor of defendant no.1 & defendant no.2. Defendant no.1 issued a check on 09.05.2005 for Rs. 1 lacks 30 thousands favouring himself. It is further on averred that defendants are not liable to Rs. 2,51,156 to the plaintiff.
5. After the completion of the pleadings of parties following issues were framed on
(i)Whether plaintiff is entitled for recovery of Rs. 2,51,156/ as prayed for?OPP
(ii)Whether plaintiff can issue and entitled for interest if so and at wht rate and for which period?OPP
(iii) RELIEF Suit No. 237/08 page 5 of 8 6
6. In support of his case, plaintiff examined Mr. Deepak Bhargava , Senior Manager of plaintiff bank as PW1. PW1 has led his evidence by way of affidavit in which he supported averment made in plaint. PW1 got exhibited certain documents i.e power of attorney i.e original cheque no. 157101 Ex PW1/1, certified copy of statement of account ExPW1/2, legal notice ExPW1/3, power of attorney executed in favor of Sh. S.K Sareen marked 'A'.
On other hand, defendant no. 2 stepped himself in witness box as DW1 and led his evidence by way of affidavit. It is averred by DW1 that defendant no.2 is proprietor of defendant no.1 and opened a current account with plaintiff bank, It is further averred that the current account in name of defendant no. 1 was being operated by defendant no. 2 and in usual course of business, defendant no.2 issued cheque on behalf of defendant no.1 favoring himself with impression of sufficient balance in account and plaintiff bank encashed cheque without seeing balance in the account. It is further averred by DW1 that temporary OD is granted against the deposit of F.D. or cheque and that too upto 90 % of F.D or cheque after completing formality in writing and in this case defendant no. 2 has not deposited cheque or F.D and as such question of granting Suit No. 237/08 page 6 of 8 7 temporary overdraft does not arise. After recording statement matter was fixed for final arguments.
7. I have heard the Ld counsel for plaintiff as well as counsel for defendant and peruse matter available on record. My issue wise finding is as follows: 8. ISSUE NO. 1 & 2 Whether plaintiff is entitled for recovery of Rs.2,51,156 as prayed for?OPP Whether plaintiff is entitled for interest if so at what rate and for what period?OPP Both the issues no.1 and 2 are taken together being interconnected. The onus to prove these issues is upon plaintiff. It is averred by PW1 that Defendant no. 1 is engaged in business activities of service of Air conditioners and at request of defendant no. 2 as proprietor of defendant no. 1 plaintiff opened current account in name of defendant no.1 which has been operated by defendant no.1. Defendant no. 2 as his proprietor issued cheque on 9.5.2005 for Rs.1,30,000/ favoring himself and on oral undertaking of defendant no. 2 plaintiff granted temporary overdraft to defendant no. 1.
Suit No. 237/08 page 7 of 8 8 PW1 further averred that on date of filing of suit defendants were liable for Rs.2,51,156/. PW1 supported averment by producing original cheque Ex PW1/1, legal notice as ExPW1/3 and statement of account ExPW1/2. On other hand, defendants in their WS as well as in affidavit of DW1 has not denied fact that cheque was issued by defendant no. 1 in favor of defendant no.2 Ex PW1/1 and legal notice Ex PW1/3. DW1 has only disputed the averment of plaintiff that defendants had not requested plaintiff for granting temporary overdraft and it was plaintiff that due to its own negligence granted temporary overdraft. Therefore defendants are not liable for interest as claimed by plaintiff on cheque amount.
I am convinced with the averments of plaintiff that plaintiff has granted overdraft of Rs.1,30,000/ on presentation of cheque by defendants. It is admitted fact on behalf of defendant that they have utilised cheque amount Ex PW1/1. The issuance of legal notice Ex PW1/3 in regard to payment of overdraft is also not disputed by defendants. There was no effective cross examination done on behalf of defendant of PW1 on any point or fact deposed by plaintiff. Only some suggestions were put to PW1 which were denied by him. In other words, testimony of PW1 could not be demolished in cross examination. On the other hand defendant himself admitted that they have received cheque amount and utilized same, they Suit No. 237/08 page 8 of 8 9 disputed the interest claimed on cheque amount by the plaintiff. In view of above discussion, issue no. 1 is decided in favor of plaintiff and against defendants. So far as issue no.2 is concerned plaintiff has claimed the future interest @ 17.50 % p.a from date of filing of suit till its realisation of decreetal amount in his prayer clause of plaint. I am of the view that such inexorbitant rate of interest is not prevaling in the market. Therefore, plaintif is entitled foor future interest @ 6 % p.a from date of filing of suit till its realization.
9. RELIEF In view of finding made in issue no.1 and 2 suit of plaintiff is decreed and decree for recovery of Rs.2,51,156/ is passed in favor of plaintiff and against defendants along with pendente lite aand future interest @ 6% p.a from date of filing of suit till its realization. Cost of suit is awarded in favor of plaintiff and against defendants. Both the defendants are jointly and severally liable for whole decreetal amount. Decree sheet be drawn accordingly. File be consigned to record room.
Announced in open court
today i.e on 31.01.2011
Total pages (1 to 8) (RAVINDRA KUMAR PANDEY)
CIVIL JUDGE / CENTRAL 04/31.01.2011
Suit No. 237/08 page 9 of 8
10
Suit No. 237/08
31.01.2011.
Present: None.
Vide my separate judgement announced and dictated in the open Court, the suit of the plaintiff is is decreed and decree for recovery of Rs.2,51,156/ is passed in favor of plaintiff and against defendants along with pendente lite aand future interest @ 6% p.a from date of filing of suit till its realization. Cost of suit is awarded in favor of plaintiff and against defendants. Both the defendants are jointly and severally liable to pay the decreetal amount. Decree sheet be drawn accordingly. File be consigned to record room.
(RAVINDRA KUMAR PANDEY)
CIVIL JUDGE / CENTRAL 04/31.01.2011
Suit No. 237/08 page 10 of 8