Delhi District Court
M/S. Icici Bank Ltd vs Sanjeev Kumar on 30 January, 2021
DLCT010000392019
IN THE COURT OF SH. MAHESH CHANDER GUPTA:
DISTRICT JUDGE : (COMMERCIAL COURT)03, CENTRAL :
TIS HAZARI COURTS :DELHI
CS (COMM) No. 4/2019
M/s. ICICI Bank Ltd.,
Having its Registered Office at :
Landmark, Race Course Circle,
Vadodara 390007,
Inter Alia Having Its Branch Office at :
EBlock, Videocon Tower,
Jhandewalan Extention,
New Delhi - 110055.
Through its Authorised Representative
Mr. Mohit Grover ...........Plaintiff
Vs.
Sanjeev Kumar
S/o Sh. Saryu Prasad Srivastva
(Borrower)
R/o Flat #209, MIG Flats,
Metro Appartment,
Jahangir Puri,
Delhi110009. ...........Defendant
CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 1 of 15
Date of Institution : 03.01.2019
Date on which Judgment reserved : 13.01.2021
Date on which judgment pronounced : 30.01.2021
SUIT FOR RECOVERY OF RS. 6,53,307.97 (RUPEES SIX
LACS FIFTY THREE THOUSAND THREE HUNDRED SEVEN
AND PAISA NINETY SEVEN ONLY).
JUDGMENT
1. The present suit has been filed by the Plaintiff/ICICI Bank Ltd. against the Defendant/Sanjeev Kumar, for recovery of Rs.6,53,307.97 (Rupees Six Lacs Fifty Three Thousand Three Hundred Seven And Paisa Ninety Seven Only).
2. Briefly stated the relevant facts of the case as unfolded by the Plaint are that the Plaintiff Bank is a body incorporated under the provisions of the Companies Act, 1956 and a banking company under the provisions of the Banking Regulation Act, 1949 and is having its registered office at Land Mark, Race Course Circle, Vadadora390007 and inter alia having branch at EBlock, Videocon Tower, Jhandewalan Extention, New Delhi110055.
CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 2 of 15
3. It is stated that Mr. Mohit Grover is duly authorized representative of the plaintiff bank and is fully conversant with the facts of the case as per information received and derived from the records and the books of the plaintiff bank, maintained in usual and ordinary course of business. He is duly authorized, empowered and competent to sign and verify the pleadings for and on behalf of the plaintiff bank, institute the Suit in the court, prosecute the suit and to do all acts, deeds in general for due prosecution of the suit.
4. It is stated that the Defendant is a borrower to the loan agreement and the Defendant is available at the above mentioned address.
5. It is stated that in the month of April, 2015, the Defendant had approached and requested the plaintiff bank for grant of loan of Rs. 9,00,000/ for purchase of the Vehicle namely "RAPID AMBITION 1.5 TDI" and entered into a loan agreement under the loan cum hypothecation scheme of the plaintiff bank. The Defendant executed Credit Facility Application alongwith standard terms and conditions for said facility, deed of hypothecation and irrevocable power of attorney in favour of the plaintiff bank. The Defendant agreed to repay the said loan in 60 CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 3 of 15 Equated Monthly installments with interest as per the repayment schedule. The defendant also approached the plaintiff bank for sanction of personal loan an amount of Rs. 3,44,000.00 in the month of April2016 against the security of the vehicle namely "RAPID AMBITION 1.5 TDI" and entered into a loan agreement under the personal loan cum hypothecation scheme of the plaintiff bank. The Defendant executed Credit Facility Application along with standard terms and conditions for said facility, deed of hypothecation and irrevocable power of attorney in favour of the plaintiff bank. The Defendant agreed to repay the said loan in 36 Equated Monthly installments with interest as per the repayment schedule. The Defendant also secured the loan by way of hypothecating the vehicle.
6. It is stated that keeping in view the request of the Defendant, the plaintiff bank sanctioned a loan of Rs.9,00,000.00 and disbursed an amount of Rs. 8,99,550/ on 30.04.2015 to the dealer under loan account no. LADEL00032282573 as per request by the Defendant under the loan cum hypothecation scheme of the Plaintiff Bank and disbursed an amount of Rs.3,40,550/ to the Defendant on 12.05.2016 under loan account no. SPDEL00034418513 after deducting the amount towards the processing fees as per request by the Defendant CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 4 of 15 under the personal loan cum hypothecation scheme of the plaintiff bank.
7. It is stated that the Defendant agreed to repay the loan of Rs.9,00,000/ alongwith interest @ 10% in 60 Equated Monthly Installments of Rs.19,123/ under the loan account no. LADEL00032282573. The defendant also undertook to repay the loan amount of Rs.3,44,,000/ alongwith interest @ 16% in 36 Equated Monthly Installments of Rs. 12,094/ under loan account no. SPDEL00034418513. The Defendant executed Credit Facility Application, Deed of Hypothecation and Irrevocable Power of Attorney in favour of the plaintiff bank. The said Loan documents were executed on 29.04.2015 & 29.04.2016. The loans were subject to the terms and conditions of the documents which the Defendant executed in favour of the plaintiff bank.
8. It is stated that the Defendant loan numbers maintained by the Plaintiff Bank are LADEL00032282573 & SPDEL00034418513.
9. It is stated that the plaintiff bank had disbursed the loan amount of Rs.8,99,550/ to the dealer for delivery of the CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 5 of 15 vehicle namely "RAPID AMBITION 1.5 TDI" as per request made by the Defendant and the Defendant undertook to supply the Registration Number to the plaintiff bank.
10. It is stated that the vehicle of the Defendant is registered with the registration authority with registration No. "DL1CU8369" and the same was hypothecated in favour of the plaintiff bank in terms of the deed of hypothecation executed by the Defendant in favour of the plaintiff bank and the charge is registered with the RTO. The said vehicle is the security against the loan amount of Rs. 9,00,000/ & Rs. 3,44,000/.
11. It is stated that pursuant to the receipt of the loan the Defendant failed to adhere to the financial discipline of the repayment of the loan either towards principal or interest or charges thereon. Several Equated Monthly Installments were not paid and cheques/standing instructions issued by the Defendant were dishonored/returned back unpaid. The Defendant was served with reminders to pay the amount, which is due towards him as result of the nonpayment of the Equated Monthly Installments. Persistent requests were made by the officials of the plaintiff to the Defendant to abide by the terms of the agreement entered between the parties, he was also told CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 6 of 15 that the time was the essence of the contract, to which the Defendant has been promising from time to time but had failed to honor his commitments. The Defendant further failed to make the vehicle (which is a security) available for inspection to the officials of the plaintiff in consonance with the terms and conditions of the documents executed by the Defendant in favour of the plaintiff bank.
12. It is stated that the Defendant in terms of the Loan documents executed had paid an amount of Rs. 6,89,608/ (36 equated monthly installments) and has defaulted for an amount of Rs. 1,32,681/ (07 Equated Monthly Installments) and Rs.14,093/ towards late payment & cheque bouncing charges besides future installments of Rs.3,18,972.10 against the loan account no. LADEL00032282573 as on 19.11.2018. The defendant has paid Rs.2,67,243/ (22 Equated Monthly Installments) and had defaulted in repayment of Rs. 95,577/ (08 Equated Monthly Installments) towards equated monthly installments and Rs. 14,392/ towards late payment & cheque bouncing charges against the loan account no. SPDEL00034418513 as on 19.11.2018. Since there was default in repayment of the monthly installments, the plaintiff bank in terms of the Loan documents executed by the Defendant, CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 7 of 15 recalled the loan facility available to the Defendant by way of sending a loan recall notice dated 23.07.2018.
13. It is stated that the plaintiff duly notified unto the Defendant vide the said notice to make the payment of the outstanding amount and also hand over the peaceful possession of the vehicle, seeing the repayment track of the loan of the Defendant the plaintiff has finally decided to withdraw the facility provided to the Defendant, by a loan recall notice dated 23.07.2018. Despite the issuance of the notice the Defendant has neither cared to reply to the notice nor has made any effort to repay the outstanding amount and also to hand over the peaceful possession of the vehicle.
14. It is stated that as per the loan account maintained by the plaintiff bank the Defendant is liable to pay a sum of Rs.4,67,554.80 (Rupees Four Lacs Sixty Seven Thousand Five Hundred Fifty Four And Paisa Eighty Only) in the loan account no. LADEL00032282573 and and amount of Rs.1,85,753.17 (Rupees One Lakh Eighty Five Thousand Seven Hundred Fifty Three And Paise Seventeen Only) in the loan account no. SPDEL00034418513 totaling to an amount of Rs. 6,53,307.97 (Rupees Six Lac Fifty Three Thousand Three Hundred Seven CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 8 of 15 And Paisa Ninety Seven Only) towards principal interest, penal interest and other dues, which the defendant has failed to pay. Being aggrieved the Plaintiff has filed the present suit for the recovery of Rs. 6,53,307.97 against the Defendant.
15. Summons of the suit was issued to the Defendant who despite service did not enter appearance in the Court and was accordingly proceeded exparte by the Court vide order dated 17.12.2020.
16. In support of its case Plaintiff Bank has produced and examined one witness namely PW1 Sh. Mohit Grover, Authorised Representative.
PW1 Sh. Mohit Grover, Authorised Representative tendered his affidavit of evidence in his examinationinchief containing the averments on the lines of the petition filed by him and proved the same as Ex.PW1/A bearing his signatures at Point 'A' & 'B' and also proved the copy of Power of Attorney in his favour as Ex.PW1/1 (OSR); Credit Facility Application Forms as Ex.PW1/2 & Ex. PW1/2A; Unattested deeds of Hypothecation as Ex.PW1/3 & Ex. PW1/3A; Irrevocable Power of Attorney as Ex. PW1/4 & Ex. PW1/4A ; Loan Recall notices CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 9 of 15 dated 23.07.2018 & 24.08.2018 as Ex.PW1/5 (Colly); photocopy of postal receipts as Mark X (Colly); Statements of account dated 19.11.2018 of loan account no.
LADEL00032282573 as Ex. PW1/6; Statements of account dated 19.11.18 of loan account no. SPDEL00034418513 as Ex.PW1/6A ; Certificate Under Section 2A of the Banker's Book of Evidence Act, 1891 as Ex. PW1/7 and Certificate Under Section 65B of the Indian Evidence Act, 1872 as Ex. PW1/8.
17. Plaintiff closed its evidence on 13.01.2021.
18. I have heard the Learned Counsel for the Plaintiff at length and have also carefully perused the entire record and the relevant provisions of the law.
19. It is a well settled legal proposition that no cross examination on a particular point/averment amounts to an admission on the part of the opposite party. In case J.C. Enterprises (Regd.) (M/s) V/s Ranganatha Enterprises 2011 II AD (DELHI) 418 it was held that when witness deposes particular fact and no suggestion to contrary is given during his crossexamination. Party against whom deposition is made is deemed to have admitted that part of deposition which thereby CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 10 of 15 remains unchallanged.
20. It is to be mentioned that even though there is nothing on the record to indicate as to why the testimony of the Authorized Representative of the Plaintiff should not be believed nor is there any impediment of any kind for grant of the amount claimed yet before accepting the testimony of the Authorised Representative of the Plaintiff as true and correct, the same necessarily has to be weighed on the anvil of proof, of the existence of the ground, on which the recovery of the amount has been claimed.
21. The instant suit has been filed by the Plaintiff for the recovery of Rs. 6,53,307.97 against the Defendant.
22. From the documents and the material on the record, it is clearly established that Plaintiff Bank granted loan of Rs.9,00,000/ to the Defendant for the purchase of vehicle namely "RAPID AMBITION 1.5 TDI", bearing Registration No. DL1CU8369 vide Loan Account No. LADEL00032282573 (Ex. PW1/2A, Ex.PW1/3A & Ex. PW1/4A). The said loan was to be paid in 60 (Sixty) EMIs of Rs.19,123/ (Rupees Nineteen Thousand One Hundred And Twenty Three Only) but the CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 11 of 15 Defendant has paid only 36 (Thirty Six) EMIs and defaulted in payment of 07 (Seven) EMIs and thus defaulted the repayment schedule. The Plaintiff Bank also sanctioned Personal Loan of Rs.3,44,000/ to the Defendant in the Month of April, 2016 against the security of the vehicle namely "RAPID AMBITION 1.5 TDI", bearing Registration No. DL1CU8369 vide Loan Account No. SPDEL00034418513 (Ex. PW1/2, Ex.PW1/3 & Ex. PW1/4). The said loan was to be paid in 36 (Thirty Six) EMIs of Rs. 12,094/ (Rupees Twelve Thousand Ninety Four Only) but the Defendant has paid only 22 (Twenty Two) EMIs and defaulted in payment in payment of 08 (Eight) EMIs and thus defaulted the repayment schedule. Plaintiff Bank recalled the said loan facility vide notices dated 23.07.2018 & 24.08.2018 Ex.PW1/5 (Colly) whereby requested the defendant to make the payment of the outstanding amount of Rs.4,69,384/ as due on 10.07.2018 against the loan account no.LADEL00032282573 & amount of Rs.1,66,123/ as due on 18.08.2018 against the loan account no.SPDEL00034418513 and also to hand over the peaceful possession of the aforesaid vehicle but the Defendant despite service of notice neither paid the outstanding amount of Rs.4,69,384/ as due on 10.07.2018 & Rs.1,66,123/ as due on 18.08.2018 nor handed over the peaceful possession of the abovesaid vehicle.
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23. The Plaintiff has proved the Statements of Account both dated 19.11.2018 Ex. PW1/6 & Ex.PW1/6A (Colly) from which it is evident that the Defendant has made the last payment to the Plaintiff on 14.05.2018 and the present suit has been filed on 03.01.2019, hence the suit is within the period of limitation. Further as per the Prepayment Notices both dated 19.11.2018 Ex.PW1/6 & Ex. PW1/6 (Colly), a sum of Rs.4,09,391/ & Rs.1,51,326.60 is due as Principal; Rs. 8,453/ & Rs. 8,547/ as Late payment penalty; Rs. 5,310/ & Rs. 5,310/ as cheque bouncing charges and other charges; Rs. 329.60 & Rs.535 as Interest for the month; Rs.24,154.10 & Rs.8,928.27 as Prepayment charges and Rs. 19,916.50 & Rs.11,106.30 as Interest on pending installment, totaling Rs.6,53,307.97. The perusal of the Prepayment Notices both dated 19.11.2018 Ex. PW1/6 & Ex. PW1/6A (Colly) clearly indicates that only in case of prior payment/prepayment of the loan amount/outstanding loan amount i.e., of the clearing of the loan amount/outstanding loan amount before the expiry of the scheduled period chartered out for the payment of last EMI, then only the Prepayment charges is applicable "on the outstanding amount of the facility or total interest (unexpired period interest and outstanding interest) CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 13 of 15 whichever is lower", but in the instant case undisputably, no request of the Defendant either in writing or in any other mode expressing the desire/intention of the Defendant for clearing of the loan amount/outstanding loan amount prior to the expiry of the EMI schedule period has been placed/proved on the record by the Plaintiff. Therefore, Plaintiff does not become entitle for the Prepayment charges on the outstanding amount of Rs. 6,53,307.97 and after deducting the Prepayment charges of Rs. 24,154.10 & Rs.8,928.27 from the said total amount of Rs. 6,53,307.97, the amount comes to Rs.6,20,226/, for the recovery of which the Plaintiff has filed the present suit.
24. PW1 Sh. Mohit Grover, Authorised Representative was not crossexamined on behalf of the Defendant and the Defendant opted to stay away from the proceedings for the reasons best known to them. There is nothing on the record to suggest as to why the testimony of PW1 Sh. Mohit Grover should not be believed.
25. Since the Defendant defaulted the repayment schedule and as discussed and analysed hereinabove an amount of Rs. 6,20,226/ (Rupees Six Lacs Twenty Thousand CS (COMM) No. 4/2019 ICICI Bank Ltd. Vs. Sanjeev Kumar Page No. 14 of 15 Two Hundred Twenty Six Only) is held to be due against him, which the Defendant has failed to pay, there is nothing on the record to suggest nor there is other compelling reason as to why the claim of the Plaintiff bank should not be allowed.
26. In view of above and in the circumstances, Plaintiff is held entitled for the recovery of amount of Rs. 6,20,226/ (Rupees Six Lacs Twenty Thousand Two Hundred Twenty Six Only). Accordingly, a decree for recovery of an amount of Rs.6,20,226/ (Rupees Six Lacs Twenty Thousand Two Hundred Twenty Six Only) is passed in favour of the Plaintiff and against the Defendant. Plaintiff is also held entitled to the interest @ 9 % per annum on the said amount from the date of filing of the suit till the date of decree and thereafter till its realization. Plaintiff is also entitled to the costs of the suit.
27. Decree Sheet be prepared accordingly after payment of deficient Court fee, if any by the Plaintiff.
Digitally signed MAHESH by MAHESH
CHANDER
CHANDER GUPTA
GUPTA Date: 2021.01.30
15:19:00 +0530
Announced in the open (MAHESH CHANDER GUPTA)
Court on 30.01.2021 District Judge (Commercial Court)03 Central, Tis Hazari Courts, Delhi.
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