Delhi District Court
Vijaya Bank vs Sh. Mahipal on 28 January, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 731/11
Unique case ID No: 02405C0291002011
IN THE MATTER OF
Vijaya Bank
A body corporate constituted
under the Banking Companies
(Acquisition and Transfer of
Undertaking ) Act, 1980 having
its head office at
41/2, M.G. Road, Bangalore, 560001
With one of its Branch Office at
R.K. Puram, Munirka, Outer Ring
Road, New Delhi
... Plaintiff
Versus
1. Sh. Mahipal
S/o Sh. Ramji Lal
R/o A2447, Netaji Nagar,
New Delhi
Also at
Section Officer,
Railway Board, Rail Bhawan
New Delhi 110001
CS No. 731/11
Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 1 of 30
2. Sh. A.K. Maheshwari,
S/o Sh. M.P. Maheshwari,
R/o H. No. B65, Swasthya Vihar,
Vikas Marg, New Delhi 110092
3. Sh. R.N. Banerjee,
S/o Sh. H.C. Banerjee,
R/o Flat no. J5, Akash Bharti CGHS Ltd.
Plot no. 24, Patparganj,
New Delhi ... Defendants
Date of Institution : 05.10.2011
Date on which judgment was reserved : 15.01.2015
Date of pronouncing judgment : 28.01.2015
SUIT FOR RECOVERY OF RS.1,80,810/
JUDGMENT
1. By this order I will dispose off two applications under Order 37 Rule 3(5) CPC filed on behalf of defendant nos. 1 & 3 respectively.
2. The brief facts leading to the filing of aforesaid applications by defendant nos. 1 & 3 are as follows : The plaintiff i.e. M/s Vijaya Bank has filed the present suit for recovery of Rs. CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 2 of 30 1,80,810/ (Rupees One Lakh Eighty Thousand Eight Hundred Ten Only) against the defendants under Order 37 CPC. Defendant no. 1 is stated to be borrower whereas, defendants no. 2 & 3 are stated to be the guarantors. It is case of the plaintiff as per plaint that defendant no. 1 had applied to the plaintiff bank for availing pronote loan facility for a sum of Rs. 1,50,000/ (Rupees One Lakh Fifty Thousand Only) while introducing defendants no. 2 & 3 as guarantors. On 15.01.2003 a loan of Rs. 1,50,000/ (Rupees One Lakh Fifty Thousand Only) was sanctioned by the plaintiff in favour of defendant no. 1 at an interest rate of 14% per annum. It is further the case of the plaintiff bank that the aforesaid loan was repayable by defendant no. 1 in sixty equal monthly installments of Rs. 3500/ each. Defendant no. 1 had executed a demand promissory note and letter of repayment both dated 15.01.2003. Besides, defendants no. 2 & 3 have executed a joint letter of guarantee dated 15.01.2003. As per the terms and conditions CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 3 of 30 of the aforesaid loan agreement, according to the plaintiff, defendants were liable to pay additional penal interest @ 2% per annum in case of default in payment of EMIs. It is further the case of the plaintiff that defendants have failed to make payment of installments on a regular basis and accordingly breached the terms and conditions of the loan agreement. Though defendant no. 1 has executed two letters of acknowledgment of liability dated 14.12.2005 and 01.12.2008 respectively in favour of the plaintiff bank, however, since according to the plaintiff bank, defendants have failed to repay the loan as per the terms and conditions of the loan agreement, a notice dated 13.01.2011 was served by the plaintiff bank upon the defendants raising a demand for payment of outstanding amount. Despite service of the legal notice defendants have failed to clear the outstanding amount of the plaintiff bank and as such the plaintiff bank has filed the present suit for recovery of Rs. 1,80,810/, which according to the plaintiff was due and CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 4 of 30 payable as on 11.02.2006, as per the statement of account maintained by the plaintiff bank in its ordinary course of banking business which is duly certified under Bankers' Books Evidence Act. The present suit has been filed by the plaintiff bank under Order 37 CPC since according to the plaintiff the present suit is for recovery of a liquidated sum on the basis of written contract including the promissory note executed by defendant no. 1 and letters of guarantee executed by defendant nos. 2 & 3 respectively.
3. Upon receipt of the plaint, summons of the suit for appearance under Order 37 CPC were directed to be issued to all the defendants. All the defendants were duly served with the summons of the suit and they entered appearance within the period prescribed by law except defendant no. 1 who had entered appearance belatedly. However, the delay in entering the appearance on behalf of defendant no. 1 was condoned by the Ld. Predecessor of this court vide order dated 22.05.2012. CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 5 of 30
4. Subsequently, an application was moved on behalf of plaintiff seeking issuance of summons for judgment against all the defendants. Defendant no. 3 was served with the summons for judgment in the court itself on 22.05.2012 whereas summons for judgment upon defendants no. 1 & 2 were served on 23.05.2012 and 08.06.2012 respectively. Defendant no. 3 had thereafter moved an application under Order 37 Rule 3 (5) CPC seeking leave to defend in the present suit on 30.05.2012 whereas, defendant no. 1 seems to have filed the application seeking leave to defend on 05.08.2012 along with application U/s 5 of the Limitation Act seeking condonation of delay in filing the aforesaid application. Subsequently, at the request of defendant no. 1 matter was referred to Mediation Center, Dwarka Courts however, the matter could not be settled between the parties before Mediation Center, Dwarka Courts. After failure of the settlement talks between the parties, defendant no. 1 stopped appearing in the matter and to pursue CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 6 of 30 his application seeking leave to defend and seeking condonation of delay in filing the application for leave to defend. Accordingly, court notices were directed to be issued to all the defendants. The aforesaid court notices were received back duly served upon defendants no. 1 & 2 as well as upon Ld. Counsels for defendants no. 1 & 2 however, they have not bothered to appear despite receipt of the aforesaid court notices and accordingly the court is constrained to dispose off applications moved on behalf of defendant no. 1 on the basis of material available on record after hearing the submissions made on behalf of plaintiff.
5. It is submitted on behalf of the plaintiff by Ld. Counsel for the plaintiff that the defendant no. 1 has failed to give any plausible explanation for delay in filing the application for leave to defend by him. It is further submitted by Ld. Counsel for the plaintiff that even the submissions made in the aforesaid application seeking condonation of delay in filing the application for leave CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 7 of 30 to defend are contrary to the record in as much as though it has been submitted by defendant no. 1 in his aforesaid application, that he was served with the summons for judgment in the suit on 18.07.2012 however, a bare perusal of report on summons of defendant no. 1 shows that the summons were duly served upon the defendant no. 1 through his daughter on 28.05.2012.
6. I have heard the aforesaid submissions made on behalf of plaintiff and have also perused the record. A perusal of record shows that the summons for judgment were duly served upon defendant no. 1 on 28.05.2012 through his daughter and there is no report available in the file which shows that the summons were actually served upon defendant no. 1 on 18.07.2012, as alleged by defendant no. 1 in his application seeking condonation of delay in filing the application for leave to defend. In the absence of any explanation on the part of defendant no. 1 for not filing the application seeking leave to defend within a period of ten days from the date of service of CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 8 of 30 summons for judgment upon him i.e. from 28.05.2012, the delay in filing the aforesaid application by defendant no. 1 cannot be condoned. Even otherwise, in my considered opinion, the defendant no. 1 has failed to disclose any defence in his application seeking leave to defend in the suit in as much as defendant no. 1 has not denied that he had availed the loan in question from the plaintiff bank and had executed the loan agreement as well as the demand promissory note. He had further not denied his signatures on the acknowledgment dated 14.12.2005 and 01.12.2008 and only defence sought to be raised by him to the suit of plaintiff is that he had already made a payment of Rs. 50,000/ approximately towards the aforesaid loan to the plaintiff bank which has not been adjusted by the plaintiff bank in order to calculate the outstanding amount. The aforesaid defence, in my considered opinion, is sham and practically moonshine in as much as a bare perusal of the statement of account of plaintiff bank which is duly certified as CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 9 of 30 per the Bankers' Books Evidence Act shows that the plaintiff bank has credited a sum of Rs. 42,000/ approximately in the aforesaid account towards various payments made by defendant no. 1 to the plaintiff bank from time to time. The defendant no. 1 has failed to place on record any document to show payment made by him in addition to and other than the aforesaid payments reflected by the plaintiff in its statement of account.
7. Another defence sought to be raised by defendant no. 1 is that the alleged acknowledgment dated 14.12.2005 and 01.12.2008 were got signed by the plaintiff bank from him at the time of his availing the loan in the year 2003 and the same were not signed on the dates mentioned in the aforesaid acknowledgment letters. The aforesaid defence, in my considered opinion, is also not borne out from the material available on record in as much as a bare perusal of acknowledgment dated 14.12.2005 shows that the form which has been signed by the plaintiff acknowledging CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 10 of 30 his liability itself was printed in the year 2005 and as such there is no question of the plaintiff signing the same in the year 2003 along with demand promissory note.
8. Thus, in my considered opinion, the application moved on behalf of defendant no. 1 seeking leave to defend is not maintainable not only on the ground that the same was not filed by defendant no. 1 within the prescribed period of limitation i.e. within a period of ten days from the service of summons for judgment upon him, but also the same is not maintainable on merits. In addition, none has come forward on behalf of defendant no. 1 to advance arguments on the aforesaid applications despite repeated opportunities. Thus both the applications moved on behalf of defendant no. 1 seeking leave to defend and seeking condonation of delay in filing the same are accordingly dismissed.
9. Now, coming to the application of the defendant no. 3 seeking leave to defend filed by defendant no. 3 on 30.05.2013. In the CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 11 of 30 aforesaid application seeking leave to defend, two objections have been raised by defendant no. 3 to the maintainability of the present suit. First objection is regarding the territorial jurisdiction of this court in as much as according to defendant no. 3 this court has no territorial jurisdiction to entertain and try the present suit since neither any of the defendants nor the plaintiff resides/ works for gain within the territorial jurisdiction of this court. Besides, according to him, no part of cause of action has arisen within the jurisdiction of this court. Perusal of the file shows that defendant no. 3 was served with the summons of the suit way back on 02.11.2011 whereupon he entered his appearance on 11.11.2011 thereby furnishing his address for service of summons for judgment upon him. In case the defendant no. 3 was willing to raise an objection with regard to the territorial jurisdiction of this court in trying the present suit, the said objection should have been raised by defendant no. 3 on the date of his entering appearance i.e. on 11.11.2011. It is CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 12 of 30 settled legal position in terms of provisions of Section 21 that the objection as to place of suing should be taken by the defendant at the earliest possible opportunity. It is further settled legal position that in case the objection is not taken on the earliest possible opportunity it cannot be allowed to be taken at a subsequent stage except in the cases where a consequential failure of justice has occurred. It is also well settled that lack of territorial jurisdiction in a court does not go to the root of the matter and defendant can always waive the aforesaid objection.
10. In the case in hand, the defendant no. 3 had entered his appearance on 11.11.2011 and by furnishing his address for service of summons for judgment upon him he had actually submitted to the jurisdiction of this court while waiving the objection to lack of territorial jurisdiction in the court and the said objection cannot be allowed to be raised by him for the first time in his application for leave to defend. The aforesaid defence sought to be raised by defendant no. 3 is accordingly CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 13 of 30
not tenable.
11. Coming now to the second objection raised by defendant no. 3 to the maintainability of the suit on the ground that the present suit qua defendant no.3 is barred by limitation. It is submitted by counsel for defendant no. 3 that the present suit qua defendant no. 3 is barred by limitation in as much as the alleged letter of guarantee was executed by defendant no. 3 way back in the month of January 2003 whereas the present suit has been filed by the plaintiff against defendant no. 3 in the year 2011 after expiry of almost 8 years without there being any acknowledgment on the part of defendant no. 3 in terms of Section 18 of the Limitation Act which could have extended the period of limitation for filing of the present suit by the plaintiff against the defendant no. 3. It is submitted by him that plaintiff has placed on record two acknowledgments dated 14.12.2005 and 01.12.2005, however, both the aforesaid acknowledgments are signed by defendant no.1 only. He submits that in view of CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 14 of 30 provisions of Section 18 of the Limitation Act, the acknowledgment by a borrower cannot extend the period of limitation for filing of the suit against the guarantor.
12. On the other hand, it is submitted by the counsel for plaintiff that the present suit filed by the plaintiff against all the defendants is well within the limitation. He submits that the present suit qua defendant no. 1 is admittedly within the prescribed period of limitation in as much as the loan in question was availed by defendant no. 1 from the plaintiff on 15.01.2003 which was repayable by him in 60 EMIs of Rs. 3500/. Before the expiry of prescribed period of limitation for filing the suit for recovery of the aforesaid amount, defendant no. 1 signed an acknowledgment dated 14.12.2005 and as such a fresh period of limitation started running from the date of aforesaid acknowledgment and the suit would have been barred by time had it not been filed before 13.12.2008. However, according to him, before the aforesaid cause of action would CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 15 of 30 have become barred by time, the defendant no. 1 again signed another acknowledgment on 01.12.2008 and as such a fresh period of limitation will start running from the aforesaid date. The plaintiff, according to him, has filed the present suit within a period of three years from the date of last acknowledgment signed by defendant no. 1 and as such the present suit qua defendant no. 1 is well within the prescribed period of limitation. It is further submitted by him that as per the provisions of Section 128 of the Contract Act, the liability of a guarantor is coextensive with that of a borrower and since the suit qua defendant no. 1 has been filed by the plaintiff within the prescribed period of limitation, it cannot be alleged by defendant no. 3, who has executed the letter of guarantee in favour of the plaintiff bank securing the repayment of loan by defendant no. 1, that the suit qua him has become barred by time. It is submitted by him that in view of the aforesaid provisions as well as in view of the fact that the guarantee given CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 16 of 30 by defendant no. 3 was a continuing guarantee till the time all the liability under the loan agreement in question is discharged by defendant no. 1, the suit qua defendant no. 3 cannot be said to be barred by limitation.
13. Ld. Counsel for defendant no. 3 has relied upon a judgment passed by Ld. Debt Recovery Appellate Tribunal, Chennai on 29.09.2005 in RA no. 27/02 titled as Indian Bank Vs. Mrs. Humera Mumtaz and others in support of his submission that in the absence of any acknowledgment of debt by the defendant no. 3/ guarantor confirming his liability towards the plaintiff bank he is discharged and the suit filed by the plaintiff against him will be barred by time in as much as the acknowledgment given by the borrower shall not bring the same within limitation so far as guarantor is concerned. It is further submitted by him that though the defendant no. 3 has agreed to exclude the application of provisions of Section 132, 134, 135, 139 and 141 of the Contract Act vide Clause 4 of the letter of guarantee, CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 17 of 30 however, according to him, in view of the aforesaid judgment passed by Ld. Debt Recovery Appellate Tribunal, Chennai, the aforesaid condition contained in letter of guarantee is void being against public policy in view of provisions of Section 23 of the Contract Act. Similarly, according to him, Clause 13 of letter of guarantee is also void in as much as through the aforesaid clause, the parties have entered into an agreement contrary to the mandatory provisions of the Limitation Act. Learned counsel for defendant no. 3 has further relied upon judgment of Hon'ble Delhi High Court in M/s Vijay Polymers Pvt. Ltd. and Another Vs. M/s Vinay Aggarwal.
14. On the other hand learned counsel for plaintiff has relied upon judgment of Hon'ble Delhi High Court in Subhash Chand and Ors. Vs. State Bank of Patiala and Anr. 2014 (208) DLT 339. He has further relied upon judgment of Hon'ble Supreme Court in Kailash Nath Agarwal and Ors. Vs. Pradeshiya Industrial CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 18 of 30 & Investment Corporation of U.P. Ltd. and Another (2003) 4 Supreme Court Cases 305 and judgment of Hon'ble Chattisgarh High Court in State Bank of India Vs. Dr. Anand R. Ahuja passed in FA no. 119 of 1993 dated 03.04.2012 in support of his submission that the suit filed by the plaintiff bank against defendant no. 3 is well within the prescribed period of limitation in terms of Clauses 2,4,10, 12 and 13 of letter of Guarantee dated 15.01.2003 while read in the light of provisions of Section 128 of the Contract Act.
15. I have heard the submissions made on behalf of the parties and have also perused the record. Before proceeding further, I deem it appropriate to reproduce Clauses 2,4,10, 12 & 13 of Letter of Guarantee dated 15.01.2003 herein below:
Clause 2. I/ we expressly declare that this Guarantee shall be for the period before mentioned a continuing guarantee to you for any amount from time to time not exceeding as CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 19 of 30 aforesaid the said sum of Rs.1,50,000/ (Rupees One Lac and Fifty Thousand only) on the whole due on the said account/s together with interest and charges thereon and whether or not from time to time there be nothing owing on any or all the said account/s or the same be from time to time brought to credit.
Clause 4: I/ we hereby consent to your making any variance that you may think fit in the terms of your contract with the Principal to your determining, enlarging or varying any credit to him/ them, to your making any composition with him/ them, or promising to given him/ them time or not to sue him/ them and to your parting with any security you may hold for the guaranteed debt. We also agree that we shall not be discharged from our liability by your releasing the principal or by an act or omission of your the legal consequence of which may discharge the principal or by any act of yours which would, but for his present provision, be inconsistent without CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 20 of 30 rights as sureties or by your omission to do any act which but for this present provision, your duty to us would have required you to do. Though as between the Principal and ourselves I/We am/ are surety/ sureties only, I/ we agree that as between yourselves and me/us I/ We am/ are surety/ sureties only, I/ we agree that as between yourselves and me/ us I/ We am/ are surety/ sureties only, I/we agree that as between yourselves and me/us I/ We am/ are Principal debtors jointly with the Principal and accordingly we shall not be entitled to any of the right conferred on sureties by Section 133, 134, 135, 139 and 141 of the Contract Act.
Clause 10 I/We further agree that the amount hereby guaranteed shall be due to you on demand after notice requiring payment of the same shall have been delivered or sent through the post by registered letter addressed to me/us to my/ our or our representative's last known place of business or residence.
CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 21 of 30 Clause 12 I/We further agree and declare that this Guarantee shall be continuing guarantee irrespective of any sum or sums which may be paid into the account/s of the Principal at any time during the continuance of this Guarantee and shall remain in force until cancelled under your written authority. The amount then due shall be subject to this Guarantee and be secured thereby.
Clause 13 I/We further agree that any admission or acknowledgment in writing by the Principal Debtor of the amount of indebtedness of the Principal Debtor or otherwise in relation to the subject matter of this guarantee or any judgment or any award obtained by you against the Principal Debtors shall be binding on me/us and I/We accept the correctness of any statement of account served on the principal debtor which is duly served by any Manager or Officer of the Bank and the same shall be binding and conclusive as against me/us also, and I/We CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 22 of 30 further agree that in making a payment we shall be treated as my/ our duly authorized agent for purpose of Indian Limitation Act of 1963.
16. In my considered opinion, the judgment passed by Ld. Debt Recovery, Appellate Tribunal, Chennai on 29.09.2005 in RA no. 27/02 titled as Indian Bank Vs. Mrs. Humera Mumtaz and others relied upon by Ld. Counsel for defendant no. 3 is not applicable to the facts of the present case in as much as it has no where been the case of defendant no. 3 in the application seeking leave to defend that he was forced to sign the letter of guarantee which was containing Clause 4 and 13 whereby the defendant no. 3 had waived his rights under Section 133, 134, 139 and 141 of the Contract Act. Moreover, in my considered opinion, even Clause 13 contained in the letter of guarantee cannot be considered to be void in view of the fact that Section 18 contemplates the acknowledgment in writing by the duly authorized agent and through the aforesaid Clause no. 13 the CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 23 of 30 parties cannot be said to have entered into a contract against any statute, but defendant no. 3 has merely appointed defendant no. 1 as his agent for the purposes of signing an acknowledgment within the meaning of Section 18 of the Limitation Act. The execution of letters of acknowledgment dated 14.12.2005 and 01.12.2008 by defendant no. 1 has not been denied by defendant no. 3. The only plea sought to be raised by defendant no. 3 is that the aforesaid letters do not bind defendant no. 3 so as to extend the period of limitation for filing of a suit by the plaintiff against him. The aforesaid contention made on behalf of defendant no. 3 is not tenable in view of unequivocal agreement entered into by defendant no. 3 in Clause 13 of letter of guarantee.
17. Even otherwise, a bare perusal of terms and conditions of letter of guarantee executed by defendant no. 3 in favour of plaintiff bank, more particularly, the perusal of Clause 2,10 and 12 shows that the present case is squarely covered by judgment of CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 24 of 30 Hon'ble Delhi High Cout in Subhash Chand and Another Vs. State Bank of Patiala and Anr. (supra) wherein the court was dealing with an appeal where a substantial question of law as to whether the acknowledgment of debt by the principle debtor would not extend limitation qua the guarantor had arisen and the court after considering the terms and condition contained in the letter of guarantee in the aforesaid case which were similar to the terms and conditions of letter of Guarantee in the present case, had answered the aforesaid question in negative and has held that the acknowledgment of debt by principal debtor would extend the limitation qua the guarantor since the guarantor's liability in terms of guarantee agreement was to arise only on demand by creditor after original borrower has failed to repay the loan amount. It has been held in the aforesaid judgment as well as several judgments passed by Hon'ble Supreme Court relied upon by Hon'ble Delhi High Court in the aforesaid judgment that in cases where the guarantee given by the CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 25 of 30 guarantor is a continuing guarantee and the liability of guarantor is to arise on a demand raised by the creditor the cause of action for filing the suit qua the guarantor would arise only on refusal by the guarantor to meet that demand.
18. In the present case, the plaintiff for the first time raised the aforesaid demand against the guarantor on 13.01.2011 by way of legal notice receipt of which has not been denied by defendant no. 3 in his application for leave to defend, when the account / liability of defendant no. 1/ borrower was still alive in view of acknowledgments dated 14.12.2005 and 01.12.2008, the present suit filed by the plaintiff against defendant no. 3 on 05.10.2011 is will within limitation in as much as in terms of Clause 2 and 12 of letter of guarantee dated 15.01.2003, the defendant no. 3 has given a continuing guarantee and in terms of Clause 10 the amount guaranteed through the aforesaid letter of guarantee should have become due to the plaintiff bank on demand after notice requiring payment of the same is delivered or sent CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 26 of 30 through post by registered letter addressed to the guarantor on his last known place of business or residence. It is not the case of defendant no. 3 as per application seeking leave to defend that any such demand has been raised by the plaintiff from defendant no. 3 prior to the legal notice dated 13.01.2011. Thus, in my considered opinion, the defence sought to be raised by defendant no. 3 in his application seeking leave to defend is sham and practically moonshine and the same does not raise any triable issue. The application moved on behalf of defendant no. 3 is accordingly dismissed.
19. Perusal of the plaint shows that entire claim of the plaintiff for recovery of Rs.1,80,810/ against defendant no. 1 is based upon written contract in the form of demand promissory note and acknowledgment letters duly signed by defendant no. 1 whereas claim of the plaintiff qua defendant nos. 2 and 3 is additionally based on the letter of guarantee dated 15.01.2003 executed by them in favour of plaintiff. The plaintiff has relied upon the CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 27 of 30 statement of loan account of the defendant duly certified under the Bankers' Books Evidence Act. That the plaintiff has raised a demand for the aforesaid liquidated sum is supported by the office copy of the legal notice which is alleged to have been dispatched to all the defendants through Registered AD, original postal receipts in respect of which have also been placed on record by the plaintiff. The plaintiff has not sought any relief in the plaint which cannot be granted by the court under the provisions of Order 37 CPC. The suit of the plaintiff is also held to be within limitation. Applications seeking leave to defend moved on behalf of defendants no. 1& 3 have already been dismissed since they did not disclose any defence whereas defendant no. 2 has not filed any application seeking leave to defend despite service of summons for judgment upon him.
20. Accordingly, the plaintiff is held entitled to decree of Rs.
1,80,810/ in its favour and against all the defendants. The plaintiff is also held entitled to interest @ 14 % per annum on CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 28 of 30 the aforesaid amount from the date of filing of the present suit by the plaintiff against the defendant till the date of decree which is the agreed rate of interest between the parties as per the loan agreement. However, in view of the fact that the present claim does not arise out of any commercial transaction in view of provisions of Section 34 of CPC, the plaintiff is held entitled to a further interest @ 6 % per annum only on the decretal amount from the date of passing of the decree till the date of its actual realization. Defendants shall be jointly and severally liable to pay the aforesaid amount. Plaintiff is also held entitled to the cost of suit as per rules.
21. At this stage, Sh. Sushil Kumar Sapra, Ld. Counsel for plaintiff has filed a certificate of fees charged by him from the plaintiff bank. However, a perusal of the file shows that vakalatnama of the aforesaid advocate is not on record till today. Even today Sh. Sushil Kumar Sapra, Advocate has merely filed a memo of appearance on behalf of the plaintiff bank. He has failed to file CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 29 of 30 his vakalatnama despite repeated opportunities. Perusal of the file shows that vakalatnama of one Sh. Akash Aggarwal, Advocate has been filed on behalf of the plaintiff bank. The aforesaid vakalatnama has not been withdrawn by the said Advocate till today. No certificate of fees charged by the aforesaid Advocate from the plaintiff bank has been filed and as such the fees as per certificate dated 28.01.2015 filed by Sh. Sushil Kumar Sapra, Advocate cannot be considered while calculating the cost of the suit.
22. Decree sheet be prepared accordingly.
Announced in the open court on this 28th day of January , 2015 This order consists of thirty signed pages.
(Arun Kumar Garg) Civil Judge(SW)/Dwarka Courts New Delhi/28.01.2015 CS No. 731/11 Vijaya Bank Vs. Mahipal & Ors.
Order dated 28.01.2015 Page no. 30 of 30