Delhi District Court
Syndicate Bank vs Sh. Ramesh Kumar Chopra on 1 December, 2016
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
C.S. No.: 125/16
Syndicate Bank,
B.O: Mayur Vihar,
Mayur Vihar Phase1,
Delhi110091,
Through its
Branch Manager
.......Plaintiff
Versus
1.Sh. Ramesh Kumar Chopra, Proprietor of M/s Anu Printers & Packers, 577, PocketV, Mayur Vihar Phase1, Delhi110091.
...Defendant no.1
2. Sh. Virender Chopra, S/o Sh. V.N. Chopra, A28, Laxmi Park, Chander Nagar, Delhi110051.
...Defendant no.2
3. Smt. Anita Chopra, W/o Sh. R.K. Chopra, 577, PocketV, Mayur Vihar Phase1, Delhi110091.
...Defendant no.3
4. Smt. Sudershan Chopra, CS No.: 125/16 Page 1 of 14 W/o Sh. V.N. Chopra, B13, Laxman Park, Chander Nagar, Delhi110051.
...Defendant no.4
Date of institution : 01.05.2009
Date of reserving judgment : 01.12.2016
Date of pronouncement : 01.12.2016
JUDGMENT
1. The present suit for recovery of Rs.7,17,890/ has been filed by the plaintiff against the defendant.
2. Briefly stated the facts of the case are that the plaintiff is a body Corporate constituted under the Banking Companies Acquisition & Transferring of Undertaking Act, 1970 having its Head Office at Manipal and one of its branch office amongst other place situated at Mayur Vihar, Phase1, Delhi and is carrying the business of banking. It has been further averred that Sh. Anand Bhushan Chadha is a true and lawful attorney of plaintiff bank who has instituted the present suit and sign and verify plaints, affidavits and to execute all other documents or done all acts connected with legal proceedings and also make the statements before the court on behalf of the plaintiff bank. It has been averred by the defendant no.1 is a proprietor of firm M/s Anu Printers & Packers having its business of Printing at CS No.: 125/16 Page 2 of 14 21, Kotla Village, Mayur Vihar, Phase1, Delhi who has approached the plaintiff bank for grant of SOD facility as working capital for running its business vide loan application. It has been further averred that plaintiff bank after due verification sanctioned SOD facility to the extent of Rs.5,00,000/ on various terms and conditions as mentioned in Composite Hypothecation Agreement. It is further averred that limit was personally guaranteed by defendant no.2 to 4. It has been further averred that the loan shall be repayable on demand alongwith 2% over and above the PLR raising or falling therewith from time to time with monthly rests. It has been further averred that SOD limit of Rs.5,00,000/ was sanctioned, lent and released by the plaintiff bank and availed by defendant no.1 on 06.05.2006 as per various terms and conditions and the composite hypothecation agreement and other documents were executed by defendant no.2 to 4. viz
(i) Composite Hypthecation Agreement of Rs.5,00,000/ executed by defendant no.1 dt. 06.5.2006
(ii) Guarantee Agreement for Rs.5,00,000/ executed by defendant no.2 on 06.5.2006 .
(iii) Guarantee Agreement for Rs.5,00,000/ executed by defendant no.3 on 06.5.2006.
CS No.: 125/16 Page 3 of 14(iv) Guarantee Agreement for Rs.5,00,000/ executed by defendant no.4 on 06.5.2006.
3. It has been further averred that pursuant to the sanction of OD limit, an account was opened in the name of firm i.e. defendant no.1 in the books of accounts of plaintiff bank. It has been further averred that after availing the OD limit to extent of Rs.5,00,000/ defendant no.1 did not remain regular towards the operation of the OD limit account even for a period of two years and according reminder dt, 28.10.2007 and another reminder on 06.02.2008 were sent to defendant no.1 to regularize the account which was overdrawn. However, defendant no.1 failed to regularize the account. It has been further averred that plaintiff bank served a legal notice dt. 04.04.2009 upon the defendants but the defendants paid no heed. It is further averred that the account of the defendant declared NPA on 31.03.2008. It has been averred that as per the accounts maintained by the plaintiff bank, a sum of Rs. 7,17,890/ is liable to be paid by the defendants jointly and severally to the plaintiff bank. In these premises, plaintiff bank prays for passing a decree for Rs.7,17,890/ against the defendant no.1 and defendant no. 2 to 4 jointly and severally along with pendentelite and future interest along with cost.
CS No.: 125/16 Page 4 of 144. Upon filing of the present suit, summonses were issued to the defendants. Defendants no.1 and 3 served with the same but the defendant no.2 & 4 could not be served by ordinary means. Vide order dated 23.02.2012, the defendant no.2 & 4 were ordered to be served by way of publication in the newspaper 'The Statesman'. Vide order dated 12.04.2012, it was observed by the court that the defendant no.2 & 4 were served by way of substituted service in the newspaper 'The Statesman' dated 05.4.2012 but the defendant no.2 & 4 did not appear and in these circumstances, vide order dated 12.04.2012, defendants no.2 and 4 were proceeded exparte.
5. Written statement was filed by the defendant no.1 and 3 wherein he has taken preliminary objections such as the suit has no cause of action; plaintiff bank fraudulently forged and fabricated the documents allegedly executed by the defendants; plaintiff bank has intentionally and deliberately concealed and suppressed the material facts and is guilty of suppersio veri and suggestion falsi; plaintiff bank has not approached the defendants with clean hands. On merits, the defendant averred that denied the contents of the plaint in toto and as an explanatory fact, defendant no.1 has stated that he requested the plaintiff bank for OD but the plaintiff bank turned down his CS No.: 125/16 Page 5 of 14 request due to which the defendant no.1 suffered lot of losses and loss of reputation. It has been further averred that the plaintiff had taken signatures of the defendants on the blank form etc. viz application form, composite hypothecation agreement form and ASD6 forms and letters without letting them know about the contents of the same and have later on forged the said forms by filing them up with false and frivolous entries. Rest of the contents of the plaint have been denied by the defendants no.1 and 3 in the written statement.
6. Replication to the written statement of defendants no.1 and 3 filed by the plaintiff bank wherein all the averments made in the plaint have been reiterated and reaffirmed whereas those made in the written statement have been denied.
7. The court vide order dated 06.09.2012 framed following issues: (1) Whether the plaintiff is entitled to recovery of the amount as prayed for ? OPP.
(2) Whether the plaintiff is entitled to the interest as prayed for ? OPP (3) Whether the suit of the plaintiff is not maintainable ? OPD (4) Relief.
8. In order to prove its case, the plaintiff bank examined Sh. Anil Kumar Gupta, Senior Branch Manager as PW1 who tendered CS No.: 125/16 Page 6 of 14 his examination in chief by way of affidavit Ex. PW1/A which is on the line of the averments mentioned in the plaint. PW1 has also relied upon documents Ex. PW1/1 to Ex. PW1/26. This witness was crossed examined on behalf of defendants no.1 and
3. Since defendants no.2 and 4 were exparte, one appeared on their behalf to cross examine PW1. Thereafter, vide separate statement, ld. Counsel for the plaintiff closed the evidence on 12.09.2013.
9. To rebut the case of the plaintiff, defendants no.1 and 3 did not examine any witness despite sufficient opportunities having been granted to them and the court vide order dated 24.11.2016 closed the right of defendants no.1 and 3 to lead evidence.
10.I have heard ld. counsel for the plaintiff and carefully perused the record. None appeared on behalf of defendants no.1 and 3 to address arguments.
11.My issuewise findings are as under: Issue no.1 Whether the plaintiff is entitled to recovery of the amount as prayed for ? OPP.
12.Onus to prove this issue was upon the plaintiff. To prove this issue, Sh. Anil Kumar Gupta examined himself as PW1/A. He has relied upon the documents so filed by the plaintiff bank CS No.: 125/16 Page 7 of 14 which have been exhibited as Ex.PW1/1 to Ex.PW1/26. Ex. PW1/1 is application for advance, Ex. PW1/2 is particulars of assets and liabilities of the individual/partners/directors/co obligants/guarantors, Ex.PW1/3 is Process note, Ex.PW1/4 is Letter of Sanction issued by the plaintiff in favour of M/s Anu Printers & Packers, Ex.PW1/5 is Composite Hypothecation agreement executed between the parties, Ex.PW1/6 is guarantee agreement executed by defendant no.2 in favour of the plaintiff, Ex.PW1/7 is guarantee agreement executed by defendant no.3 in favour of the plaintiff, Ex.PW1/8 is guarantee agreement executed by defendant no.4 in favour of the plaintiff, Ex. PW1/9 is letter of undertaking/promise issued by the defendants to the plaintiff bank thereby binding themselves jointly and severally, Ex.PW1/10 and Ex.PW1/11 are consent letters issued by defendants no.1, 2 and 3, Ex.PW1/12 is authority letter issued by defendant no.1 in favour of the plaintiff, Ex.PW1/13 is irrevocable letter of authority issued by defendant no.2 and 3, Ex. PW1/14 is letter issued by the plaintiff to the defendants regarding irregularity in running the OD facility provided to the defendants; Ex. PW1/15 and Ex. PW1/16 are also letters issued by the plaintiff to the defendants in this regard. Ex. PW1/17 is statement of account for the period from 01.08.2006 to CS No.: 125/16 Page 8 of 14 27.04.2009 maintained by the plaintiff bank for the defendants, Ex. PW1/18 is legal notice, Ex. PW1/19 to Ex.PW1/23 are postal receipts and Ex. PW1/24 to Ex. PW1/26 are AD cards. Though defendants no.1 and 3 have taken the plea in the written statement that the plaintiff had taken signatures of the defendants on the blank form etc. viz application form, composite hypothecation agreement form and ASD6 forms and letters without letting them know about the contents of the same and have later on forged the said forms by filing them up with false and frivolous entries. However, during cross examination of PW1, except the mere suggestions given to this witness during cross examination, no question worth the name has been put this witness in this regard and there is no cross examination on behalf of the defendant which could demolish the testimony of this witness.
13.Defendants no.1 and 3 have admitted the execution of the aforesaid documents. Once the defendants admitted the documents, the onus shifts upon them to disprove the documents or to show the circumstances under which the documents were executed by them. In the present case, defendants no.1 and 3 have admitted the execution of the documents regarding OD Limit providing by the plaintiff bank CS No.: 125/16 Page 9 of 14 to the defendants, the onus shifts upon them to prove the circumstances in which they have executed and the onus has to be discharged by leading cogent evidence and not merely by a bald statement however as stated above, defendants no.1 and 3 have not led any evidence despite sufficient opportunities having been granted to them. In this regard, I find support from the judgment passed by the Hon'ble Punjab and Haryana High Court in RSA No.2036 of 2007 (O&M) titled as Niranjan Singh Vs. Ashwani where in it has been held that : "Once the signatures/thumb impression are admitted by the defendant. The onus shifts to the defendant that the agreement to sell was executed by deception and fraud. Defendant has not been able to prove any such deception and fraud. Reliance in this regard may be made in 1991 CCC page 693 Durlab Singh Vs. Nahar Singh and another in which Hon'ble High Court has held that once the signatures are accepted the onus to prove that the agreement to sale was got executed by deception and farad shifts on the defendant. So by placing reliance upon 2004(2) CCC page 186 (Supra) as discussed above, I place reliance on the testimony of the PWs attesting witness Manohar Singh and scribe PW1 Rajan Arora."
14.Further in a case titled as Surjit Singh Vs. Nanak Singh in RSA No.3124/2004, the Hon'ble Punjab and Haryana High Court has held that : CS No.: 125/16 Page 10 of 14 "It is settled proposition of law that if a person admits his signatures on some document then the onus shifts on the person who admitted his signatures on a document to prove that it was obtained on blank papers or was taken undue influence or under pressure."
15.Here, as stated above, in the present case, defendants no.1 and 3 have admitted the execution of the documents regarding OD Limit provided by the plaintiff bank to the defendants. The ratio of the aforesaid judgments squarely applies to the facts of the present case. Thus, the documents regarding the sanctioning of the SOD Limit have been duly proved by PW1.
16.Perusal of the statement of account Ex.PW1/17 shows that as on 31.03.2009 a principal amount of Rs.7,07,231.17 was outstanding against the defendants. There is no cross examination by the defendants on the said aspect also.
17.It is settled preposition of law that if cross examination of a witness is allowed to go unrebutted the same is deemed to be admitted. In this regard, I find support from the judgment titled as 'Srichand and Shivan Das Vs. The State 28 (1985) DELHI LAW TIMES 360 wherein it has been held in para 6 that:
"The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to CS No.: 125/16 Page 11 of 14 any particular point it may safely be accepted as true."
18.Plaintiff has stated in the plaint and affidavit that the defendants after availing the OD limit, defendant no.1 did not remain regular towards the operation of OD account despite reminders sent to the defendant no.1 on 06.02.2008 but defendant no.1 has not shown intention to regularize the account which was overdrawn. Defendants have not denied to have availed the OD limit facility in the written statement specifically. It seems that the defendants after accepting the money of the plaintiff bank started making frivolous and baseless contentions of forged and fabrication of the documents which is without any base.
19.From the above, it is clear that plaintiff has been successfully discharged the onus to prove this issue. Accordingly, issue no.1 is decided in favour of the plaintiff and against the defendants.
20.Issue no.2: Whether the plaintiff is entitled to the interest as prayed for ? OPP
21.Onus to prove this issue was upon the plaintiff. The plaintiff has claimed pendente lite and future interest @14.50% p.a. with monthly interest till payment and/or realization. However, keeping in view the prevailing rate of interests in the CS No.: 125/16 Page 12 of 14 nationalized banks, I am of the considered opinion that the interest of justice would be served if interest @ 10% p.a. is given on the principal outstanding amount to the plaintiff from the date of filing of the suit till realization. Here, I have also taken into consideration Section 34 of CPC.
22.Issue no.3: Whether the suit of the plaintiff is not maintainable ? OPD
23.Onus to prove this issue was upon the defendants. Perusal of the record shows that defendants have neither led any evidence in this regard nor any argument addressed on behalf of the defendants in this regard. Perusal of the record also shows that plaintiff has filed the suit for recovery of the amount on the ground that defendants have availed OD Limit to the extent of Rs. Five Lac but defendant no.1 was not regular towards the operation of the OD Limit account even for a period of two years for which the plaintiff has sent reminders dated 28.10.2007, 06.02.2008 and 23.05.2008 exhibited as Ex.PW1/14 to Ex. PW1/16. The plaintiff has also issued legal notice dated 04.04.2009 to the defendants in this regard exhibited as Ex. PW1/18. Accordingly, in the opinion of the court, the suit of the plaintiff is maintainable. Accordingly, this CS No.: 125/16 Page 13 of 14 issue is decided against the defendants.
24.Issue no.4: Relief
25.In view of the observations made herein, the present suit is decreed in favour of the plaintiff and against the defendants jointly and severally for a sum of Rs.7,07,231.17 along with interest @ 10% p.a. from the date of filing of the suit till realization with costs.
26.Decree sheet be prepared accordingly.
27.File be consigned to record room.
Announced in the open court On 01.12.2016 ( Anurag Sain) Addl. District Judge02 (East) Karkardooma Courts, Delhi CS No.: 125/16 Page 14 of 14 C.S. No.: 125/16 01.12.2016 Present: Sh. Shalini Upadhayay, ld. counsel for the plaintiff.
Defendant is exparte.
Final arguments heard.
Put up for orders at 4:00 p.m. (Anurag Sain) ADJ2, East, Karkardooma Court, Delhi/01.12.2016 01.12.2016 Present: None.
Vide separate judgment announced in the open court today, the present suit is decreed in favour of the plaintiff and against the defendants jointly and severally for a sum of Rs.7,07,231.17 along with interest @ 10% p.a. from the date of filing of the suit till realization with costs. Decree sheet be prepared accordingly. File be consigned to record room.
(Anurag Sain) ADJ2, East, Karkardooma Court, Delhi/01.12.2016 CS No.: 125/16 Page 15 of 14