Delhi District Court
Bank Of India vs Bishamber Singh on 23 January, 2025
IN THE COURT OF SH. ANURAG SAIN,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
CS(COMM.) 15/2024
In the matter of:
Bank of India
A Nationalized Bank Under the Ministry of
Finance, Government of India.
having its Head Office at
Star House,
C-5, G-Block, BKC, Bandra Kurla Complex,
Bandra (East)
Mumbai
Along having its branch office
amongst other places at:
Mandir Marg Branch,
Swati Working Women Hostel Mandir Marg,
New Delhi-110001 ...Plaintiff
Versus
Bishamber Singh,
S/o Sh. Khimman Singh
R/o House No. B-275,
Wireless Colony, New Manglapuri,
Mehrauli, South Delhi-110030.
Also at : Kanishka Stitch Solution,
Rao Jagmal Singh, Compound Sector-18
Gurgaon, Near Lumax, Haryana-122015.
....Defendant
Date of Institution : 05.01.2024
Conclusion of arguments : 09.01.2024
Date of Judgment : 23.01.2024
Appearance:
Plaintiff : Sh. V.P. Tiwari, Ld. Counsel for the plaintiff
with Ms. Mamta Gautam, Manager
Defendant : None. Ex-parte
CS(COMM.) 15/2024 Page no. 1 of 10
Bank of India Vs Bishamber Singh
JUDGMENT
1. This is a suit for recovery of ₹6,62,909.22p (Rupees Six Lakhs Sixty Two Thousand and Nine Hundred Nine and Twenty Two paise) under the provisions of the Commercial Courts Act, 2015 (hereinafter referred to as 'The Act') along with interest @ 12.35% per annum with monthly rest w.e.f.02.12.2023 till its actual recovery.
2. Brief facts of the case are that plaintiff bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings Act 1970 having its Head Office at Mumbai and Branch office at Mandir Marg New Delhi. It is averred that the plaintiff bank was approached by the defendant Mr. Bishamber Singh in the month of January 2021 for seeking the financial facility in the form of Mudra/Term Loan for the business purposes and executed loan documents/security documents i.e. Composite Agreement; Hypothecation cum loan agreement; RBLR agreement; demand promissory note; L-435, L-440; Declaration L-515 and; undertaking and authority etc. Vide sanction letter dated 21.01.2021, the plaintiff bank sanctioned loan of ₹9,00,000/-. Thereafter bank account no.60527311000151 was opened in the name of defendant.
3. It is averred that as per the terms and conditions laid down under the loan documents, the loan of Rs.9.00 lakhs was repayable in 60 equated monthly installments of Rs.18,618/- per month with @2% yearly BOIMCLR interest @ 8.85% (floating as then applicable) per annum with monthly rests excluding other charges.
CS(COMM.) 15/2024 Page no. 2 of 10 Bank of India Vs Bishamber Singh
4. It is averred that the defendant utilized the loan but did not maintain financial discipline. The loan account was declared Non Performing Asset (NPA) on 29.05.2023. Thereafter, even a Legal notice dated 14.06.2023, thereby calling upon the defendant to make the payment and despite service he did not pay heed to the notice and it remained unanswered. Hence the suit of the plaintiff.
5. Pre-litigation mediation between the parties remained unsuccessful and there is a Non-Starter Report dated 31.10.2023, issued by the concerned New Delhi District Legal Services Authority.
6. The sole defendant was served with the summons the suit and put in his appearance through counsel on 05.04.2024. On the request of parties, the matter was sent to mediation, but remained unsettled. Defendant filed its written statement taking preliminary objections as to the suit filed by the plaintiff is completely false and frivolous; the plaintiff has not approached the Court with clean hands. On merits, it is averred that the defendant actually approached the bank for taking financial facility but never wanted to apply for Mudra/Term Loan of Rs.9.00 lakhs but he was told that if he applies for Mudra/term loan, his rate of interest will lower down by 6% by the end of one year and that the defendant was never acknowledged the conditions willfully and he was fooled by the bank officials. It is averred that defendant approached the bank officials on different occasions to make request for lowering down the rate of interest as defendant has suffered loss in his business due to Covid. It is also averred that it was never a case of malafide or dishonest intentions from the end of the defendant.
CS(COMM.) 15/2024 Page no. 3 of 10 Bank of India Vs Bishamber Singh
7. Replication to the written statement was not filed by the plaintiff.
8. Vide order dated 19.11.2024 following issues were framed:
1. Whether plaintiff is entitled for the recovery of the suit amount, as claimed? OPP.
2. Whether plaintiff is entitled for interest on the suit amount and if so, at what rate and for what period?
3. Whether the plaintiff has no cause of action and the plaintiff has concealed material facts from the Court? OPD.
4. Any other relief, if any?
9. Thereafter, defendant stopped appearing in the present matter and thus vide order dated 09.01.2025, he was proceeded exparte.
10. In the evidence, plaintiff has examined PW-1 Ms.Mamta Gautam, its Senior Manager/Authorized Representative, who tendered her affidavit in evidence as Ex.PW-1/A, and has referred and proved the following documents:
S. NO Documents Exhibit 1 Authority letter. Ex.PW-1/1
2. Loan application along with Ex.PW-1/2 photocopies of documents CS(COMM.) 15/2024 Page no. 4 of 10 Bank of India Vs Bishamber Singh
3. Sanction letter . Ex.PW-1/3
4. Form L-516, Composite Ex.PW-1/4 agreement
5. CHA-I, Hypothecation Ex.PW-1/5
6. RBLR Agreement Ex.PW-1/6
7. D.P. Note L-434, Copy of bearer Ex.PW-1/7 and Ex.PW-1/8 letter L-435 and Copy of and Ex.PW-1/9 installment letter L-440
8. Declaration L-515 Ex.PW-1/10
9. Undertaking and undertaking for Ex.PW-1/11 and repayment of EMI Ex.PW-1/12
10. NPA Certificate Ex.PW-1/13
11. Office copy of legal notice Ex.PW-1/14
12. Copy of account statement Ex.PW-1/15
13. Non starter report Ex.PW-1/16
14. Certificate under Bankers' Book Ex.PW-1/17.
of Evidence Act
11. I have heard Sh.V.P. Tiwari, Ld. counsel for the plaintiff, and perused the record.
12. My issue-wise findings in the present matter are as under:
Issue no.(3)
3) Whether the plaintiff has no cause of action and the plaintiff has concealed material facts from the Court? OPD
13. Onus to prove this issue was on the defendant. In the present case, defendant stopped appearing after filing the written CS(COMM.) 15/2024 Page no. 5 of 10 Bank of India Vs Bishamber Singh statement. In his written statement, defendant took a plea that the plaintiff has no cause of action and plaintiff has concealed material facts from the Court. In his written statement defendant averred that he actually never wanted to apply for Mudra/Term Loan of 9.00 lakh and the defendant approached the bank on January 2021 for taking of financial facility but not the Mudra Loan. It is also pleaded that the defendant was told orally that if you applied for Mudra/Term Loan, in that case your rate of interest as per the loan agreement will lower down by 6% by the end of one year.
14. It is not the case of the defendant that he never approached the plaintiff bank or obtained any loan, but as per his own case he visited the bank for obtaining the financial facility, but he has not specified that which kind of financial facility was needed by the defendant. The only plea taken by the defendant is that the bank officials assured him that he will have to pay rate of interest @6% per annum. PW-1 in her examination has proved on record RBLR (Repo Based Lending Rate) agreement as Ex.PW-1/6, wherein in para 2 thereof, it has been mentioned as under:
"2.........
.........
Term Loan of Rs.9,00,000/-
On floating interest rate basis calculated by BOI from time to time as above based on the RBI Repo Rate plus Mark Up plus BSP/BSD plus CRP, from time to time, presently 8.85% per annum with monthly rests and as may be reset by BOI as such intervals as it may deem fit."
CS(COMM.) 15/2024 Page no. 6 of 10 Bank of India Vs Bishamber Singh
15. This agreement was signed by the defendant. It is not the case of the defendant that he has not signed any document, nor obtained any loan from the plaintiff bank. Even, no cross- examination of the witness PW-1 was conducted by the defendant for proving its alleged plea nor defendant appeared in the witness box. Mere taking pleas in the written statement that too without any supporting document or material does not sustain in the eyes of law.
16. Thus this issue decides in favour of the plaintiff and against the defendant.
Issues no.(1) and (2).
1. Whether plaintiff is entitled for the recovery of the suit amount, as claimed? OPP.
And
2. Whether plaintiff is entitled for interest on the suit amount and if so, at what rate and for what period? OPP.
17. Both these issues are taken up together as they are inter- connected. Onus to prove these issues are on the plaintiff.
18. In order to prove its case, plaintiff has examined one witness. PW-1 Ms. Mamta Gautam has deposed on the lines of the averments made in the plaint and has proved various documents referred above in support of the claim. Her testimony has gone unrebutted as no cross-examination was conducted by the defendant. PW-1 is competent to depose as a witness on behalf of CS(COMM.) 15/2024 Page no. 7 of 10 Bank of India Vs Bishamber Singh the plaintiff bank being Authorized Representative on the basis of Authority letter Ex.PW-1/1. It is proved by way of oral testimony of witness PW-1 and the documentary evidence that defendant had applied for the loan from the plaintiff bank vide loan application Ex.PW-1/2, which was sanctioned vide sanction letter Ex.PW-1/3, which was duly acknowledged by the defendant. It is proved that defendant signed and executed the documents i.e. Composite Agreement L-516 Ex.PW-1/4; hypothecation-cum-loan agreement Ex.PW-1/5; RBLR agreement Ex.PW-1/6; Demand Promissory Note Ex.PW-1/7; Bearer Letter L-435 Ex.PW-1/8; Installment letter L-440 Ex.PW-1/9 and; declaration Ex.PW-1/10. Defendant has also signed undertaking Ex.PW-1/11 as well as undertaking for repayment of EMIs Ex.PW-1/12.
19. It is established that term loan of Rs.9,00,000/-was sanctioned and disbursed to defendant which was used by the defendant. Failure of the defendant to repay the loan amount to the plaintiff is proved by the deposition of PW-1 corroborated by various documents viz. NPA Certificate Ex.PW-1/13; Legal notice Ex.PW-1/14; and statement of loan account Ex. PW-1/15, filed along with Certificate under Bankers Book of Evidence Act Ex.PW-1/17.
20. In the present case, defendant did not cross-examine the witness of the plaintiff. There is nothing on record to disbelieve the testimony of PW-1 Ms. Mamta Gautam or to doubt the credibility of the documentary evidence. In view of the unrebutted evidence on record, it is established that defendant has failed to re-pay the loan amount despite notice and plaintiff has CS(COMM.) 15/2024 Page no. 8 of 10 Bank of India Vs Bishamber Singh proved its claim to recover ₹6,62,909.22p (Rupees Six Lakhs Sixty Two Thousand and Nine Hundred Nine and Twenty Two paise) from the defendant.
21. The cause of action in the present matter was arose when the defendant defaulted in the repayment of the installment amount, the last payment of Rs.12,000/- was made by the defendant on 22.09.2023 and the suit filed on 05.01.2024. Hence, the suit is well within the period of limitation.
22. Interest :
22.1. Plaintiff has also claimed pendent-lite and future interest @ 11.35% per annum (floating as now applicable) with monthly rest w.e.f. 02.12.2023 till its entire/actual recovery. I am of the opinion that keeping in view the nature of dispute, interest of justice would be served if the plaintiff is allowed pendente lite and future interest @ 8% per annum from 02.12.2023 till its realization.
23. Cost :
23.1. Plaintiff has also claimed the cost of the suit. In reference to Section 35 and 35A of CPC, it has been proved that defendant failed to pay the amount due despite repeated demands. Defendant chose not to appear before the Court during trial, despite service of summons. Hence, defendant is responsible for burdening the petition with this litigation and so defendant is liable to bear the cost to the extent of Court fee and lawyers fee etc. as per rules. Plaintiff is therefore, entitled for the cost of litigation.
CS(COMM.) 15/2024 Page no. 9 of 10
Bank of India Vs Bishamber Singh
Issue No.(4):
Relief:
24. In view of the above observations, discussion and findings, the suit for recovery is decreed in favour of the plaintiff and against the defendant for ₹6,62,909.22p (Rupees Six Lakhs Sixty Two Thousand and Nine Hundred Nine and Twenty Two paise), payable along with pendente lite and future interest @8% per annum from 02.12.2023 till the date of decree and from the date of decree till realization of the decreetal amount. Cost is also awarded in favour of the plaintiff and against the defendant to the extent of Court fee and Advocate's fee as per rules. Advocate's Fee certificate be filed by the plaintiff within 10 days failing which notional fee of Rs.10,000/- be allowed in the decree sheet.
25. Decree sheet be prepared accordingly.
26. File be consigned to the record room after due compliance. Digitally signed by ANURAG ANURAG Date:
SAIN SAIN 2025.01.23 16:56:40 +0530 Pronounced in the open Court (Anurag Sain) on this 23rd January 2025 District Judge (Commercial Courts)-01 New Delhi District, Patiala House Courts New Delhi CS(COMM.) 15/2024 Page no. 10 of 10 Bank of India Vs Bishamber Singh