Delhi District Court
Punjab National Bank vs Sh. Satish Chandra Saxena on 7 April, 2007
1
In the court of Sh. Parveen Singh: Civil Judge: Tis Hazari
Courts: Delhi.
Suit no. 74/05
In the matter of :
PUNJAB NATIONAL BANK
A body Corporate, constituted
under the Banking Companies
(Acquisition and Transfer of
Undertaking) Act, 1970 having
its Head office at 7, Bhikaji Cama
Place, New Delhi-110066 and
Branch office at Shakti Nagar,
Delhi-110007. .....Plaintiff.
Versus
1.Sh. Satish Chandra Saxena S/o Sh. G.K. Saxena, R/o Block No. 44, Quarter No. 2B, Sector -2, Gole Market, New Delhi-110001
2. Sh. K.P.S. Chauhan S/o Lt. Sh. N.S. Chauhan R/o 777, Baba Kharak Singh Marg New Delhi-110001.
Second Address.
Assistant in Directorate General of Ordinance Services, Master General of Ordinance Branch, Army Head Quarters, L Block, Church Road, New Delhi-110011. ....Defendants.
Suit for recovery Date of institution : 01.04.2005.
Date of decision : 07.04.2007.
2Judgment.
1 The present suit for recovery of Rs. 99,311/- has been filed by the plaintiff against the defendants through its authorised representative Sh. N.L. Arora.
2 The case of the plaintiff is that defendant no. 1 approached the plaintiff bank on 09.11.2001 for grant of term loan of Rs. 1,00,000/-. The said loan was accordingly sanctioned to defendant no. 1 on 09.11.2006. In consideration of the loan, the defendant no. 1 submitted an affidavit along with an irrevocable letter of authority authorizing his employer to remit salary and other amount payable to the plaintiff. Defendant no. 1 also gave 36 post dated cheques of Rs. 3,500/- each and also submitted an affidavit that he would pay the loan regularly and will not default in any manner and an irrevocable letter was also given by defendant no. 1 to plaintiff to debit a sum of Rs. 3,500/- every month to his saving account no. 17474 with the plaintiff branch at Shakti Nagar. The defendant no. 2 stood as a guarantor of the loan granted to defendant no. 1 and executed an agreement of guarantee dated 09.11.2001. Hence, defendant no. 2 is jointly and severally liable to pay all the demands and dues of the plaintiff. The loan was to be repaid in 36 installments of Rs. 3500/- each however, the defendant no. 1 defaulted in payment of installments. Thus, plaintiff sent a letter dated 27.09.2002 to defendant no. 1 informing him about the dishonour of the cheque of Rs. 3500/-. In the reply to the said letter, the defendant no. 1 assured to deposit the amount in cash of two EMI each on 10.12.2002, 10.1.2003, 10.02.2003 and 10.03.2003 but, despite the commitment, the defendant no. 1 failed to fulfil his promise. Plaintiff also sent registered letter dated 03.02.2003 to the employer of the defendant no. 1 requesting him to co-operate but, it had no effect. Last deposit of Rs. 3500/- was made by the defendant no. 1 on 25.03.2003. Thereafter, he paid no amount. As per the books of accounts of the plaintiff, a sum of Rs. 99,311/- inclusive of interest up to 31.03.2005 is due from the defendants. The 3 defendant no. 1 had also signed the balance confirmation letter dated 06.04.2002 and hence, the present suit.
3 Defendant no. 1 was served through publication in the daily 'Vir Arjun' and his non appearance, was proceeded Ex-parte on 20.10.2005.
4 Defendant no. 2 on being served with summons for settlement of issues filed his written statement. In the written statement, he took a preliminary objection that the plaintiff has not come before the court with clean hands. A further preliminary objection is taken that plaintiff should have recovered the amount from defendant no. 1 which it failed to do and therefore, defendant no. 2 is not liable to pay the amount.
5 On merits, it is again submitted that plaintiff should have recovered the amount from defendant no. 1 either by initiating the criminal proceedings against dishonour of 36 post dated cheques or from the employer of defendant no. 1. It is denied that defendant no. 2 stood as guarantor for defendant no. 1 or that he signed the agreement dated 09.11.2001 in favour of the plaintiff. It is further denied that any guarantee is continuing or existing. Rest of the plaint is denied for want of knowledge.
6 In the replication, the contents of the written statement are denied and, those of the plaint are reaffirmed:-
7 From the pleadings of the parties, following issues are framed:-
1. Whether plaintiff is entitled for recovery of Rs. 99,311/- as prayed for ? OPP.
2. Whether plaintiff is entitled to interest, if yes at what rate and for what period ? OPP.4
3. Relief.
8 Thereafter, plaintiff examined Sh. N.L. Arora as PW1 and Sh. M.M.L. Saraswat as PW2. On the other hand, defendant no. 2 examined himself as DW1.
9 My issue wise findings are as under:-
Issue no. 1.
Whether plaintiff is entitled for recovery of Rs. 99,311/- as prayed for ? OPP.
PW1 deposed that he is the power of attorney holder of the plaintiff and the photocopy of power of attorney was Ex. PW-1/1. He further deposed that plaint had been signed and verified by him. He also proved the statement of account as per the bankers books of evidence act vide Ex. PW-1/6.
PW2, Sh. M.M.L. Saraswat deposed that defendant no. 1 approached the plaintiff bank for grant of loan on 09.11.2001 which was sanctioned. The original application for loan is Ex. PW-2/1. He recognized the signatures of Sh. S.K. Bahl on the loan application. He further deposed that defendant no. 1 also signed and executed the term loan agreement dated 09.11.2001. The same is Ex. PW2/2. The original letter of authority dated 09.11.2001 authorizing the employer to remit the salary and other amount to the bank is Ex. PW2/3. The original performa E dated 09.11.2001 signed by defendant no. 1 is Ex. PW-2/4. The original affidavit of the defendant no. 1 is Ex. PW2/5. The original letter of authority dated 09.11.2001 is Ex. PW2/6. He further deposed that defendant no. 2 stood as a guarantor for defendant no. 1 and became jointly and severally liable to pay the loan taken by defendant no. 1 from the plaintiff. The original information form dated 09.11.2001 is Ex. PW2/8, Original agreement of guarantee is Ex. PW2/9, 5 original income certificate of defendant no. 1 dated 30.10.2001 is Ex.
PW2/10. He further deposed that he identified the signatures of defendant no. 1 on the balance confirmation letter dated 06.04.2002 which was signed by defendant no. 1 in his presence at point A. The said letter of confirmation is Ex. PW2/11.
During the cross examination of PW2, PW2 denied the suggestion that signatures of defendant no. 2 are forged and fabricated on the loan documents. He further denied that defendant no. 2 did not stand guarantor for defendant no. 1. He also denied that he did not counter sign the balance and security confirmation letter Ex. PW2/11. He further denied that Ex. PW2/8 is not signed by defendant no. 2.
On the other hand, defendant no. 2 examined himself as DW1. He deposed that defendant no. 1 procured the loan from plaintiff on forged and fabricated documents. He further deposed that he did not execute any agreement of guarantee dated 09.11.2001 in favour of the plaintiff and he never stood as guarantor vide Ex. PW2/8 and Ex. PW2/9. He further deposed that he did not give income certificate Ex. PW2/10 and the said documents were dishonestly procured and fabricated by defendant no. 1 without the knowledge of the defendant no. 2.
During his cross examination, he deposed that he also stood as guarantor for defendant no. 1 in another case where, the loan was granted by Gambit Leasing and Finance company to defendant no.
1. He further deposed that Ex. PW2/10 bears the signatures of Sh. Bharat Singh who was a Major of his department and the said letter was issued on his instructions at the request of defendant no. 1. He admitted that Ex. PW2/8 bears his photographs. He denied the signatures at point A on Ex. PW2/8. Interestingly, he also denied his signatures on Ex. DW1/P1 at point A which was a reply filed by him. He further denied his signatures at point A,B,C and D on Ex. PW2/9. He 6 further deposed that he had not made any complaint with the police against defendant no. 1 for fabricating the signatures as alleged in the affidavit. He denied that he stood as guarantor for defendant no. 1.
The above evidence against defendant no. 1 has gone unrebutted and I have no reasons to disbelieve the same. As regards defendant no. 2, he has denied his signatures on the guarantee agreement. He had also denied that he gave Ex. PW2/10 to the plaintiff and said that same was fraudulently procured by defendant no. 1 from him. However, during his cross examination, he admitted that Ex. PW2/10 which is income certificate issued by his employer on his instructions. This was the document issued by the employer of defendant no. 2 at his instructions and therefore, it was incumbent upon defendant no. 2 to explain how an when and under what circumstances, it came into the possession of plaintiff. Mere assertion that defendant no. 1 fraudulently procured this document from defendant no. 2 is not sufficient to discharge the onus to defendant no. 2. Defendant no. 2 denied his signatures on Ex. PW2/9 which is agreement of guarantee. Interestingly, when he was shown the reply to the application u/o 38 rule 5 of the plaintiff filed by him, he also denied his signatures on the same. It appears that witness was told to deny every signatures shown to him and therefore, without realizing what document was being shown, he straightway denied his signatures even on the reply admittedly filed by him on record. Therefore, the reliability of this witness's testimony is entirely shacky. Even otherwise, if the signatures of defendant no. 1 are compared with those on the guarantee agreement Ex. PW2/9, there is a clear cut similarity in the same. It is also to be seen that defendant no. 2 had earlier stood as guarantor for defendant no. 1 in another loan transaction with another finance company. Therefore, there is high probability that defendant no. 2 stood as guarantor for defendant no. 1 for the loan transaction in question. I am of the opinion that by preponderance of probabilities, plaintiff has proved that defendant no. 2 stood as guarantor for defendant no. 1 for the loan transaction in 7 question. Therefore, he jointly and severally with defendant no. 1, is liable to pay the dues of the plaintiff in respect of the present loan transaction. Accordingly, I find that plaintiff is entitled to recovery of Rs. 99,311/- as prayed for. Issue no. 1 is accordingly decided in favour of the plaintiff.
Issue no. 2.
Whether plaintiff is entitled to interest, if yes at what rate and for what period ? OPP.
On the point of interest, PW1 deposed that plaintiff is entitled to future and pendentelite interest @ 16% per annum with monthly rests which is current rate of interest as per RBI guidelines upon the suit amount. This testimony of the PW1 has gone unrebutted. As per loan agreement, defendants are liable to pay interest as per RBI guidelines applicable on date. I accordingly award simple interest @ 16% per annum to the plaintiff from the date of filing of the suit till the realization of the decreetal amount. Issue no. 2 stands disposed off.
Relief.
In view of my above discussion, the suit of the plaintiff is decreed against the defendants for an amount of Rs. 99,311/- along with interest @ 16% per annum from the date of filing of the suit till the realization of the decreetal amount. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open (Parveen Singh)
Court on 07.04.2007. Civil Judge/Delhi.
This judgment contains 7
pages and each page
bears my signatures
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