Delhi District Court
Syndicate Bank vs Sh. Ram Kishan Saini (Deceased) on 18 February, 2013
IN THE COURT OF MS. SHILPI JAIN:
CIVIL JUDGE-7 (CENTRAL) : DELHI
Civil Suit No. : 1056/11/04
Unique Case ID No : N.A.
In the matter of:
Syndicate Bank
A Body corporate constituted under the
Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1970 Having its Head
Office at Manipal, South Kanara Karnataka State,
With one of its Branches at 43, Rani Jhansi Road
New Delhi-110055 .............. Plaintiff
Versus
1. Sh. Ram Kishan Saini (deceased)
S/o Sh. Jhamman Lal
represented through his Lrs
1 (a) Smt. Kusum Saini
W/o Late Sh. Ram Kishan Saini
1 (b) Sh. Jitender Saini
S/o Late Sh. Ram Kishan Saini
1 (c) Ms. Meenakshi Saini
D/o Late Sh. Ram Kishan Saini
All R/o 4890, Laddu Ghati
Paharganj
New Delhi- 110055.
2. 2 (a) Smt. Madhu Behal
W/o Late Sh. Lalit Mohan Behal
2 (b) Master Hitesh Behal (Minor)
S/o Late Sh. Lalit Mohan Behal
2 (c) Master Sanam Behal (Minor)
S/o Late Sh. Lalit Moha Behal
2B & 2C are represented through their
Mother and natural guardian Smt. Madhu
Behal W/o Late Sh. Lalit Mohan Behal
R/o F-6, Aram Bagh
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 1/10
MCD Staff Quarters
Pahar Ganj, New Delhi-110055
Also at:
7/232, Geeta Colony
Delhi- 110031
3. Sh. Y.B. Sharma (deceased)
S/o Sh. Bal Swaroop
Representative through his Lrs
3 (a) Smt. Shanti Devi
W/o Late Sh. Y.B. Sharma
3 (b) Sh. Rakesh Kumar
S/o Late Sh. Y.B. Sharma
3 (c) Sh. Mukesh Kumar
S/o Late Sh. Y.B. Sharma
3 (d) Sh. Raj Kumar
S/o Late Sh. Y.B. Sharma
3 (e) Sh. Ram Kishan
S/o Late Sh. Y.B. Sharma
All r/o 2018, Kinari Bazar
Delhi- 110006 ............. Defendants
Date of institution of the Suit : 24.02.2004
Date on which order was reserved : 18.02.2013
Date of decision : 18.02.2013
SUIT FOR RECOVERY OF RS. 73,152/-
JUDGMENT :-
1. Present is a suit seeking recovery of Rs. 73,152/- on the averment that plaintiff is a Nationalized Bank and is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and the defendant No. 1 approached the plaintiff bank for grant of loan of Rs. 60,000/- vide application dated 23.10.2000 for domestic purpose. Late Sh. Lalit Mohan and defendant No. 3 offered themselves as Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 2/10 guarantors for repayment of loan.
2. It is averred that considering the request of defendants, the plaintiff bank sanctioned and granted the loan of Rs. 53,000/- on 25.10.2000 and the defendant executed the following security documents and delivered the same to the plaintiff bank:-
1. Consent letter to declare the names of defendants in defaulter list executed by defendants.
2. Receipt in Form OG-28 A and B dated 25.10.2000 executed by defendant No. 1 for Rs. 53,000/-.
3. Agreement for term loan dated 25.10.2000 executed by defendants.
3. It is averred that Sh. Lalit Mohan has died and as such his legal heirs who are defendants No. 2A to 2C are impleaded as defendants as they have succeeded to the estate of Late Sh. Lalit Mohan Behal.
4. The above documents were duly filled, read over the explained to the defendants and they put their signatures on these documents voluntarily.
5. In order to secure the loan amount granted to defendant No. 1, deceased Sh. Lalit Mohan Bahel and defendant No. 3 guaranteed repayment of amount due from defendant No. 1.
6. After availing the aforesaid loan, the defendants failed to pay monthly installments and neglected to regularize the said account despite repeated requests. The plaintiff bank demanded the repayment of the amount due through demand notice dated 02.07.2003 but of no avail.
7. According to the shadow account ledger a sum of Rs. 73,152/- is due and payable by the defendants to the plaintiff.
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 3/10
8. It is further averred that defendants are jointly and severally liable to pay the suit amount as the defendant No. 1 being principal borrower and defendant No. 2A to 2C being legal heirs of guarantor and defendant No. 3 being guarantor. Hence the present suit.
9. In Written Statement filed on behalf of the defendant No. 2A and other minor defendants 2B and 2C through natural guardian Smt. Madhu Behl, it is submitted that suit is illegal as whole as no cause of action accrued to the plaintiff against the defendant No. 2A to 2C for filing the present suit. The defendant No. 2A is oblivious to or unaware of any loan lent out to defendant No. 1 or if the husband of defendant No. 2A had ever stood as guarantor for defendant No. 1 during any loan proceedings. The defendant No. 2A being widow is not liable to pay the loan amount as alleged in the suit and also the defendant No. 2A has not inherited or acquired any state or assets and liabilities of her deceased husband.
10. On merits defendant vehemently denied all the contentions of the plaintiff and averred that they had no knowledge of the alleged loan or such documents nor did they sign the alleged or any other documents mentioned in the plaint and never visited the plaintiff bank ever.
11. It is further submitted that a false suit has been instituted against the defendants without any substance.
12. It is prayed that suit be dismissed.
13. In replication filed on behalf of the plaintiff to the Written Statement of defendants No. 2A, 2B and 2C, plaintiff vehemently denied all the contentions of the defendant and reiterated and reaffirmed the contents of the plaint.
14. During pending of the case an application U/o 22 Rule 4 CPC for Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 4/10 impleding Lrs of the defendant No. 1 and defendant No. 3 moved on behalf of the plaintiff. However, Ld. Predecessor treated it as application U/o 1 Rule 10 CPC as defendant No. 1 and 3 have expired before the filing of present suit and allowed the application thereby impleading following Lrs of defendant No. 1 and defendant No. 3 as party to present suit in the capacity of defendant.
15. Lrs of defendant No. 11. Smt. Kusam Saini (W/o Late Sh. Ram Kishan Saini)
2. Sh. Jitender Saini (S/o Late Sh. Ram Kishan Saini)
3. Ms. Meenakshi Saini (D/o Late Sh. Ram Kishan Saini)
16. Lrs of defendant No. 3.
1. Smt. Shanti Devi (W/o Late Sh. Y.B. Sharma)
2. Sh. Rakesh Kumar (S/o Late Sh. Y.B. Sharma)
3. Sh. Mukesh Kumar (S/o Late Sh. Y.B. Sharma)
4. Sh. Raj Kumar (S/o Late Sh. Y.B. Sharma)
5. Sh. Ram Kishan (S/o Late Sh. Y.B. Sharma)
17. Thereafter, Lrs of defendant No. 1 and the Lrs of defendant No. 3 failed to file Written Statement and were proceeded ex- parte.
18. On the basis of the pleadings of the parties following issues were framed by Ld. Predecessor on 07.02.2006:-
1. Whether the plaintiff is entitled for recovery of Rs. 73,152/-? OPP.
2. Whether plaintiff is entitled for any interest, if yes, at what rate? OPP.
3. Whether there is no cause of action in favour of plaintiff and against defendants No. 2A to 2C? OPD.
4. Relief.
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 5/10
19. Plaintiff has examined one witness in order to establish its case who was duly cross- examined by Ld. Counsel for the defendant and defendant examined one witness on behalf of D-2A, 2B and 2C in order to establish their case who was duly cross- examined by Ld. Counsel for the plaintiff.
20. Final arguments heard on behalf of both the parties and perused the record carefully.
21. Issue wise findings of this court is given below:-
22. ISSUE NO. 1.
"Whether the plaintiff is entitled for recovery of Rs. 73,152/-? OPP."
The onus to prove this issue was on plaintiff and plaintiff bank has examined Sh. Raj Singh, assistant Manager, as its sole witness, who reiterated the contents of plaint in affidavit Ex. PW-1/A and exhibited following documents:-
a) Photocopy of power of attorney in favour of Sh. N. Krishan Menthy, as Ex. PW-1/1.
b) Original loan application form as Ex. PW-1/2 and application of guarantee as Ex. PW-1/3.
c) Process note dated 23.10.2000 as Ex. PW-1/4.
d) Original consent letter executed by defendant No. 1, late Sh. Lalit Mohan Behl and defendant No. 3 as Ex. PW-1/5.
e) Agreement of term loan dated 25.10.2000 as Ex. PW-1/6.
f) Receipt dated 25.10.2000 as Ex. PW-1/7.
g) Copy of legal demand notice dated 02.07.2003 as Ex. PW-1/8, postal receipts as Ex. PW-1/5 to Ex. PW-1/15. Certificate of posting as Ex. PW-1/16. AD card as Ex. PW-1/17.
h) Statement of accounts duly certified as per bankers book of Evidence Act as Ex. PW-1/8.
i) Statement of accounts of NPL account No. DL-18/02 as Ex.
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 6/10 PW-1/19.
j) Statement of account of shadow account ledger as Ex. PW-1/20.
PW-1 was duly cross- examined by Ld. Counsel for defendant No. 2A, 2B and 2C and during cross- examination which was conducted on 31.08.2007. PW-1 deposed that "I have not been given any authorization or power of attorney in my favour by the bank to depose in the suit. I have not been authorized by plaintiff bank to depose in court in writing."
Aforesaid deposition already shows that PW-1 was not duly authorized by any board of resolution to depose on behalf of the plaintiff bank in the court of law. As such, his testimony on behalf of plaintiff bank cannot be considered on behalf of plaintiff bank.
PW-1 further deposed that "I have personal knowledge regarding aforesaid suit. I was holding the post of clerk when the loan in question was sanctioned and disbursed. I do not have any personal knowledge in the aforesaid suit besides what is written in the record of bank. (vol.) the loan transaction had taken place in my presence".
Aforesaid testimony contains vital contradiction as at one point PW-1 is saying that he has personal knowledge about suit and at another point PW-1 is saying that he does not have any personal knowledge about the present case. Therefore, testimony of this witness is bad because of such contradicting statements. Furthermore, he has deposed that he was a clerk at the time of the loan transaction and transaction took place in his presence. This deposition does not inspires confidence as PW-1 was not a person from loan department and it is highly improbable that loan transaction took place in presence of a clerk instead of persons posted in the loan department of plaintiff bank.
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 7/10 PW-1 further deposed that "when the bank had filed the suit then I came to know about Sh. Lalit Mohan Behl that he is also liable for liability of Mr. Ram Kishan Saini and also that Sh. Lalit Mohan Behl legal heirs are also liable to pay the loan of Sh. Ram Kishan Saini".
This deposition categorically reveals that PW-1 has no personal knowledge about the present case and loan transaction and he came to know about it after the filing of present suit. However, in cross- examination conducted on 09.09.2009 PW-1 deposed that " all loan documents and security documents were signed in my presence. Both the guarantors namely Sh. Y.B. Sharma and Sh. Lalit Mohan Behl came on the same date in the bank and both had signed and executed the loan documents in my presence."
This deposition is again contradictory to earlier deposition wherein PW-1 deposed that he came to know the liability of Sh. Lalit Mohan Behl and his Lrs at the time of filing of suit. This reveals that PW-1 is trying to cover up the lacuna's of cross- examination held on 31.08.2007 and this time PW- 1 came to court after getting full knowledge about the present case. It appears that PW-1 is tutored witness and therefore his testimony cannot be relied upon.
Furthermore, PW-1 has also made significant admission regarding the documents of loan transaction filed on behalf of plaintiff bank. PW-1 has deposed that "Ex. PW-1/4 ( process note dated 23.10.2000) does not bear signature of Sh. Lalit Mohan Behl. It is correct that PW-1/5 (original Consent letter) is undated. Ex. PW-1/7 (receipt dated 25.10.2000) also does not bear the signatures of Sh. Lalit Mohan Behl."
In view of aforesaid admission and for aforesaid reasons i.e. documents being undated and unsigned, plaintiff failed to establish his case by way of documentary evidence.
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 8/10 Testimony of the sole witness of plaintiff miserably fails to prove the case of plaintiff bank because of aforesaid discussed various significant contradictions and material admissions regarding documents exhibited on behalf of the plaintiff bank.
Furthermore, perusal of aforesaid exhibited documents reveals that Ex. PW-1/2 i.e. original loan application form does not bear name of Sh. Lalit Mohan Behl and Ex. PW-1/3 does not contain name of principal borrower It is an unfilled document which cannot be linked with Ex. PW-1/2. Exhibiting the document is one thing and proving the same is another. In Ex. PW-1/4, process note dated 23.10.2000 only name of Sh. Y.B. Sharma is mentioned in the column of proposed surety and name of Sh. Lalit Mohan Sharma is mentioned in the column of recommendation only. Furthermore, admittedly this document is not signed by any of the defendants. Ex. PW-1/5 is an undated document. Ex. PW-1/7 is a unilateral document neither signed by any Sh. Y.B. Sharma and Sh. Lalit Mohan Behl nor witnessed by any of the alleged sureties. Ex. PW-1/6 agreement for term loan does not bear seal or stamp of bank and not signed by any authorized person on behalf of bank. Therefore, it cannot be held by any stretch of imagination that Ex. PW-1/6 was executed between plaintiff bank and Sh. R.K. Saini, Sh. Y.B. Sharma, Sh. Lalit Mohan Behl. Perusal of this document reveals that plaintiff bank is not a party to this agreement.
In view of aforesaid discussion, material contradiction and admission in testimony of PW-1 and documents placed on record this issue is decided in favour of defendants and against the plaintiff.
23. ISSUE NO. 2.
"Whether plaintiff is entitled for any interest, if yes, at what rate? OPP."
Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 9/10 In view of decision on issue No. 1 this issue is also decided in favour of the defendant and against the plaintiff.
24. ISSUE NO. 3.
"Whether there is no cause of action in favour of plaintiff and against defendants No. 2A to 2C? OPD."
The term 'cause of action' has acquired a settled judicial meaning. It refers to the necessary conditions for maintenance of suit, including not only the infracion of the right but the infracion coupled with the right itself. 'Cause of action' consist of a bundle of facts which gives ground to enforce a legal injury for redressal in the court of law. It refers to the facts which the petitioner must prove so as to get a judgment in his favour.
To decide whether a suit has a subsisting cause of action or not, the court has to look at the plaint and nothing else. After perusal of the plaint as well as the entire record, the court is convinced that there is a valid cause of action in favour of the plaintiff. Therefore, it cannot be said that the present suit is devoid of any cause of action.
25. ISSUE NO. 4.
"Relief"
In view of decision on aforesaid issues suit of the plaintiffs is dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 18th FEBRUARY 2013 (SHILPI JAIN) CJ-07 (CENTRAL):DELHI Syndicate Bank Vs. Sh. Ram Kishan Saini & Ors. 10/10