Delhi District Court
State Bank Of India vs Mr. Ganesh Datt on 28 October, 2021
DLCT010141232019
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (COMM) NO. 2490/19
STATE BANK OF INDIA
(THROUGH: MR. PRADEEP KALRA, ADVOCATE)
.... PLAINTIFF
VERSUS
MR. GANESH DATT
S/O SH. NARAN DATT
R/O FLAT NO. 389-G, POCKET-2,
MAYUR VIHAR, PH-I, DELHI-110091.
ALSO AT :-
DATT & ASSOCIATES
PRACTICING COMPANY SECRETARY,
B-62, SEC-57, OPP. SUDARSHAN NEWS, NOIDA-201301.
.... DEFENDANT
DATE OF INSTITUTION : 16.10.2019
DATE OF RECEIPT OF CASE ON
TRANSFER : 25.02.2020
DATE OF RESERVING JUDGMENT : 12.10.2021
DATE OF PRONOUNCEMENT OF
JUDGMENT :28.10.2021 EX-PARTE JUDGMENT
1. The plaintiff bank has filed the present suit for recovery of Rs 6,85,099/- against defendant Ganesh Datt. The plaint has been Page No. 1 of 10 signed and verified by Mr Prem Kumar Chief Manager/Authorised Officer of the plaintiff bank.
2. Briefly stated the case of plaintiff bank as stands emanated from the plaint is as under:
On the request of defendant, the plaintiff bank advanced/granted a loan/financial assistance of Rs.9,00,000/- towards purchase of a vehicle Model/ Make- TATA SAFARI STORME EX 4x2, 7S(diesel), bearing registration No. DL1CV9831. The loan facility at the time of sacntion was carrying interest @ 9.65% per annum and was repayable in 84 equal monthly installments of Rs.14,779/- each commencing from 14.11.2016. It was also agreed that the interest on the amount of loan will be applied/charged @ 0.06% over MCLR( marginal cost of funds based lending rate) which at the time of extending the loan was 9.05% per annum and was to be calculated on daily basis at monthly rests, subject to reset at the end of one year from the date of first disbursment.It was also agreed that in the event of default in payment of installment or any irregularity in the loan account penal interest @2% per annum over the stipulated interest rate will be applied qua the irregular amount and overdue period.
3. The changes in the rate of interest pursuant to change in MCLR are stated to have been duly notified in newspapers and on the website of the bank and the borrower/defendant was deemed to have notice thereof.
Page No. 2 of 104. It has been further stated that at the time of extending the loan, various documents such as "loan cum hypothication agreement and arrangement letter", loan application, vehicle delivery letter, were executed between the parties.
5. It has been further stated that defendant however failed to adhere to the financial discipline in terms of the loan agreement and defaulted in timely payment of installments despite repeated requests by the plaintiff bank. Thus finding that the defendant is deliberately and intentionally neglecting to pay the installments of the loan amount, the plaintiff bank declared the said loan account as NPA on 14.06.2019 in accordance with the guidlines of Reserve Bank of India. Finally a loan recall notice dated 05.08.2019 was issued to the defendant calling upon him to pay the outstanding amount but the defendant paid no heed to the said notice and did not even reply to the same.
6. It is in the aforesaid circumstances, the plaintiff bank was constrained to file the present suit for recovery of Rs.6,85,099/- against defendant as was the amount due on 05.08.2019 along with pendentelite and future interest @ 11.65% per annum from 05.08.2019 till actual realisation.
Proceedings before the court
7. After filing of the suit summons thereof were issued to the defendant and on 19.01.2019 two counsels appeared on behalf of defendant. The then Ld. Predecessor of this court directed Ld. Counsels for defendant to file written statements and adjourned the matter to 12.02.2021. However when on the next date of hearing none appeared on behalf of the defendant and even no Page No. 3 of 10 written statement was filed so the then Ld. Predecessor ordered that the defendant be proceeded ex parte. The case was accordingly adjourned for recording of ex parte evidence.
8. In support of its case, the plaintiff bank examiend only one witness namely Mr. Sujeet Kumar, Chief Manager/AR as PW1. Beside tendering his affidavit Ex. PW-1/A towards his examination in chief, PW-1 he also proved and exhibited the following documents :-
Documents Exhibits
Certified copy of the Gazette Of India Ex.PW1/1
dated 02.05.1987.
Loan application dated 17.10.2016 Ex. PW1/2
Loan-cum-hypothecation agreement Ex.PW1/3
dated 17.10.2016
Arrangement letter dated 17.10.2016 Ex.PW1/4
Vehicle delivery letter Ex.PW1/5
Performa invoice Ex. PW1/6
Copies of KYC documents & details MARK
of hypothecated vehicle "A"(Colly)
Legal notice dated 05.08.2019 Ex.
alongwith postal receipit PW1/7(Colly)
Statement of account Ex. PW1/8
(Colly)
Certificate in terms of Section 2A & Ex. PW1/9
2(8) of Bankers Books Evidence Act
read with Section 65-B of Indian
Evidence Act, 1872
The plaintiff evidence was accordingly closed on 21.09.2021.
Page No. 4 of 10Arguments
9. I have heard the submissions advanced by Mr. Pradeep Kalra, Ld. Counsel for the plaintiff bank and perused the record.
10. Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015. It has further been submitted that 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. It was also submitted that the testimony of the plaintiff's witness has remained unchallenged and un-impugned as the defendant has not come forward to defend the suit despite being duly served.
11. The suit is also stated to within limitation and that there was no legal impediment that the suit cannot be decreed in favour of the plaintiff.
12. Ld. Counsel for plaintiff has also 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.
The suit was thus prayaed to be decreed.
Appreciation of Evidence & Arguments
13. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, Page No. 5 of 10 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(c) of the Act.
14. The summons which have 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 averments in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit, the plaintiff is still liable to prove its case on pre-ponderance of probabilities.
15. PW- 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for the plaintiff has placed strong reliance on judgment passed on 31.01.2018 by our own High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similar as are the facts of the present case.
16. PW1 has tendered in evidence, Gazettte of India dated 02.05.1987 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 clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
Page No. 6 of 1017. 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.
18. The evidence in this case is primarily 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.
19. A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be 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 non-appearance, and the Court cannot speculate into the reasons for his non-appearance 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 pre-ponderance 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 Page No. 7 of 10 documents tendered by the plaintiff on their face value without any demur.
20. Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant had approached the plaintiff bank and executed Ex. PW1/2 loan application dated 17.10.2016. The bank acceded to the request and consequent upon the same the defendant executed/submitted various loan documents viz. Ex. PW1/2 to Ex. PW1/6. 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. PW1/8, maintained by the plaintiff in the ordinary course of its business. The same being electronic record has been accompanied with certificates under the Bankers' Book Evidence Act and under Section 65B of Indian Evidence Act, 18572 respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
21. The plaintiff has also served a notice Ex. PW1/7 upon the defendant calling upon him to clear the outstanding in his account. Due to non-compliance of its terms on the part of the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.
22. The suit has been instituted on 16.10.2019 and the same is therefore within the prescribed period of limitation.
Page No. 8 of 1023. The plaintiff has claimed the suit amount of Rs. 6,85,099/- alongwith pendentelite and future interest @ 11.65% per annum from 05.08.2019 till realization of the suit amount.
24. The plaintiff is entitled to the outstanding principal and pendentelite and future interest. The same flow from the contractual relationship as per the terms and conditions settled and forming part of the loan documents.
25. The plaintiff has claimed pendentelite and future interest w.e.f. 05.08.2019 @ 11.65% per annum. The plaintiff is thus entitled to the same at the rate mentioned as it is not only reasonable but also in consonance with the contemporary banking and economic milieu, risk factors involved and other attendant circumstances. However, the entitlement shall commence from the date of institution of suit viz. 16.10.2019.
26. The interest accrued from the date of suit till the date of decree shall stand capitalized in the principal sum/suit amount. Thus, the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
27. The suit of the plaintiff is decreed in the sum of ₹ 6,85,099/- with simple interest @ 11.65% per annum from the date of the institution of the suit i.e. 16.10.2019 till realization of the entire amount. The interest accrued from the date of suit viz. 16.10.2019 till the date of decree shall stand capitalized in the Page No. 9 of 10 principal sum/suit amount. The plaintiff shall be liable to pay the further court fee accordingly.
28. The plaintiff shall be entitled to the costs of the suit also as per the rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, 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
29. In compliance of the provisions of Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date 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. This judgment be also uploaded on the website of Delhi District Courts forthwith.
30. File be consigned to Record Room.
Announced in the open court on 28.10.2021.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi Page No. 10 of 10