Delhi District Court
Branch Office At vs M/S Laksh Developers & Promoters on 10 June, 2021
-1-
IN THE COURT OF SH. GURDEEP SINGH
DISTRICT JUDGE (COMMERCIAL COURT)-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
In the matter of:-
CNR No: DLWT01-008774-2019
CS (Comm): 521/2019
State Bank of India
Having its Corporate Office at
Madam Cama Marg
umbai-400021
Branch Office at
13, Raja Garden, Chowk
New Delhi - 110 015
....... Plaintiff
VERSUS
M/s Laksh Developers & Promoters
Through its Sole Proprietor
Shri Raman Kapoor
40, Raja Garden West
New Delhi - 110 015
....... Defendant
Date of Institution : 24.10.2019
Date of reserving order : 06.04.2021
Date of pronouncement of order : 10.06.2021
JUDGMENT / 10.06.2021
1.Vide this judgment, I shall decide present suit for recovery of Rs.630255.07/- besides pendente lite and future interest etc. filed by the plaintiff bank against the defendant.
2. The case of the plaintiff bank as set out in the plaint is that the CS (Comm.) No: 521/2019 Page 1 of 8 -2- plaintiff bank is a body corporate functioning in terms of SBI Act, 1955 which amended time to time and the suit was instituted by Ms. Sapna Jain, Branch Manager, who is fully empowered and authorized to institute the suit, sign and verify the plaint and other pleadings.
3. It is further averred the defendant was availing temporary overdraft in his current account no.32105068781 as per his credit requirement and had already availed such facilities on various dates and repaid same. Further, likewise, on or about 22.2.2014, the defendant again approached the plaintiff bank for availing overdraft to meet business requirement by getting clear cheque issued by him and submitted an application dated 22.2.2014 for the same. On his request, a temporary overdraft of Rs.5,76,607/- was granted by the bank, which was repayable immediately on demand at an interest of 18.25% per annum with monthly rests on 22.02.20214. The defendant executed a demand promissory note for valuable consideration and delivered the same to the plaintiff bank. However, despite various requests, the defendant did not repay the said load and gain time on one pretext or the other. He also issued cheque dated 24.9.2015 for Rs.7 lacs for repayment of dues to the plaintiff bank, however, same was returned by the payee bank for the reason 'funds insufficient'. On his request, he was given more time to clear dues, but he did not keep his promise and did CS (Comm.) No: 521/2019 Page 2 of 8 -3- not repay the dues. The defendant gave an acknowledgment of debt/ Revival Letter on 20.02.2017. That in spite of repeated requests and reminders of the plaintiff bank, the defendant failed and neglected to liquidate his liability. Thereafter legal notice dated 13.11.2018 was served upon the defendant to repay the amount but he failed to comply. It is averred that amount due with interest upto 30.11.2015 is Rs.6,30,255.07 plus interest @ 20.25% per annum with monthly rests from 01.12.2015.
4. Summons of the suit was issued to the defendant. Vide order dated 03.02.2020, it was observed that summons sent to defendant at Raja Garden West, New Delhi address received back with the report 'left' whereas the summons sent to Rajouri Garden address received back served through mother of the defendant, which was deemed proper service upon defendant. Since none appeared on behalf of defendant despite service and wait till 2:20 p.m., the defendant was proceeded ex parte and matter was listed for plaintiff's evidence.
5. Vide order dated 09.3.2021, an application of the plaintiff bank for substitution of AR was allowed as the previous AR has been transferred.
6. In order to prove his case, the plaintiff bank examined PW-1 Ms. Kiran Singh, Manager, State Bank of India of concerned branch by way of affidavit. She deposed on the line of plaint and proved her affidavit of evidence as Ex.PW-1/A. CS (Comm.) No: 521/2019 Page 3 of 8 -4- She also proved various documents including application seeking loan dated 22.2.2014 as Ex.PW-1/2, the demand promissory note for valuable consideration as Ex.PW-1/3, letter dated 27.11.2014 of defendant seeking time as Ex.PW-1/5, the acknowledgment of debt/ revival letter dated 20.02.2017 as Ex.PW-1/7 and statement of account as Ex.PW-1/8.
7. It is pertinent to mention that on 06.4.2020, the part final arguments were heard on behalf of plaintiff and matter was adjourned for 20.4.2021 for further final arguments/ order. However, on account of second wave of covid-19 and as per directions of Hon'ble High Court of Delhi and Ld. District & Sessions Judge, West District, THC, the matter could not be taken up for hearing on 20.4.2021 and was adjourned en bloc for 11.05.2021 and thereafter for today i.e. 11.6.2021.
8. I have heard Ld counsel for plaintiff and have gone through the record.
LIMITATION
9. Firstly coming to limitation. In the suit for recovery of money the limitation period is for three years. The loan /overdraft facility was granted on an application dated 22.02.2014 which is duly proved as Ex.PW-1/2. It is contended that despite various requests and reminders the defendant did not repay the loan amount and gained time on one pretext or other and in support CS (Comm.) No: 521/2019 Page 4 of 8 -5- of same, the plaintiff bank relied upon documents i.e. Reminder Ex.PW-1/4, letter of defendant dated 27.11.2014 seeking time as Ex.PW-1/5 and other reminder letter dated 19.6.2015 as Ex.PW-1/6. At last, the defendant had given acknowledgment of debt/ revival letter dated 20.02.2017, which is also duly proved by PW-1 as Ex.PW-1/7 thereby acknowledging debt as on 20.02.2017 against the loan in question. Therefore the limitation would starts from 20.2.2017, the date when the defendant acknowledged his debt and since the suit was instituted on 24.10.2019, same is within limitation.
10. In view of above, I am of the opinion that suit is within limitation period and plaintiff has the right to sue.
ENTITLEMENT
11. As regards the amount due and recoverable from the defendant, it is averred that amount due with interest upto 30.11.2015 is Rs.6,30,255.07. In support of averment, the plaintiff bank relied upon statement of account which is duly proved by PW-1 as Ex.PW-1/8. As per statement of account Ex.PW-1/8 which is from 01.01.2014 to 01.03.2017, Rs.5,76,607/- is reflected as balance on 22.02.2014 and Rs.6,30,255.07 is reflected as balance on 30.06.2016 and during this period, the balance never came below the overdraft facility of Rs.5,76,607/-.
CS (Comm.) No: 521/2019 Page 5 of 8 -6-12. As already observed that the plaintiff has also proved application seeking loan dated 22.2.2014 for Rs.5,76,607/- as Ex.PW-1/2, the demand promissory note for valuable consideration as Ex.PW-1/3 and the acknowledgment of debt/ revival letter dated 20.02.2017 as Ex.PW-1/7. Further the plaint of the plaintiff is duly supported with statement of affidavit of truth. PW-1 has also supported the averments made in the plaint. Since the defendant remained ex-parte, the evidence of PW-1 has gone unrebutted and therefore I am of the opinion that plaintiff has succeeded in proving his case that on application dated 22.02.2014 made by the defendant seeking overdraft facility, the defendant was granted overdraft facility of Rs.5,76,607/- by the plaintiff bank, however, the defendant did not repay despite various demands and as on 30.06.2016, Rs.6,30,255.07 which includes interest is due and payable by defendant against the said overdraft facility of Rs.5,76,607/- as per statement of account.
13. In view of above, I am of the opinion that plaintiff bank is entitled to recover Rs.6,30,255.07 which includes interest as on 30.06.2016 from the defendant against the said overdraft facility of Rs.5,76,607/-
INTEREST
14. Now coming to interest. The plaintiff has prayed for interest @ 20.25% per annum with monthly rests from 01.12.2015 CS (Comm.) No: 521/2019 Page 6 of 8 -7- alongwith pendente lite and future interest @ 20.25% per annum. It is contended that agreed rate of interest was Rs.18.25% per annum with monthly rests and in the event of delay made by defendant, he is required to pay increased/ additional interest 2% per annum over and above the agreed rate of interest.
15. The plaintiff has calculated the interest upto 30.11.2015 and claimed amount Rs.6,30,255.07/- with interest, however, as per statement of account Rs.6,30,255.07/- with interest is due and payable as on 30.06.2016 and therefore the plaintiff is entitled to interest from 30.06.2016 onwards.
16. Now coming to rate of interest. Keeping in view that dispute is commercial in nature and there is written contract regarding rate of interest, I am of the opinion that plaintiff is entitle to recover interest @ 18.25% per annum, however, additional rate of interest of 2 % per annum is denied being on higher side.
17. In view of above, the plaintiff is also entitled to recover interest @ 18.25 % per annum from 30.06.2016 till filing of the suit and further interest @ 18.25% per annum pendente lite of the suit from the filing of the suit till the date of order and further future interest @ 18.25 % per annum from the date of order till its realization.
RELIEF CS (Comm.) No: 521/2019 Page 7 of 8 -8-
18. As discussed above, I am of the opinion that plaintiff is entitled to recover Rs.6,30,255.07/- which includes interest upto 30.06.2016 from defendant. Further, the plaintiff is also entitled to recover interest @ 18.25 % per annum from 30.06.2016 till filing of the suit and further interest @ 18.25% per annum pendente lite of the suit from the filing of the suit till the date of order and further future interest @ 18.25 % per annum from the date of order till its realization.
19. Accordingly suit is decreed in favour of the plaintiff and against the defendant with actual cost of suit and fee of the advocate which is assessed to Rs.11,000/-
20. The plaintiff is directed to pay deficient court fee, if any and thereafter decree sheet be prepared accordingly.
21. File be consigned to record room.
Announced in open court Digitally signed
by GURDEEP
today i.e. 10.06.2021 SINGH
GURDEEP Date:
SINGH 2021.06.10
12:38:13
+0530
(GURDEEP SINGH)
DISTRICT JUDGE (COMMERCIAL COURT)-02
WEST DISTRICT/THC/10.06.2021
CS (Comm.) No: 521/2019 Page 8 of 8