Delhi District Court
Canara Bank vs Sh. Rachit Chari on 22 March, 2021
IN THE COURT OF SH. SANJEEV JAIN,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
Presiding Officer: Sh. Sanjeev Jain, District Judge
(Commercial Courts)-01
CS (COMM) 417/2020
In the matter of:
CANARA BANK
A body corporate constituted under
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970
Having its registered Head Office at
112, J.C. Road, Bangalore
Also having branch office at:-
Barakhamba Road Branch,
At: 16, DCM Building Ground Floor,
Barakhamba Road, New Delhi-110001
Through Ms. Shweta Pandey, Sr. Manager &
Duly Constituted Attorney.
.... Plaintiff
Versus
1.Sh. Rachit Chari, Prop. Of M/s Jagdamba Refrigeration & Electricals, At: B/267/G-1, Main Shalimar Garden, Sahibabad, Uttar Pradesh - 201005 CS (COMM). 417/2020 Page 1 of 9 Also at:
B-23/GM-1, Meenal Apartments, Shalimar Garden, Extension-II, Ghaziabad, Uttar Pradesh - 201005 Mobile: 9818390790 email: [email protected] ....Defendant Date of institution : 01.10.2020 Date on which final arguments were heard : 01.03.2021 Date of pronouncement of the judgment : 22.03.2021 Appearance: Ms. Eshu Chaudhary, Ld. Counsels for the plaintiff.
None for the defendant. (Defendants is ex-parte.) Title: Suit for Recovery of Rs.7,13,087.72/- (Rupees seven lakhs, thirteen thousand, eighty seven and seventy two paise only) as on dated 08.01.2020 plus interest presently @10.6% p.a. (variable) compounded monthly plus penal interest @2% p.a. along with applicable interest and for recovery of the above said amount till the realization as per statement of account, from the defendant.
EX-PARTE JUDGMENT
1. Brief Facts:
1.1 This suit was filed by the plaintiff for recovery of Rs.7,13,087.72/- (Rupees seven lakhs, thirteen thousand, eighty seven and seventy two paise only) as on dated 08.01.2020 plus interest CS (COMM). 417/2020 Page 2 of 9 presently @10.6% p.a. (variable) compounded monthly plus penal interest @2% p.a. along with applicable interest and for recovery of the above said amount till the realization as per statement of account, from the defendant. It is stated in plaint that plaintiff is a bank and also a body corporate with perpetual succession incorporated under the Banking Companies (Acquisitions and Transfer of Undertakings) Act 1970. Mrs. Shweta Pandey, Sr. Manager and duly constituted attorney of the plaintiff bank is well conversant with the facts of the case and has been duly authorized to institute the suit on behalf of the plaintiff.
Defendant is the sole proprietor of M/s Jagdamba Refrigeration & Electrical which has been carrying a business of Repairs of Air conditioner / maintenance of Air Conditioner and services at his premises located at B/267/G-1, Main Shalimar Garden, Sahibabad, Uttar Pradesh-201005.
1.2 Defendant approached the plaintiff bank for financial assistance vide loan application dated 05.01.2016 for availing a Credit Facility in Nature of Canara OCC SME Pragati Loan Facility for the purpose of enhancement of his business of repair parts and accessories of air condition of Rs.5,00,000/-.
1.3 Plaintiff sanctioned a loan to the defendant after considering the loan application for an amount of Rs.5,00,000/- (Rupees five lakhs only) at rate of interest of 11.15% [BPLR + 1.50] per annum compounded monthly and hypothecated the stocks and book debts as primary security.
CS (COMM). 417/2020 Page 3 of 91.4 Parties executed the following documents:
(i) Request for Overdraft Facilities (NF-372) dt 07.01.2016.
(ii) Cash Credit Agreement (NF-795) dated 07.01.2016.
(iii) Pronote dated 07.01.2016.
1.5 On the request of the defendant for renewal of the loan, the plaintiff bank renewed the limit on 04.03.2017 and the following loan documents were executed:
(i) Letter of Renewal dated 04.01.2017.
(ii) Sanction Memorandum dated 04.03.2017.
(iii) Letter of Proprietorship dated 04.03.2017.
(iv) Particulars of the Guarantor / Co-obligant dated 14.03.2017.
1.6 The defendant on 04.03.2017 being proprietor of M/s Jagdamba Refrigeration & Electricals acknowledged his debt and signed the Acknowledgement of Debt and Security. The defendant started defaulting in repayment of the loan after completely utilizing the same and defendant again acknowledged the Debt and Security and committed to repay the outstanding within three months i.e. from January 2019 to March 2019. Defendant did not honor his commitment and failed to repay the outstanding. Due to over drawing in the loan account, the loan account was declared NPA on 02.05.2018 by the plaintiff bank as per prudential norms of accounting lead by RBI. Thereafter, in order to recover the loan amount, the plaintiff issued the legal demand notice on 18.04.2019 to the defendant demanding the outstanding amount of Rs.6,23,706.72/- as on 31.03.2019. Defendant CS (COMM). 417/2020 Page 4 of 9 failed to pay the outstanding amount even after the legal demand notice.
1.7 The plaintiff bank has not charged the penal interest in the loan account from 03.05.2018 but as the plaintiff bank is legally entitled to and has the right to recover the same from the defendant as unapplied interest, hence the unapplied interest has been included in the claim of the plaintiff bank. An amount of Rs.7,13,087.82/- as on 08.01.2020 along with present interest @10.6% p.a. compounded monthly plus penal interest @2% p.a. simple w.e.f. 03.05.2018 compounded is due and outstanding against the defendant as on the date of filing of the suit.
1.8 Plaintiff bank filed an application for pre-litigation mediation before the DSLSA, New Delhi, Patiala House Courts, New Delhi. Defendant did not appear for the pre-litigation mediation and certificate / Non-Starter Report dated 24.10.2019 was issued by DSLSA, New Delhi, Patiala House Courts, New Delhi.
2. Service to the defendant:
Defendant was served by way of whatsapp on 07.12.2020. Time was granted to the defendant to file written statement but neither the defendant appeared nor filed written statement. As none appeared for the defendant, thus defendant was proceeded ex-parte vide order dated 29.01.2021.CS (COMM). 417/2020 Page 5 of 9
3. Plaintiff's Evidence:
3.1 In the plaintiff's evidence, Ms. Shweta Pandey, Authorized Representative of the plaintiff was examined as PW1 who filed her affidavit Ex.PW1/1. Her evidence by way of affidavit was tendered before the Court and she proved the following documents :-
S. NO Document Exhibit
1 Copy of Power of Attorney Ex. PW1/1
(OSR)
2 Loan Application dated Ex.PW1/2
05.01.2016
3 Request for overdraft facility Ex.PW1/3
4 Case credit agreement Ex. PW1/4
5 Pronote Ex. PW1/5
6 Sanction Memorandum Ex. PW1/6
7 Letter of renewal Ex.PW1/7
8 Sanction memorandum dated Ex.PW1/8
04.03.2017
9 Letter of proprietorship Ex.PW1/9
10 Particulars of Guarantor/co- Ex.PW1/10
obligant
11 The acknowledgement of debt Ex.PW1/11
and security dated 04.03.2017
12 The acknowledgement of debt Ex.PW1/12
and security dated 16.01.2019
13 Statement of loan account. Ex.PW1/13
14 The certificate u/s 2A (a), 2A (b) Ex.PW1/14 and 2A (c) read with section 65- (colly) B Evidence Act.
15 Legal Demand notice along with Ex.PW1/15 postal receipts CS (COMM). 417/2020 Page 6 of 9 3.2 Thereafter PW-1 was discharged and plaintiff's evidence was closed vide separate statement of the Authorized Representative of the plaintiff.
4. Discussion:
4.1 I have heard the learned counsel for the plaintiff and carefully gone through the record.
4.2 In his unrebutted testimony PW-1 has clearly proved from the documents that he is authorized by the plaintiff by way of Ex. PW1/1 (OSR); loan application dated 05.01.2016 as Ex.PW1/2; request for overdraft facility as Ex. PW1/3; case credit agreement as Ex.PW1/4; pronote as Ex. PW1/5; sanction memorandum as Ex.PW1/6; letter of renewal as Ex. PW1/7; sanction memorandum dated 04.03.2017 as Ex.PW1/8; letter of proprietorship as Ex. PW1/9; particulars of guarantor / co-obligant as Ex.PW1/10; the acknowledgement of debt and security dated 04.03.2017 as Ex. PW1/11; the acknowledgement of debt and security dated 16.01.2019 as Ex.PW1/12; statement of account as Ex. PW1/13; the certificate u/s 2A (a), 2 A (b) and 2 A (c) read with section 65-B of Evidence Act as Ex.PW1/14 (colly) and legal demand notice along with postal receipts as Ex. PW1/15 4.3 I do not find any reason to disbelief the unchallanged testimony of PW-1 and the documents proved on record. Keeping in view the unrebutted testimony of Plaintiff witness and the documents CS (COMM). 417/2020 Page 7 of 9 proved on record, in my opinion plaintiff has successfully established that defendant has failed to pay its dues despite notice. In my opinion, plaintiff has proved its case in respect of the due amount i.e. Rs.7,13,087.72/-.
4.4 Plaintiff has claimed interest @ 10.6% per annum compounded monthly plus penal interest @2% per annum simple w.e.f. 03.05.2018 from the date of suit till the realization of the decreetal amount. In my opinion, plaintiff has claimed interest @ 10.6% per annum compounded monthly plus penal interest @2% per annum simple as per the agreement between the parties and banking norms. In my opinion, keeping in view the nature of the dispute, interest of justice will be served if plaintiff is allowed pendant-lite and future interest @ 9% annum simple from the date of filing of the suit till the realization of the decreetal amount.
4.5 Plaintiff has also claimed the cost of the suit, keeping in view section 35 and 35A of CPC, it has been established that defendant failed to pay the amount despite service of notice and even failed to appear in pre-institution mediation as well as before the court. Therefore, defendant himself is responsible for the cost of the litigation to the extent of court fee and lawyers fee etc. as per rules. In my view plaintiff is accordingly entitled for the cost of litigation against the defendant.
CS (COMM). 417/2020 Page 8 of 95. Relief:
In view of the above discussions, suit for recovery is decreed in favour of the plaintiff and against the defendant for Rs.7,13,087.72/- (Rupees seven lakhs, thirteen thousand, eighty seven and seventy two paise only) due and payable along with interest @ 9% per annum from the date of filing of the suit till the date of decree and from the date of decree till the realization of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendant to the extent of court fee and advocate's fee as per rules. Advocate's fee certificate be filed by plaintiff within seven days failing which notional fee of Rs.10,000/- be allowed in the decree sheet.
Decree sheet be prepared accordingly.
File be consigned to the record room.
SANJEEV Digitally signed by
SANJEEV JAIN
JAIN Date: 2021.03.22
14:13:04 +0530
Pronounced in the open Court (Sanjeev Jain)
on this 22nd of March, 2021 District Judge
(Commercial Courts)-01
New Delhi District, Patiala House Courts
New Delhi
The judgment contains 9 pages all checked and signed by me.CS (COMM). 417/2020 Page 9 of 9