Delhi District Court
State Bank Of India vs Mukesh Kumari on 4 January, 2025
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE-01-010066-2023
CS (Comm) 897/2023
State Bank of India
A body corporation constituted under
the State Bank of India Act, 1955,
having its central office/corporate
centre at State Bank Bhavan,
Madam Cama Road, Mumbai 400024,
One of its local head office
at 11, Sansad Marg, New Delhi-110001,
One of its branch at
Chittranjan Park, New Delhi
And also NPA recovery branch
known as SBI, RACPC,
F-40, 2nd and 3rd Floor,
Ring Road, South Extension Part-I,
New Delhi
through Manager Sh. Sharvan Kumar.
...Plaintiff
Versus
Smt. Mukesh Kumari
W/o Late Sh. Sukhbir Singh
125, Nangal Thakran,
North West,
Delhi-110039
....Defendant
NEERA
BHARIHOKE
Digitally signed by
NEERA
CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 1 of 22 BHARIHOKE
Date: 2025.01.04
16:54:09 +0530
Date of institution of the suit : 27.10.2023
Date on which judgment was reserved : 20.12.2024
Date of pronouncement of Judgment : 04.01.2025
JUDGMENT
SUIT FOR RECOVERY
1. By way of this judgment, I shall decide the suit of the Plaintiff filed for recovery of Rs.4,11,779/- alongwith interest.
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
2. Brief facts of the case as stated by the Plaintiff in the plaint are that :-
i. That the Plaintiff bank is a corporate body constituted under the State Bank of India Act, 1955 (Act No. XXIII of 1955) having its central office at Madam Cama Road, Mumbai. It is a body with perpetual succession and it can sue and be sued in its own name. It is engaged in the business of banking. It has various local head offices including one at 11, Parliament Street, New Delhi-110001, one of its branch at Chittaranjan Park, New Delhi and also RACPC situated at F-40, IInd and IIIrd Floor, Ring Road, South Ext. Part-I, New Delhi-110049 which is under the administrative control of the local head office at New Delhi.
NEERA BHARIHOKE Digitally signed by NEERA CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 2 of 22 BHARIHOKE Date: 2025.01.04 16:54:16 +0530 ii. Mr. Sharvan Kumar has signed and verified the plaint and instituted the present suit on behalf of the Plaintiff bank, posted as Manager in State Bank of India RACPC situated at F-40, IInd and IIIrd Floor, Ring Road, South Ext. Part-I, New Delhi-110049. He is fully conversant with the facts of the present suit on the basis of the record maintained by the Plaintiff bank in the ordinary course of its business therefore he is in a position to depose about the correctness thereof. Even otherwise, he is competent and authorize to sign and verify the pleadings, vakalatnamas, affidavits, applications and executions and file the present suit and to do all such acts as are necessary for the proper conduct of the present suit as per 76 and 77 General Regulations, 1955 framed by Reserve Bank of India in exercise of its powers conferred upon it under section 50 (3) of State Bank of India Act, 1955 with the prior approval of government of India read with notification published in the gazette including one dated 27.03.1987.
iii. On re-organization of set-up of the State Bank of India, RACPC (Retail Assets Central Processing Centre), South Extension, New Delhi has been introduced/established by the Plaintiff bank to deal exclusively with the non-performing assets accounts of branches of State Bank of India situated within Delhi/New Delhi for restructuring of the borrower and recovery of the amount due against the said borrowers, etc. hence the NPA accounts of the branches throughout Delhi including Chittaranjan Park, New Delhi branch have been migrated to RACPC situated at F-40, IInd and IIIrd Floor, Ring Road, South Ext. Part-I, New Delhi- 110049 Digitally signed by NEERA NEERA BHARIHOKE CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 3 of 22 BHARIHOKE Date:
2025.01.04 16:54:25 +0530 which for practical purposes has become the Plaintiff bank including the account in present suit. Hence RACPC situated at F- 40, IInd and IIIrd Floor, Ring Road, South Ext. Part-I, New Delhi- 110049 in place of Chittaranjan Park, New Delhi branch, is filing the present suit however, the Plaintiff remains the State Bank of India only.
iv. Sh. Sukhbir Singh husband of the Defendant had approached and requested the Plaintiff bank for grant of financial assistance by way of vehicle/car loan facility at its Chittaranjan Park, New Delhi branch. Sh. Sukhbir Singh had submitted his identification and proforma invoice of proposed vehicle etc. to the Plaintiff bank before sanction of loan.
v. On considering his proposal and economic viability, the Plaintiff bank sanctioned to Sh. Sukhbir Singh car loan amount to the tune of Rs.5,15,000/- on 07.01.2017 which he duly availed of by purchasing Hundai Grand i10 car and the said car loan is secured by hypothecation of vehicle/car in favor of Plaintiff bank.
vi. Sh. Sukhbir Singh executed and signed various loan documents voluntarily and cautiously for repayment with interest in favour of the Plaintiff bank including Loan Application Form, Arrangement Letter dated 07.01.2017, Loan cum Hypothecation Agreement dated, 07.01.2017 and Vehicle Delivery Letter dated 07.01.2017. vii.
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 4 of 22 16:54:31 +0530 viii. Sh. Sukhbir Singh agreed to pay interest on the outstanding loan amount @9.65% p.a. with monthly rest subject to rise and falltime to time as per banking guidelines. Sh. Sukhbir Singh had undertaken to pay 95 equal monthly loan installments of Rs.8,456.80 Paise each in terms of agreement till entire loan is repaid by the Defendant with up-to-date interest.
ix. It transpired to the Plaintiff bank that Sh. Sukhbir Singh, the borrower has since expired but the details of his death were not known to the Plaintiff bank. After the death of the borrower Sh. Sukhbir Singh had left the Defendant as his legal heir/legal representative. The only name known to the Plaintiff bank who has succeeded over and inherited the estate of the deceased Sh. Sukhbir Singh including hypothecated vehicle. Therefore the Defendant is liable to pay the debts left by the deceased borrower. The Plaintiff bank shall implead the other legal heirs of the deceased borrower Sh.Sukhbir Singh after disclosure of names and details of other legal heirs of Sh. Sukhbir Singh.
x. Sh Sukhbir Sigh miserably failed to comply with the terms and conditions of loan agreement and Sh. Sukhbir Singh had committed regular defaults in repayment of loan amount as a result of which the loan account has become irregular and consequently loan account of Sh. Sukhbir Singh has been classified as NPA on 28.03.2021 and the Plaintiff bank recalled the loan outstanding amount with up-to-date interest, expenses and cost.
NEERA BHARIHOKE CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 5 of 22 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 16:54:37 +0530 xi. On persistent defaults committed by Sh. Sukhbir Singh, the loan was recalled by the Plaintiff bank by serving legal notice dated- 26.06.2023 upon the Defendant sent under Regd. A.D. cover service but despite due and proper service the Defendant failed to comply with the same. Defendant also failed to surrender the hypothecated vehicle to the Plaintiff bank.
xii. The Plaintiff bank has been maintaining its account in normal course of banking business and all entries relating to loan account of Sh. Sukhbir Singh are duly reflected therein. The books of account reflect a debit balance of Rs.4,11,779/- including interest as on date of filing of the present suit which the Defendant is liable to pay to the Plaintiff bank with up-to-date interest and expenses.
xiii. The Plaintiff claims rate of interest @ 9.55% p.a. from 28.03.2021 calculated on 21.06.2023 thus total accrued interest comes to Rs.93,238/- applied on daily basis.
xiv. The Plaintiff bank has been receiving loan installments in the loan account of Sh. Sukhbir Singh during 2017 to 2020 and lastly the Plaintiff bank has received Rs.25,000/- on 30.12.2020 by account transfer in the loan account of Sh. Sukhbir Singh therefore the suit is within the period of limitation.
xv. Plaintiff in accordance with the directions or guidelines relating to assets classification has classified the account of Sh. Sukhbir Singh as non performing asset on 28.03.2021 and as per the accounting NEERA BHARIHOKE CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 6 of 22 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 16:54:45 +0530 practice, no interest was charged and applied but the Plaintiff is entitled to the interest till payment/realization.
xvi. The Plaintiff preferred a Pre-litigation/Pre-Institution Mediation before the Competent Authority, i.e. SEDLSA, on 24.03.2023, however Defendant did not appear before the Competent Authority. Furthermore, the Non-Starter Report for the Pre- Institution Mediation was issued by the Competent Authority, SEDLSA, dated 19.05.2023.
3. Hence the present suit has been filed.
CASE OF THE DEFENDANT
4. The Defendant was served personally on 10.01.2024. The Defendant was directed to file Address Form and Written Statement within the statutory period vide order dated 29.01.2024.
5. Learned Counsel for Defendant filed Written Statement, Application for condonation of Delay and Address Form on 24.02.2024. The application was allowed vide order dated 24.02.2024 and the written statement was taken on record.
6. It is stated in the written statement of the Defendant that the suit filed by the Plaintiff is absolutely in sheer/utter violation of Section 12A of Commercial Courts Act, 2015, hence the suit be dismissed with exemplary costs.
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7. Defendant also submitted that her husband Defendant had died on 13.01.2018. The suit has been filed on 22.07.2023. The Loan was allegedly sanctioned on 07.01.2017 by the Plaintiff bank to the husband of Defendant. Hence, the suit filed at this belated stage after more than five years of death of husband of Defendant is barred by time of limitation.
8. The Defendant has submitted that suit filed by the Plaintiff against the Defendant is without any cause of action accrued in favour of Plaintiff-bank and against the Defendant. Admittedly the husband of the Defendant had allegedly approached and requested the Plaintiff bank for grant of financial assistance by way of vehicle/car loan. Admittedly, the Plaintiff bank had no privity of contract with the Defendant. Admittedly the Defendant had not signed or executed any document for alleged loan nor the alleged loan or any part thereof has been or sanctioned in the name of Defendant. Hence the Defendant is neither liable nor can be held liable to pay alleged outstanding liability, if any, or any part thereof to the Plaintiff-bank. Hence the suit filed by the Plaintiff against the Defendant is legally not maintainable, may kindly be dismissed outrightly with exemplary
9. It is stated by the Defendant that the suit has not been filed by a competent person. Sh. Sharvan Kumar, is not competent to represent the Plaintiff-bank, sign, verify, file and proceed with present suit. There is no Power of Attorney or authorization by a competent person executed in favour of Shri Sharvan Kumar, to represent, sign, verify, file and proceed NEERA CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 8 of 22 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 16:55:00 +0530 with present suit for, in the name and on behalf of Plaintiff-bank.
10. It is further submitted by the Defendant that the Plaintiff has not come to the Hon'ble Court with clean hands and has intentionally and deliberately suppressed the material and important facts from the Hon'ble Court. On death of a borrower his alleged outstanding debts, if any, cannot be enforced against his wife, because the Plaintiff had already covered its risk on account of death of borrower, by charging extra interest and charges, as per terms and conditions of alleged loan granted by the Plaintiff bank to the husband of Defendant.
11. Defendant has submitted that the documents relied by the Plaintiff are illegal and cannot be read against Plaintiff bank and because the same were not signed by the Defendant. The husband of the Defendant Sh. Sukhbir Singh died on 13.01.2018, hence the Defendant had competent to admit or deny the documents allegedly executed by her husband at the time of availing alleged financial assistance from Plaintiff bank. Even otherwise the same got signed from the husband of Defendant without explaining the contents of same nor the husband of the Defendant was allowed to understand the same, before getting his signature thereon. Even otherwise the documents relied by the Plaintiff are giving undue favour to Plaintiff and are adverse and prejudice to the rights and interest of husband of Defendant.
12. Defendant has submitted that the interest and penalties for alleged late payment claimed by the Plaintiff is illegal, exorbitant and legally untenable. Plaintiff is not entitled to claim the same or the Defendant can be held liable to pay the same.The husband of Defendant used to pay the NEERA CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 9 of 22 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 16:55:07 +0530 due installments to the Plaintiff regularly without even a single default, however, after about two years of death of her husband, due to covid 19 Pandemic Disease, U.K. mutant, its second surge, black Fungus, third wave, very little mobility, Omicron, third wave from February 2020, monkey fox, global recession the Defendant could not pay some of due installments to the Plaintiff. Plaintiff was duly informed about the aforesaid difficulties suffered by the Defendant, in making payment of some due installments. Hence the present suit and claim of the Plaintiff is malafide, dishonest and legally untenable.
13. The Defendant has denied the submissions made in the plaint and has submitted that the present suit and claim of the Plaintiff is malafide, dishonest and legally untenable and has prayed for dismissal of the present suit.
REPLICATION FILED BY THE PLAINTIFF
14. The plaintiff filed the replication and denied the submissions made in the Written Statement and reiterated the submissions made in the plaint.
FRAMING OF ISSUES
15. After the completion of pleadings following issues were framed vide order dated 27.04.2024.
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(i) Whether the defendant being widow of the deceased borrower as inherited estate of the deceased borrower and is liable to discharge the loan? OPP
(ii) Whether the plaintiff is entitled to recover a sum of ₹4,11,779/- from the defendant with pendente-lite and future interest as prayed? OPP
(iii) Whether the plaintiff is entitled to pendente-lite and future interest. If yes, on what amount and at what rate? OPP
(iv) Whether the plaintiff is entitled to cost of the suit. If yes, the quantum? OPP
(v) Relief.
PLAINTIFF'S EVIDENCE
16. Plaintiff examined one witness i.e. PW-1 Sh. Sharvan Kumar, Manager of the Plaintiff Bank on 26.07.2024. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents: -
(a) True copy of the Gazette Notification is Ex. PW-1/1.
(b) Photocopy of the insurance of hypothecation vehicle is Mark A.
(c) Copy of PAN Card of Sh. Sukhbir Singh is Mark B.
(d) Copy of Aadhar Card of Sh. Sukhbir Singh is Mark C.
(e) Copy of Office ID of Sh. Sukhbir Singh is Mark D.
(f) Proforma Invoice of proposed vehicle is Ex. PW-1/2.
(g) Loan Application Form is Ex. PW-1/3. Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
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(h) Arrangement Letter dt. 07.01.2017 is Ex. PW-1/4.
(i) Loan cum Hypothecation Agreement dt. 07.01.2017 is Ex. PW-1/5.
(j) Vehicle Delivery Letter dt. 07.01.2017 is Ex.PW1/6
(k) Annexure-1 dt. 07.01.2017 is Ex. PW-1/7.
(l) Annexure-Car-III dt. 07.01.2017 is Ex. PW-1/8.
(m) Office copy of legal notice dt. 26.06.2023 is Ex. PW-1/9.
(n) Postal receipts are Ex.PW1/10 (Colly.)
(o) Statement of Account duly certified under Banker's Book Evidence Act is Ex.PW1/11.
(p) Certificate of accrued interest is Ex.PW1/12.
(q) Certificate under Section 65-B Indian Evidence Act is Ex.PW1/13.
(r) Non-starter report issued by DSLSA is Ex.PW1/14.
17. PW-1 was cross examined by Sh. Narvir Singh on 28.08.2024 and vide separate statement of PW-1, PE was closed on the same day i.e. 28.08.2024. The matter was then adjourned for Defendant's evidence.
DEFENDANT'S EVIDENCE
18. The Defendant was being represented through her Counsel at all the stages of the proceedings. However, at the stage of Defendant's Evidence, matter was adjourned at the request of the proxy Counsel for Digitally signed by NEERA CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 12 of 22 NEERA BHARIHOKE BHARIHOKE Date:
2025.01.04 16:55:30 +0530 Defendant on 20.09.2024 and 28.09.2024 for filing of affidavit of evidence of the Defendant and for Defendant's Evidence since it was informed that the Defendant is undergoing medical treatment in Agra, UP. Thereafter the Defendant stopped appearing and did not file her affidavit of evidence as well. Therefore, her right to file affidavit of evidence was closed vide order dated 25.10. 2024 and the matter was adjourned to 16.11.2024 for final arguments.
FINAL ARGUMENTS
19. None appeared for Defendant for advancing arguments on behalf of the Defendant and final arguments were heard on three dates of hearing.
20. I have heard the submissions of learned Counsel for Plaintiff and have carefully gone through the record.
FINDINGS Issue-wise Findings:
Issue no. (i). Whether the Defendant being widow of the deceased borrower has inherited estate of the deceased borrower and is liable to discharge the loan?
The onus to prove this issue had been placed on the Plaintiff.
21. The present suit has been filed by the Plaintiff bank against the wife of the borrower namely Mukesh Kumari whereas the vehicle/car loan was taken by Mr. Sukhbir Singh who had died before the institution of the suit. The depositions to this effect have been made in the affidavit of evidence of PW-1. PW-1 has also deposed that after the death of the NEERA BHARIHOKE CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 13 of 22 Digitally signed by NEERA BHARIHOKE Date: 2025.01.04 16:55:37 +0530 borrower Mr. Sukhbir Singh, he has left Defendant as his legal heir/legal representative the only name known to the Plaintiff bank who has succeeded over and inherited the estate of the deceased Mr. Sukhbir Singh including hypothecated vehicle and therefore is liable to pay the debts left by the deceased borrower. It has also been deposed by PW-1 in his examination in chief that on persistent defaults committed by Mr. Sukhbir Singh, the loan was recalled by the Plaintiff bank by serving legal notice dated 26.06.2023 upon the Defendant but despite the one proper service, the Defendant failed to comply with the same and also failed to surrender the hypothecated vehicle to the Plaintiff bank.
22. PW-1 was duly cross examined by learned Counsel for Defendant on 28.08.2024 who admitted during his cross examination that the loan in question was never sanctioned to the Defendant namely Mukesh Kumari. PW1 also admitted that the Defendant did not sign any loan document or any document regarding the loan and that the Defendant did not sign any document for repayment of the loan in case of default or any mishappening with the borrower.
23. PW-1 was put a question as to how he came to know about the death of husband of the Defendant and how he had impleaded the Defendant. PW-1 showed Ex. PW-1/3 i.e. the application form for the car loan and answered that it mentions the particulars of spouse of borrower. A question was put to PW-1 that Ex. PW-1/3 also mentions details of number of children to be two and why he had not impleaded them. PW1 replied that there is no detail of their name and their address or their age.
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24. PW-1 during his cross-examination stated that Suraksha Bima Yojana is not applicable to the loan in question and denied the suggestion that it is applicable. PW-1 also denied the suggestion that the Dealing Officer gave an assurance that in the event of death, legal heirs of borrower will not be liable. PW-1 also admitted that the suit has been filed directly in the name of legal heir.
25. During his cross-examination PW-1 also stated that the liability for repayment of loan is only on the borrower. However, the said statement does not change the legal position. At the stage of final arguments, a question had been posed to the learned Counsel for Plaintiff as to maintainability of the present suit against the wife of the deceased borrower. Learned Counsel for Plaintiff relied on the law laid down in Sanjeev Jain vs Rajni Dhingra & Ors., AIRONLINE 2018 DEL 2732, decided on 19 December, 2018. In the said matter, one Mr. Virendra Dhingra was the borrower. LRs of Late Mr. Virendra Dhingra had been impleaded as he passed away prior to the filing of the suit. It was observed by Hon'ble High Court of Delhi that for all intents and purposes, the LRs have been made parties here in respect of the loan availed by Mr. Dhingra. It was further observed that a perusal of the Hon'ble Division Bench's judgment of Bank of India vs Industrial Polymer, (1991) 93 BOMLR 218 and Sarla Devi & Ors. vs. Daya Ram & Ors., 60 (1995) DLT 3 (DB) leave no matter of doubt that Order XXXVII suit is maintainable against the LRs and the right to sue survives.
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26. The relevant paras of Bank of India vs Industrial Polymer, (supra) are set out herein below:
"7. Order XXXVII does not exclude from its purview a suit where the heirs and legal representatives of a deceased are party Defendants.
Nor is there any protection under the Civil Procedure Code to the heirs and legal representatives of a deceased Defendant from a decree being passed against them, provided of course, that the right to sue them survives. The protection which section 52 of the Civil Procedure Code gives to the heirs and legal representatives of a Defendant is a protection against the enforcement of a decree against them in execution. Under section 52, where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of such property. The decree can be executed to the extent of the property of the deceased in his hands. This is a protection which is granted at the stage of execution. Hence even in a case where a decree is passed against such an heir or legal representative under Order XXXVII of the Civil Procedure Code, the decree can be executed only to the extent of the estate of the deceased coming to his hands."
27. Similar is the observation of Hon'ble High Court of Delhi in the matter of Sarvesh Bisaria vs Hari Om Anand (Dead Through Legal Heirs), CS(OS) 160/2020, decided on 12 July, 2022.
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28. For similar reasons, the maintainability of the suit against the LRs of deceased borrower is no longer res integra. Thus, the present suit is held to be maintainable.
29. It is noticed that no question or suggestion was put to PW-1 that the Defendant had not inherited the estate of the deceased borrower and is not liable to discharge the loan despite there being a specific deposition by PW-1 in his examination in chief that after the death of the borrower Mr. Sukhbir Singh, he has left Defendant as his legal heir/legal representative the only name known to the Plaintiff bank who has succeeded over and inherited the estate of the deceased Mr. Sukhbir Singh including hypothecated vehicle and therefore is liable to pay the debts left by the deceased borrower.
30. The defence taken in the written statement in this regard is also not maintainable as the Defendant did not lead her evidence despite being granted sufficient opportunities and also in view of the settled legal position in view of law laid down in Sanjeev Jain vs Rajni Dhingra & Ors.(Supra).
Therefore issue no. (i) is decided in favour of the Plaintiff and against the Defendant and it is held that the Defendant being widow of the deceased borrower has inherited estate of the deceased borrower and is liable to discharge the loan.
Issue no. (ii) and Issue no. (iii) are being decided together being connected issues.
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The onus to prove both these issues had been placed on the Plaintiff.
31. The suit of the Plaintiff is based upon the loan documents which are placed on record as Ex. PW1/1 to Ex. PW1/14. The testimony of PW- 1 has been duly corroborated by the documents placed on record. During cross examination of PW-1, question was put to him about the loan having been issued to Mr. Sukhbir Singh ,i.e. deceased husband of the Defendant, From the branch of the Plaintiff bank situated at Chittaranjan Park But not issued from the branch of RACPC, South Extension Part 1. PW-1 is the Manager of RACPC, South Extension Part 1. However that does not make any dent on his testimony since he volunteered that after sanction of the loan, the same had been migrated to RACPC, South Extension Part 1 for follow up. In regard to not having filed any document regarding the migration, he volunteered that it is the internal process of banking system.
32. During his cross examination, PW-1 stated that the loan was issued of Rs.5.15 Lacs to Mr. Sukhbir Singh in January 2017. He also stated that in case of car loan, no guarantor is required. PW-1 admitted that in the personal detail form, no name of the borrower and date was mentioned at page no. 24 as well as in the declaration at page no. 26.
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33. On perusal of Ex. PW-1/3, Car Loan Application Form, it is noticed that page no. 24 is a part of the same and the personal details of the borrower are mentioned at page no. 22. Declaration form is a part of the Ex. PW-1/3 and has no such column of personal details of the borrower. All the pages of Ex. PW-1/3 bear the signatures of Mr. Sukhbir Singh. No suggestion was given to PW-1 that the signatures on Ex. PW- 1/3 are not the signatures of Mr. Sukhbir Singh.
34. Question had been put to PW-1 about there being no signature of the borrower and date at page no.34. On perusal of Ex. PW-1/5, Loan Cum Hypothecation Agreement, it is noticed that page no. 34 is a part of the same. All the pages of Ex. PW-1/5 bear the signatures of Mr. Sukhbir Singh. No suggestion was given to PW-1 that the signatures on Ex. PW- 1/3 are not the signatures of Mr. Sukhbir Singh. PW-1 volunteered that Mr. Sukhbir Singh had duly signed at bottom side of page no. 34 which is found to be correct on perusal of Ex. PW-1/5.
35. Similar questions had been put to PW-1 about there being no signature of the borrower and date at page no.37. On perusal of Ex. PW- 1/6, it is noticed that page no. 37 is a part of the same. All the pages of Ex. PW-1/6 bear the signatures of Mr. Sukhbir Singh. No suggestion was given to PW-1 that the signatures on Ex. PW-1/6 are not the signatures of Mr. Sukhbir Singh. PW-1 volunteered that Mr. Sukhbir Singh had duly signed at bottom side of page no. 37 which is found to be correct on perusal of Ex. PW-1/6.
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36. PW-1 was also put other questions in regard to the documents Ex. PW-1/8, Statement of account i.e. Ex. PW-1/11 and Ex. PW-1/9 which have been aptly and correctly responded by PW-1.
37. In view of these observations, the testimony of PW-1 remained unshaken. The availing of loan in question by the deceased husband of the Defendant is not disputed nor his signatures have been disputed on the documents Ex. PW-1/2 to Ex. PW-1/8. The deceased husband had been making the irregular payments of EMI is established from perusal of entries in Ex. PW-1/11 leading to his account having been declared NPA on 28.03. 2021. The deceased husband of the Defendant had made last payment to the Plaintiff Bank on 30.12. 2020 and the Plaintiff Bank initiated pre-litigation mediation on 24.03.2023.
38. The Defendant has taken the wrong objection that Plaintiff Bank had not followed Section 12 A of Commercial Courts Act whereas the Plaintiff Bank had initiated pre-litigation mediation and notice of the same was duly sent to Defendant twice. But the Defendant did not appear and report of non-starter dated 19.05. 2023 was issued and the Plaintiff Bank filed the present suit on 27.10.2023. Suit is therefore filed within limitation.
39. There is no occasion to doubt the veracity of PW-1 and for that matter, the authenticity of testimony led by them. The testimony has gone absolutely unshaken and unchallenged even after detailed cross- examination by learned Counsel for Defendant.
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40. This court finds no reason to disbelieve the on oath testimony of the Plaintiff coupled with the relevant documents. Hence, the Plaintiff bank has successfully proved its case by preponderance of probability. The Plaintiff is therefore entitled to recover a sum of Rs. 4,11,779/- from the Defendant.
41. The Plaintiff bank has prayed for interest @ 9.55% p.a. which is as per the term of the Bank Loan agreement. Therefore, pendente lite interest and future interest @ 9.55% p.a. on the sum of Rs. 4,11,779/- is awarded till the time of realization.
Therefore issue no. (ii) and (iii) are decided in favour of the Plaintiff and against the Defendant and it is held that the Plaintiff is entitled to recover a sum of Rs. 4,11,779/- from the Defendant with pendente lite and future interest @ 9.55% p.a. on the sum of Rs. 4,11,779/- till the time of realization.
Issue no. (iv): Whether the Plaintiff is entitled to cost of the suit? If yes, the quantum.
The onus to prove this issue had been placed on the Plaintiff.
42. The Plaintiff Bank has suffered at the hands of the Defendant and is therefore held entitled to cost of the suit. Defendant is directed to pay to Plaintiff the cost of the suit which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall also carry simple interest @ 6% per annum.
NEERA BHARIHOKE Digitally signed by CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 21 of 22 NEERA BHARIHOKE Date: 2025.01.04 16:56:34 +0530 Therefore issue no. (iv) is decided in favour of the Plaintiff and against the Defendant and it is held that the Plaintiff is entitled to cost of the suit as detailed in above paragraph.
RELIEF:
43. The present case is decreed in favour of Plaintiff bank and against the Defendant for sum of Rs.4,11,779/- to be recovered from the Defendant with pendente lite and future interest @ 9.55% p.a. on the sum of Rs.4,11,779/- till the time of realization. Defendant is also directed to pay to Plaintiff the cost of the suit which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall also carry simple interest @ 6% per annum.
44. Decree sheet be prepared accordingly.
45. File be consigned to Record Room after necessary compliance.
Digitally signed by NEERAAnnounced in the open NEERA
BHARIHOKE
BHARIHOKE
Date:
2025.01.04
Court on 04.01.2025 16:56:43 +0530
(Dr. Neera Bharihoke)
District Judge (Commercial Court)-06
South East, Saket Courts, New Delhi
04.01.2025
Certified that this judgment contains 22 pages and each page bears my signatures.
NEERA (Dr. Neera Bharihoke)
BHARIHOKE District Judge (Commercial Court)-06
Digitally signed by South East, Saket Courts, New Delhi
NEERA BHARIHOKE
Date: 2025.01.04
16:56:49 +0530
04.01.2025
CS(COMM) 897/23 State Bank Of India Vs. Mukesh Kumari Page No. 22 of 22