Delhi District Court
District Judge (Commercial Court)-03 vs M/S V. B. Enterprises on 20 December, 2022
IN THE COURT OF SH. RAKESH SYAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW
DELHI.
CS (COMM) 53/2021
STATE BANK OF INDIA
(A body corporate constituted under State Bank of India Act,
1995, having its Head Office at Madame Cama Road, Nariman
Point, Mumbai and amongst other branches, one of its branch
office known as SMECC Branch, Parliament Street, New Delhi -
110001.
............Plaintiff
VERSUS
1. M/s V. B. Enterprises
Through Prop. Ms. Vinita Devi,
At: - RZ-19A, Shop No.2,
Palam Vihar, Sector-6,
Dwarka, New Delhi-110075.
Also at:
Shop No. F-5, Plot No.10,
Sector-10, Dwarka, New Delhi-110075.
2. Ms. Vinita Devi
D/o Sh. Yogender Kumar,
R/o- RZF-1/308, Mahavir Enclave,
Gali No.2, Near Shivani School,
Palam Dabri Road, Palam Village,
South West Delhi, New Delhi-110045.
CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 1/10
Mobile No.:- 9310078133, 8826806871
E-mail:- [email protected]
.......Defendant
Date of Institution : 15.02.2021
Date of final arguments : 09.12.2022
Date of decision : 20.12.2022
JUDGMENT
1.1 The plaintiff bank has filed the present suit, through it's authorized representative, Sh. Dilip Kumar, against the defendants, for recovery of Rs. 14,02,349/- (Rupees fourteen lacs two thousand three hundred forty nine only), alongwith pendent lite and future interest @ 15.00% per annum, with monthly rests, till realization of the decretal amount, along with cost of the suit.
2.1 The plaintiff's case is that defendant no.2, vide Working Capital Loan Application approached the plaintiff at Sector 10, Dwarka Branch, New Delhi for aggregate loan facility of Rs. 10,00,000/- (Rupees ten lacs only). The plaintiff's SMECCC Branch at Karol Bagh, sanctioned a Working Capital Loan facility of Rs. 10,00,000/- (Rupees ten lacs only). An Account No.37666252528 was opened in the name of defendant no.1. The defendant continued to enjoy the said facility. Defendant no.2 executed Letter of Arrangement dated 23.04.2018, Agreement of Loan-cum-Hypothecation dated 23.04.2018 and Affidavit of Assets dated 03.03.2018, for repayment of said loan amount. The defendants also agreed to CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 2/10 pay interest @ 10.90% per annum, with monthly rests, on the loan amount.
2.2 It is further stated that the defendants failed to adhere to the financial terms and conditions and the account of defendant no.1 became irregular. Defendant no.2 also failed to route sales through the said account and to submit stock statements. The defendants committed regular defaults, as a result of which, the loan account was declared as Non Performing Asset with effect from 28.12.2018.
2.3 It is also stated that the plaintiff sent a Demand Notice dated 31.12.2018, under Section 13(2) of the SARFAESI Act, 2002, to recall the entire outstanding amount. The plaintiff also issued two legal demand notices dt. 31.12.2018 and 04.03.2020, to the defendants to pay the outstanding amount, along with accrued interest, but the defendants failed to do so.
2.4 It is further stated that a sum of Rs. 10,10,806.40 is due towards the defendant upto 21.01.2021, excluding the accrued interest. The accrued interest as on 21.01.2021 is Rs.3,00,216/- and penalty interest is Rs. 91,327/-. Thus, the total indebtness of defendant as on 21.01.2021 is Rs. 14,02,349/-. The plaintiff has, thus, prayed that a decree be passed in favour of the plaintiff and against the defendant, for a sum of Rs. 14,02,349/- (Rupees fourteen lacs two thousand three hundred forty nine only), alongwith pendente-lite and future interest @15.00% per annum, at monthly rests, till the realisation of the decretal amount, and costs of the suit.
CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 3/10 3.1 Summonses of the suit were served upon the defendants on 13.03.2021. The defendants appeared through their counsel but failed to file written statement within the stipulated period. Thus, vide order dated 23.07.2022 of my Ld. Predecessor, the opportunity to file written statement was closed.
4.1 From the pleadings, the following issues were framed by my ld. Predecessor on 23.07.2022 : -
"1. Whether the plaintiff is entitled to recover the amount claimed? OPP
2. If answer to the issue no.1 is in affirmative, whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP
3. Relief."
5.1 It is pertinent to mention that on 09.11.2022, Mr. Parvesh Kumar was substituted as the Authorized Representative of the plaintiff bank.
6.1 In order to prove its case, the plaintiff has examined only one witness i.e. PW1 Sh. Parvesh Kumar, Manager (NPA), State Bank of India, SMECCC Branch, Naraina Industrial Area, New Delhi.
7.1 Sh. Sanjeev Kumar, Ld. Counsel for the plaintiff has generally argued on the lines of evidence led by the plaintiff. He also contended that since the defendants had failed to file written CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 4/10 statement within the stipulated period of 120 days, their right to file the same was closed. Thus, all the averments made in the plaint are deemed to have been admitted. Further, PW1 has proved all the loan documents and Statement of Account, which prove the loan taken by the defendants and their failure to repay the same as per the agreed terms and conditions. He also argued that defendant no.2 has not denied any document executed by her at the time of availing loan from the plaintiff. Ld. Counsel, thus, submitted that the plaintiff has proved its case against the defendant.
8.1 Sh. Atul Kumar, Ld. Counsel for the defendant has argued that the suit was filed by Sh. Dalip Kumar, but he has not been examined. The evidence was given by one Sh. Parvesh Kumar, who had no personal knowledge of the loan transactions. Thus, his testimony is of no value. He has also relied upon A. C. Narayanan & Ors. vs. State of Maharashtra & Ors., (2014) 11 SCC 790 and Janki Vashdeo Bhojwani vs. Indusind Bank Ltd., 2004 Law Suit (SC) 1465 in this regard.
9.1 I have heard Sh. Sanjeev Kumar, Ld. Counsel for the plaintiff and Sh. Atul Kumar, Ld. Counsel for the defendants, and also perused the record.
10.1 It may be mentioned that both the defendants i.e. defendant no. 1, being proprietorship concern, and defendant no.2, being proprietor thereof, are one legal entity. Any reference to defendant no. 1 means and include defendant no. 2 and vice CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 5/10 versa. In this regard, reference can be made to P.D.Verma and Company vs. Laxmi Builders, 2014 SCC Online Del. 2160.
10.2 It is also pertinent to note that as per section 3 of The Indian Evidence Act, 1872, a fact is said to be 'proved' when, after considering "the matters before it", the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be 'disproved' when after considering the "matters before it", the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be 'not proved' when it is neither proved nor disproved. It is well settled that the expression, "the matters before it" is wide enough to cover even matters which are other than "evidence". It includes statements of the witnesses, admissions, oral or written, documents proved in evidence, demeanour of witnesses, local inspections and presumption etc. Further, while appreciating the evidence, a court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and they are to be subject to no particular rule whatever on the subject. In this regard, a reference can be made to Ved Parkash Kharbanda Vs. Vimal Bindal, (2013) 198 DLT 55.
CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 6/10 10.3 It is also well settled that banks and financial institutions, which disburse loans to citizens, operate on the trust and faith that the citizens who avail of loans would pay back the same honestly and with diligence. Banks hold the money of the public in trust with them, and the financial cycle of investments, deposits and loans are essential for the functioning of the economy. If people, who avail loans, default in payment of the same and also avoid the court processes, there would be enormous distress in the system. Courts also have a duty to safeguard public money. Further, where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. In this regard reference can be made to ICICI Bank Limited vs. Surbhi chopra, 2018 SCC Online Del 6949 and United Bank of India vs. Naresh Kumar, (1996) 6 SCC 660.
11.1 The issue wise findings are as under:-
ISSUE No.1 Whether the plaintiff is entitled to recover the amount claimed? OPP PW1 Sh Parvesh Kumar has tendered his affidavit, Ex. PW1/A. In his affidavit, Ex. PW1/A, he has generally reiterated the same facts as stated in the plaint. He has also deposed about Gazette Notification, Mark A, Loan Application, along with other documents, Ex. PW1/1 (colly), Loan Appraisal and Sanction dated 18.04.2018, Ex. PW1/2, Letter of Arrangement dated 23.04.2018, Ex. PW1/3, Agreement of Loan cum Hypothecation dated 23.04.2018, Ex. PW1/4, Affidavit of CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 7/10 Assets dated 03.03.2018, Ex. PW1/5, Affidavit under Section 65B of Indian Evidence Act, Ex. PW1/6, Affidavit for Statement of Truth, Ex. PW1/7, Demand Notice dated 31.12.2018 under Section 13(2) of SARFAESI Act, Ex. PW1/8, Legal Notice dated 04.03.2020, Ex. PW1/9 and Statement of Account, Ex. PW1/10.
During his cross-examination, PW1 admitted that he does not have any personal knowledge of the loan transaction. He volunteered to say that he has deposed on the basis of record. He also admitted that no document regarding the loan transaction was executed in his presence. The defendants have not filed written statement. There is no dispute that all the aforesaid loan documents were maintained in the official record of the plaintiff. The same have also not been disputed. The facts of the judgments cited by Ld. Counsel for the defendant are different from those of the present case.
11.2 From the evidence led by the plaintiff, it is clear that on the Loan Application, Ex. PW1/1 (Colly) of defendant no.2, the plaintiff has sanctioned Working Capital Loan of Rs. 10,00,000/-, with interest @ 10.90% per annum, vide Sanction dated 18.02.2018, Ex. PW1/2. Defendant no.2 had also executed Letter of Arrangement dated 23.04.2018, Ex. PW1/3, Agreement of Loan cum Hypothecation dated 23.04.2018, Ex. PW1/4 and Affidavit of Assets dated 03.03.2018, Ex. PW1/5. Further, the Statement of Account, Ex. PW1/10, reveal the defaults committed by the defendants in repayment and that the last payment of Rs. 5,000/- was made on 31.12.2018. It also shows that as on 21.02.2020, a sum of Rs.12,78,765.40 was outstanding against the defendants. Further, interest for the period 21.02.2020 CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 8/10 to 21.01.2021 is Rs. 1,23,584/-. Thus, as on 21.01.2021, a sum of Rs. 14,02,349/- (Rupees fourteen lac two thousand three hundred forty nine only) is due against the defendants.
11.3 In view of the aforesaid discussion and from the matters before the court, it is considered that the plaintiff has been able to prove its case against the defendants. Thus, it is held that plaintiff is entitled for recovery of Rs. 14,02,349/- (Rupees fourteen lac two thousand three hundred forty nine only), from the defendants. Issue no.1 is decided accordingly.
12.1 Issue No.2.
If answer to issue no.1 is in affirmative, whether the plaintiff is entitled to interest? If so, at what rate and for which period? OPP The plaintiff has also claimed pendente-lite and future interest @ 15.00% per annum from the date of filing of suit till its actual realization. However, such rate of interest has not been substantiated by any evidence or otherwise. In the facts and circumstances of the case, it is considered that pendente-lite and future interest @ 09.00% per annum, would be just and reasonable. Thus, it is held that the plaintiff is entitled to pendente-lite and future interest @ 09.00% per annum, on the outstanding amount i.e. Rs. 14,02,349/- (Rupees fourteen lac two thousand three hundred forty nine only), till realization of the entire amount. Issue no.2 is decided accordingly.
13.1 Relief.
In view of the aforesaid discussion, the suit is decreed in favour of the plaintiff and against the defendants, for a CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 9/10 sum of Rs. 14,02,349/- (Rupees fourteen lac two thousand three hundred forty nine only), alongwith pendente-lite and future interest @ 09.00% per annum, till realization of the entire amount.
14.1 The plaintiff is also awarded costs of the suit.
15.1 Decree be drawn accordingly.
16.1 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, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
17.1 File be consigned to Record Room.
Announced in open Court on 20.12.2022 (RAKESH SYAL) District Judge (Commercial Court)-03, South-West, Dwarka Courts, New Delhi 20.12.2022 CS(COMM) No.53/2021 State Bank of India vs. M/s V.B.Enterprises & Anr. 10/10