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Delhi District Court

Punjab National Bank vs Kamal Eating Corner (Proprietorship) on 15 February, 2021

  IN THE COURT OF SHRI MAN MOHAN SHARMA, DISTRICT
   JUDGE (COMMERCIAL COURT)­06, CENTRAL DISTRICT
              TIS HAZARI COURTS, DELHI

IN THE MATTER OF :­

                          CS (Commercial) No. 591/2019

Punjab National Bank
BO: New Rajendra Nagar
New Delhi­16                                               .....Plaintiff
                                   VERSUS
Kamal Eating Corner (Proprietorship)
R/o WZ­1608­A, Shakur Basti
Rani Bagh, New Delhi­110034

Also at
Sh. Rajesh Kumar (Sole Proprietor)
S/o Sh. Bali Ram Sharma
R/o ­1090, Rani Bagh
Shakur Basti, New Delhi­110034
                                                             Defendant

         Date of Institution            : 02.05.2019
         Date of Reserve of Judgment    : 11.02.2021
         Date of Judgment               : 15.02.2021

JUDGMENT

1. The plaintiff has instituted a suit for recovery of ₹4,21,114/­ (Rupees Four Lakh Twenty One Thousand One Hundred and Fourteen only) under Order XXXVII of CPC against the defendant on 02.05.2019.

Plaintiff's Case

2. Briefly stated, the case of the plaintiff is that it is a body corporate under the Banking companies Act, 1970. The suit has been instituted through its authorized representative Shri Ramesh Chand.

3. The defendant is a proprietorship firm and made an application for grant of Term Loan under the Prime Minister Mudra Scheme (PMMY) to the tune of Rs.5,00,000/­. The plaintiff acceded to the request of the defendant and sanctioned him a loan for an amount of Rs.5,00,000/­ (Rupees Five Lakh only) vide loan agreement dated 19.02.2016 bears interest @12.35%. The plaintiff bank opened account no.062900IB00000138 and disbursed the entire loan amount of Rs.5,00,000/­ at different stages as and when required by the defendant.

4. After making certain payments, the defendant defaulted in repayment and last payment was paid on 26.12.2017, therefore, the legal notices dated 03.07.2017 & 24.08.2018 were sent to the defendant calling upon him to make the payment of amount outstanding. Despite being duly notified the defendant did not come forward to pay the outstanding amount constraining the plaintiff to institute the instant suit.

5. The plaintiff has prayed that the suit be decreed in the sum of ₹ ₹4,21,114/­(Rupees Four Lakh Twenty One Thousand One CS (Comm.) No. 591/2019 Page 2 of 10 Hundred and Fourteen only) with interest @12.35% per annum w.e.f. date of filing of the suit till the realization of the amount. Cost of the suit has also been prayed for.

Service of the Defendant

6. Vide the minutes of proceedings dated 02.05.2019, the process had been directed sent to defendant in Form no. 4 of Appendix B of the Code of Civil Procedure as that of a Summary Suit under Order XXXVII. However, an ordinary process has been sent and the defendant had been served on 05.7.2019. The defendant caused his appearance on 25.11.2019 and filed a self attested copy of his Aadhar Card on record. as recorded in the minutes of proceedings dated 25.11.2019.

7. The Process Server concerned has been examined on 23.10.2020, who proved the service of process.

8. The defendant did not cause appearance after 25.11.2019. and had been proceeded as ex­parte vide the minutes of proceedings dated 10.12.2020. He did not join the proceedings.

Plaintiff's Evidence

9. In its evidence, the plaintiff has examined only one witness i.e. Rakesh Ranjan, its Authorized Representative, as PW­1.

10.PW1 tendered his oral evidence contained in affidavit Ex.PW1/A He tendered the following documents in evidence:­ Documents Exhibits Copy of Power of Attorney Ex.PW1/1 CS (Comm.) No. 591/2019 Page 3 of 10 Original Loan application dated Ex.PW 1/2 08.02.2016 Sanction Letter Ex. PW1/3 Original Term Loan Agreement dated Ex.PW1/4 19.02.2016 Vouchers issued on different dates Ex.PW1/5 (Colly) Letter dated 10.03.2016 Ex.PW1/6 Cop of Invoices Ex.PW1/7 Copy of demand draft Ex. PW1/8 Balance and security letters Ex.PW1/9 Legal notices dated 13.07.2017 and Ex.PW1/10 (colly) 24.08.2018 Statement of accounts Ex.PW1/11

11.The plaintiff evidence has been closed on 11.02.2021.

Arguments

12.I have heard the submissions advanced by Sh. Govind Ballav Pandey, ld. counsel for the plaintiff.

13.Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(1)(c)

(i) and other applicable provisions of the Commercial Courts Act, 2015.

14.The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business. The testimony of the plaintiff's witness has remained unchallenged and un­impugned as the CS (Comm.) No. 591/2019 Page 4 of 10 defendant has not come forward to defend the suit despite being duly served. The suit is within the limitation. There is no legal impediment that the suit cannot be decreed in favour of the plaintiff.

15.The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.

Appreciation of Evidence & Arguments

16. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(1) (c) (i) of the Act.

17.The suit has been originally instituted as a Summary Suit under Order XXXVII of the Code of Civil Procedure. Vide the minutes of proceedings dated 02.05.2019, the process had been directed sent to defendant in Form no. 4 of Appendix B of the Code of Civil Procedure as that of a Summary Suit under Order XXXVII. However, ordinary process for settlement of issues had been sent. The had been served upon the defendant on 05.7.2019. The defendant caused his appearance on 25.11.2019 but played truant after that. He had been proceeded as ex­parte vide the minutes of CS (Comm.) No. 591/2019 Page 5 of 10 proceedings dated 10.12.2020 and did not join the proceedings thereafter. The suit, for all practical purposes, has proceeded as an ordinary suit.

18.The summons which has been sent to the defendant in this case have been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non­ appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit and has been proceeded as ex­parte, the plaintiff is still liable to prove its case on pre­ponderance of probabilities.

19.PW­ 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A moot question which arises here is that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant.

20.The judgments of our own High Court viz. ICICI Bank Limited versus Kamini Sharma & Another' passed on 31.01.2018 in RFA No. 297/2015 and in ICICI Bank Ltd. vs. Sunil Sharma passed in RFA 340/2015 on 31.01.2018 can be read with profit on this aspect. In these judgments a pronouncement has been made regarding appreciation of documentary evidence in cases of public financial institution, appreciation/certification of electronic evidence etc. and the same are also applicable in the facts and circumstances of this case. The sum and substance of the facts of the said case are similarly placed as the facts in the case under CS (Comm.) No. 591/2019 Page 6 of 10 consideration.

21.PW1 has tendered in evidence his Power of Attorney as Ex.

PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act. The authority to sue on behalf of the plaintiff has been stated in in many of its various clauses and other incidental and ancillary powers have been vested in favour of PW1.

22.One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.

23.But this case stands on a different footing as the case primarily harps on the documentary evidence. The evidence in this case is not oral but predominantly documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship, more specifically in the light of the judgments cited above.

24.A civil case proceeds on the doctrine of pre­ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non­appearance of defendant cannot be CS (Comm.) No. 591/2019 Page 7 of 10 taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non­appearance, and the Court cannot speculate into the reasons for his non­appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre­ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.

25.Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant had approached the plaintiff bank and executed Ex. PW1/2 seeking a credit facility. The bank acceded to the request and consequent upon the same, the defendant executed various loan documents viz. Ex. PW1/2 and Ex. PW1/3. The defendant made various payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/11, maintained by the plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without CS (Comm.) No. 591/2019 Page 8 of 10 production of the originals or the production of the computer system.

26.The plaintiff has also served a notice Ex. PW1/10 (colly) upon the defendant calling upon him to clear the outstanding in his account. Due to non­compliance of its terms on the part of the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.

27.The loan has been disbursed on 20.02.2016. Various payments have been made by the defendant during the currency of limitation the last one being on 26.12.2017. The suit has been instituted on 01.05.2019 and the same is therefore within the prescribed period of limitation.

28.Thus, the suit of the plaintiff is liable to be decreed in terms as stated above.

ORDER

29.The suit of the plaintiff is decreed in the sum of ₹ 4,21,114/­ (Rs.

Four Lakh Twenty One Thousand One Hundred Fourteen only) with simple interest @12.35% per annum from the date of institution of the suit i.e. 01.05.2019, till realization of the entire amount.

30.The interest accrued from the date of suit viz. 01.05.2019 till the date of decree viz. 15.02.2021 shall stand capitalized in the principal sum/suit amount. The plaintiff shall be liable to pay the further court fee accordingly.

31.The plaintiff shall be entitled to the costs of the suits as well as per the rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.

32.Balance Court Fee be deposited by the plaintiff within 30 days of the passing of this judgment. Thereafter the decree shall be drawn accordingly.

Copy of the Judgment

33.In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up­to­date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.

34.This judgment be also uploaded on the website of the Delhi District Court forthwith.

35.All pleadings/documents/written arguments etc. filed electronically on the officially email ID of the Court be filed in physical form on record by the respective parties.

    36.File be consigned to the Record Room.                       Digitally signed by
                                                                   MANMOHAN
                                                    MANMOHAN       SHARMA
Announced in the open court                         SHARMA         Date: 2021.02.19
                                                                   18:24:21 +0530

on 15.02.2021
                                          (Man Mohan Sharma)
                                   District Judge (Commercial Court)­06

Central District, Tis Hazari Courts,Delhii CS (Comm.) No. 591/2019 Page 10 of 10