Delhi District Court
The Jammu & Kashmir Bank Ltd vs M/S Rama Overseas on 28 August, 2019
IN THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 750/17
Date of Institution : 02.06.2017
Date of reservation of judgment : 28.08.2019
Date of pronouncement of Judgment : 28.08.2019
The Jammu & Kashmir Bank Ltd.
Having its corporate office at
M.A. Road, Srinagar
and having a branch amongst other places at
Rajinder Palace, 2/5 West Patel Nagar,
Near Metro Station
Opp. Pillar no. 195, New Delhi110008
.................Plaintiff
Vs.
M/s Rama Overseas
Plot No. 717, Ground Floor
Shalimar Garden
Extension1, Sahibabad
Ghaziabad, Uttar Pradesh201010
& Factory at C44
Sector6, Noida201301 ( U.P )
through partners
I. Ratneshwar Jha
ii. Mrs. Mamta Jha
CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 1/8
2. Mr. Ratneshwar Jha
S/o Sh. Shambu Nath Jha
Partner of M/s Rama Overseas
R/o 717
Shalimar Garden
Extension 1 , Sahibabad
Ghaziabad, Uttar Pradesh 201010.
3. Mrs. Mamta Jha
W/o Mr. Ratneshwar Jha
Partner of M/s Rama Overseas
R/o 717
Shalimar Garden
Extension 1 , Sahibabad
Ghaziabad, Uttar Pradesh 201010.
..............Defendants
SUIT FOR RECOVERY
EXPARTE JUDGEMENT
1.Brief facts of the case as stated in the plaint are that the plaintiff Bank (a Company established under J & K Companies Act 1977 ( SAMVAT), having its branch office at Rajinder Palace, 2/5 West Patel Nagar, Near Metro Station, Opp. Pillar No. 195, New Delhi
08.
2. Defendant no.1 is the partnership firm of defendant no.2 and 3 ( both partners) and is engaged in the business of manufacturing, trading and export of all types of garments under the name and style of M/s Rama Overseas from the afore mentioned address. It is further CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 2/8 stated that defendant no.1 through partners defendant no.2 and 3 have availed the temporary overdraft facility of Rs 2 lakhs from the plaintiff bank to meet the business and other requirements of said partnership concern. It is further stated that defendant no.1 was having its general current account with plaintiff bank w.e.f 30.09.13 vide Account no. 0206010100010751.
3. It is further stated that defendant no.1 through defendant no.2 and 3 requested the plaintiff bank for grant of temporary overdraft facility and on the basis of assurances made by defendants, plaintiff bank agreed to their request and advanced temporary overdraft facility of Rs. 2 lakhs on 12.02.2015 and defendant no.1 through defendant no.2 and 3 withdrew the said amount on 12.02.2015 through cheque no. 951740. Further stated that the said amount was repayable alongwith interest @ 15.20 % p.a with monthly interest as per the terms of facility and it was agreed by defendants that they would timely repay the whole amount with interest due towards the loan account in favour of plaintiff bank, however defendants have defaulted in making the payment of loan amount.
4. It is further averred that after repeated requests made by plaintiff bank, defendants deposited on 31.03.2015, an amount of Rs. 30,000/ in the loan account but thereafter defendants started buying time on one pretext or the other and hence due to nonpayment of said loan amount, the loan account of defendant no.1 was classified as 'Non Performing Asset' (NPA) on 30.06.2015 in accordance with directives and guidelines of Reserve Bank of India. Thereafter a legal notice dated CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 3/8 11.03.2016 was also sent to all the defendants but of no avail. Hence this suit.
5. By way of present suit the plaintiff has prayed for the following reliefs :
1. Decree for the sum of Rs. 2,56,790.38/ with pendente lite and future interest @ 15.20 % p.a w.e.f 01.05.2017 till realization.
2. Costs of the suit
3. Any other relief.
6. Defendants were served through publication on 09.2.2019, however neither the defendants have appeared nor filed any written statement and hence they were proceeded against exparte vide order dated 22.04.2019.
7. Matter was then listed for exparte evidence. In support of its case, plaintiff examined Sh. Rajesh Kumar Saraf, AR/Vice President of Business Unit, Rajindra Place, New Delhi of plaintiff bank who has tendered his duly sworn in affidavit. Same is Ex. PW 1/A. During his testimony following documents have been exhibited :
1. Copy of GPA Ex. PW 1/1 ( OSR)
2. Copy of partnership deed Mark A
3. Notice alongwith receipts Ex. PW 1/3 ( colly) ( OSR)
4. Statement of account Ex. PW 1/ 4 (colly) alongwith Certificate as per Section 2 A of Banker's Book Evidence Act , 1891 CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 4/8
8. Thereafter exparte plaintiff's evidence was closed vide statement recorded by AR on 22.08.2019 and matter was listed for ex parte final arguments.
9. I have heard the arguments advanced by Ld. counsel for plaintiff and have perused the record carefully.
10. It is apropos to mention that in order to prove its case plaintiff got examined its AR i.e Sh. Rajesh Kumar Saraf as PW1 who has placed on record the copy of GPA Ex. PW 1/1. AR of plaintiff bank had been duly authorized by plaintiff bank to pursue the present case on its behalf. Perusal of the said GPA clearly shows that PW1 has been duly authorized to file, act, appear, sign, verify, make statement, lead evidence etc., on behalf of plaintiff in the court in the present suit. Thus, by placing on record the GPA, Sh. Rajesh Kumar Saraf, has duly proved his bona fide to pursue the present case on behalf of plaintiff bank. Plaintiff bank has further relied on documents i.e statement of account Ex. PW 1/4. The liability of defendants is clearly reflected from Statement of account Ex. PW 1/4 which is complemented by certificate as per Section 2 A of Banker's Book Evidence Act, 1891. This statement shows the liability of defendants as on date.
11. Perusal of evidence on record further shows that plaintiff bank even issued a legal notice dated 11.03.2016 which is Ex. PW 1/3 (colly), to the defendants asking them to make payment of loan amount. The legal notice was not even replied. Hence the fact that defendant did not reply to the legal notice Ex. PW1/3 (colly), these are implied CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 5/8 admissions of liability on the part of defendants.
12. It is apropos to state that it has been held by the Hon'ble Supreme Court in judgment titled as Abdul Gaffar vs. DDA 2001 Rajdhani Law Reporter 249 that if a legal notice is given by a party, the same is not replied and contents not denied then, silence of the notice raises presumption against him. Another judgment of Hon'ble High Court titled as Kalu Ram v Sita Ram 1980 Rajdhani Law Reporter (Note) 44 is on the same aspect.
At this stage, it is also pertinent to mention Section 27 of the General Clauses Act :
"Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or "given" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
The Hon'ble Apex Court in the case of K.Bhaskaran vs Sankaran Vaidhyan Balan & Anr. (1999) 7 SCC 510 observed as under :
"The principle incorporated in Section 27 of the General Clauses Act could profitably be imported in a case where the sender had dispatched the notice by post with the direct address written on it. Then it can be deemed to CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 6/8 have been served on the addressee, unless he proves that it was not really served and he was not responsible for such nonservice."
These were the observations of the Hon'ble Supreme Court while dealing with a case relating to service of notice U/s 138 of NI Act.
13. Thus, on the basis of the above law as well as on postal receipts Ex. PW 1/3 (colly), the factum of delivery of the said legal notice duly stands established but the fact that no reply pertaining to the same is placed on record by the defendant, raises a presumption against the defendant under Section 114 of the Indian Evidence Act, 1872 as it is a settled proposition of law that non denial or evasive denial amounts to an admission. The fact that the defendant duly received the legal notice is undisputed, implying that the averments made by the plaintiff in the legal notice duly stands admitted by the defendant.
14. At this stage an inference can be drawn on the basis of Section 114 of the Indian Evidence Act which states that, "the 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/a private business, in their relation to the facts of the particular case." The Clause (f) appended to the section clearly states that, "common course of business has been followed in a particular case, implying that where a letter or legal notice as in the present case is sent to the defendant, it would have ordinarily been delivered in the common course of business to the party to whom it was addressed."
CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 7/8
15. In the present case also on the basis of presumption under Section 114 of the Indian Evidence Act it can be duly presumed that once the goods/services are delivered to the defendant, in the ordinary course of business the same must have been duly received/gained by the defendant.
16. Furthermore defendants did not appear to contest the suit which proves that they have no defence to offer against the contentions of the plaintiff. Further, it is noteworthy that deposition of PW1 is on oath and has remained unrebutted and are duly supported with documents on record, there is nothing to doubt or to disbelieve it. The plaintiff has succeeded in proving its case for recovery of sum of Rs.2,56,790.38/ from defendants aongwith pendente lite and future interest @ 15.20 % per annum.
17. Hence, present suit is decreed in favour of the plaintiff for a sum of Rs.2,56,790.38/ along with pendente lite interest @ 15.20 % per annum. No order as to costs. All the defendants are jointly and severally liable to pay the suit amount.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary Digitally signed by compliance. NITISH NITISH KUMAR KUMAR SHARMA Date: 2019.08.28 SHARMA 16:01:13 +0530 Pronounced in the open court (Nitish Kumar Sharma) today on 28.08.2019 Civil Judge01(West)/Delhi CS SCJ No. 750/17 Jammu & Kashmir Bank vs Rama Overseas & Ors. 8/8