Delhi High Court
Uco Bank vs Mr. Lachhman Dass Popli on 24 August, 2001
Author: Sharda Aggarwal
Bench: Sharda Aggarwal
ORDER Sharda Aggarwal, J.
1. The plaintiff UCO Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Head office at Calcutta and its Zonal office at Parliament Street, New Delhi and one of the branches at Sadar Bazar, Delhi has filed the present suit for recovery of Rs.6,69,335/- against the defendants. The defendant is the sole proprietor of M/s Popli Traders, 2557, Swaran Gali, Teliwara, Sadar Bazar, Delhi. The defendant had opened his current account on 7th October, 1982 with the Sadar Bazar branch of the plaintiff bank in his business name M/s Popli Traders under his sole proprietorship. At the request of the defendant, the plaintiff bank allowed temporary overdraft facility in his current account against the fixed deposit receipt which he availed. On 19th January, 1991, an overdraft of Rs.7,35,313.83 paise was shown in defendant's account, out of which defendant availed temporary overdraft facility limit of Rs.4,80,000/- against FDRs of Rs. 6,19,000/-. The defendant executed a pronote for Rs.4,80,000/- repayable with interest at the rate of 2% per annum above the deposit rate subject to minimum rate of interest of 12% per annum with quarterly rests. His promissory note was kept as security for the payment of ultimate balance sum remaining unpaid on the overdraft facility provided to the defendant. The defendant's letter dated 19th January, 1991 showed the deposit of FDRs amounting to Rs.5,09,000/-/ The plaintiff bank was also authorised to appropriate the FDRs handed over to them as security towards adjustment of loan granted to M/s Popli Traders. Two separate letter dated 19th January, 1991 was also signed by the defendant showing the deposit of FDRs of Rs.65,000/- and Rs.45,000/- respectively. Thus, total FDRs worth Rs.6,19,000/- were deposited with the plaintiff bank. On 23rd January, 1991, on defendant's depositing a sum of Rs.3,00,000/-, the amount of overdraft was reduced to Rs.4,35,313.83 paise. Again on 30th September, 1991, the defendant's account reflected an Overdraft of Rs.9,90,117.23 paise. Against this overdraft, the plaintiff bank credited a sum of Rs.6,89,290.90 paise being the proceeds of the FDRs reducing the overdraft balance to Rs.3,00,826.23 paise. Despite repeated requests of the plaintiff bank, when defendant failed to adjust the overdraft account, he was served with a legal notice dated 23rd June, 1992 to make the payment of the overdraft with interest. The defendant failed to make the payment despite the service of legal notice. The plaintiff accordingly filed the present suit on the basis of defendants account with them showing an overdraft of Rs.6,69,335/- on 12th October, 1992.
2. Summons of the suit were issued to the defendant but when he could not be served through ordinary process, he was served through substituted service by publication in a newspaper. But despite service, defendant failed to put in appearance and was accordingly proceeded ex-parte. Evidence of the plaintiff was, therefore, taken by way of affidavits. The plaintiff field affidavit of V.N. Kakkar, Senior Manager of Sadar Bazar Branch of plaintiff bank as on the date of filing of the affidavit whereas of P.N. Handa, Manager and of Vijender Kumar, Senior Manager of the bank at the relevant time. An additional affidavit of R.K.Mehra, who was the Senior Manager of the said branch of the bank in September, 1998, was also filed by way of evidence.
3. I have heard Mr. S.R. Kandelwal, learned counsel for the plaintiff and perused the record.
4. The plaint was signed an verified by Vijender Kumar, the then Senior Manager of Sadar Bazar Branch of the plaintiff bank. He was the Principal Officer of the said Branch at that time and he was competent to sign and verify the pleadings. This witness in his affidavit categorically stated that he was holding the General Power of Attorney from the plaintiff bank with lawful authority to institute and to sign and verify the pleadings on behalf of the plaintiff bank vide General power of Attorney dated 28th July, 1982 executed by two Directors of the bank in his favor. The General Power of Attorney has been proved as Exhibit 'P-1'. The Resolution of the Board of Directors of the plaintiff bank of this respect has been proved as Exhibit 'P-2'. The deposition of Vijender Kumar stands corroborated by the affidavits of V.N. Kakkar and P.N. Handa. The plaintiff has thus established that the plaint has been signed and verified and the suit instituted by a duly authorised person.
5. A perusal of the evidence lead by the plaintiff shows that the defendant had obtained overdraft facility in his current bank account with the Sadar Bazar branch of the plaintiff bank against deposit of some FDRs. He availed of the facility but later on became irregular in making deposits and his account started showing huge overdraft amounts. The Account Opening Form, Promissory Note dated 19th January, 1991, defendant's letter of waiver, his letter admitting the pronote as security for repayment of the outstanding amount in the overdraft account etc. have been duly proved on record. The original FDRs, cheques of heavy amount issued by the defendant drawn on the plaintiff bank in his current account have also been proved on record showing that the defendant was availing of the overdraft facility. The statement of account duly certified under the Banker's Books Evidence Act has also been proved and exhibited as 'P-15'. The account shows the adjustment of FDRs of the defendant as on 2nd January, 1992. The witnesses have also deposed in their affidavits that when the defendants despite repeated requests failed to adjust the account, he was served with a legal notice Exhibit 'P-14' and when despite notice defendant failed to adjust the account, present suit was filed. At the time of filing the suit, the defendant's account depicted an overdraft of Rs.6,69,335/-. It is also established that interest was calculated from time to time in conformity with the agreement and at the rate of interest made applicable from time to time as per the directives of Reserve Bank of India. The witnesses have also deposed that the plaintiff had supplied the statement of account to the defendant from time to time, to which he never raised any objection.
6. According to the plaint, the defendant's account was showing an overdraft of Rs.9,90,117.23 paise as on 30th September, 1992, out of which proceeds of the FDRs to the tune of Rs.6,89,290.90 paise were adjusted reducing the overdraft amount to Rs.3,00,826.23 paise. The suit was filed on 13th October, 1992 and after calculating the interest, a sum of Rs.6,69,335/- was claimed due. Apparently, the interest on the reduced overdraft amount of Rs.3,00,826.23 paise would not have made the recoverable amount of Rs.6,69,335/- in October, 1992. On the directions of the Court, to explain the position, plaintiff filed an additional affidavit of R.K. Mehra, wherein it has been explained that the statement of account exhibit 'P-15', which was duly certified, gave a note at its bottom that the differences of Rs. 1,00,000/- being balance less casted on 14th October, 1988 was rectified on 29th September, 1992. It is explained in the affidavit that on account of calculation mistake as on 14th October, 1988 the amount was shown less by Rs. 1,00,000/- and the said mistake was rectified on 29th September, 1992 by debiting Rs.1,00,000/- Along with interest thereon to the tune of Rs.1,34,902.70 paise to defendant's account. This rectification is reflected in the statement of account exhibit 'P-15' which justified the suit claim of Rs.6,69,335/-. The evidence lead by the plaintiff is unrebutted as the defendant chose not to contest the suit. The plaintiff has successfully established its case against the defendant. The suit accordingly deserves to be decreed.
7. Thus in view of the above discussion, the plaintiff succeeds and a decree for Rs.6,69,335/- with interest at the rate of 18% per annum from the date of the suit till realisation is passed in favor of the plaintiff and against the defendant. The suit is decreed with costs.