Delhi District Court
Uco Bank vs Shri Alok Kumar Goel on 26 February, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 203/08
Unique Case ID No. 02401C0844472008
UCO Bank,
a body corporate constituted under the
Banking Companies ( Acquisition &
Transfer of Undertakings) Act, 1970, having
its Head Office at 10 B.T.M. Sarani, Calcutta,
with branches at various places including
the branch at Karol Bagh, New Delhi .....Plaintiff
Versus
1. Shri Alok Kumar Goel.
Prop. M/s Indian Guru,
Son of Lt. Jai Prakash Gupta,
R/o 8164, Sector BXI
Vasant Kunj, New Delhi 110070
Also at
A 156, Defence Colony,
New Delhi - 110024
Also at
C6/55, Ground Floor,
Safdarjung Development Area,
New Delhi 110016
2. Smt. Archana Varshney
R/o Kh73, New Kavi Nagar,
Ghaziabad, U.P
Also at
Working as Reader in English
Vidyawati Mukund Lal Woman ( P.G) Decree College,\
Ghaziabad, U.P
Suit no. 203/08 Page 1/12
3. Shri Chander Shekhar Sharma,
R/o 82/21, Mukesh Nagar,
Circular Road, Shahdara, Delhi
.....Defendants
Date of Institution of Suit : 01.07.2008
Date when reserved for orders : 17.02.2011
Date of Decision : 26.02.2011
JUDGMENT
Vide this judgment I shall decide the suit filed by the plaintiff against the defendants for recovery of Rs. 4,72,142/. The brief fact necessitating in filing the present suit are given as under:
2 That the plaintiff is a body corporate constituted under the Banking Companies ( Acquisition & Transfer of Undertakings) Act, 1970. Defendant no. 1 is a Proprietorship firm of Shri Alok Kumar Goel who is engaged in the business of placement of Indian teachers in foreign countries. He was maintaining a current account no. 5853 in the plaintiff bank since 29.05.2002. He approached the plaintiff bank for sanction of temporary overdraft facility of Rs. 2,50,000/ vide letter dated 17.04.2003. Plaintiff perused the papers and processed the request of the defendant no. 1, and sanctioned a temporary O.D. Limit of Rs. 2.50 lacs. Defendant no. 1 executed loan documents in favour of the bank. The defendant no. 2 & 3 stood guarantor for the said facility provided to the defendant no. 1 and executed a letter of guarantee of form A21 dated 23.04.2003 which was a continuing Suit no. 203/08 Page 2/12 guarantee.
After availing the temporary, O.D facility defendant no. 1 did not liquidate the dues in time and kept on taking time and delay to discharge his liability on one pretext or the other. Vide letter dated 9.06.2003 he assured that the entire dues shall be adjusted by 31.07.2003 but his assurance turned to be a bundle of lie. In order to liquidate the dues defendant deposited a cheque of Rs. 2.50 lacs in his account on 01.08.2005 but same got bounced on the next date of hearing.
The plaintiff issued a legal notice dated 17.04.2002 upon the defendants thereby called upon them to pay the outstanding dues pending in the account of defendant no. 1. But despite service of the notice, defendants neither replied nor complied the same. Another legal notice dated 20.08.2007 was issued upon the defendants but no payment has been made. The defendant no. 1 in order to discharge his liability also issued two cheques bearing no. 442895 dated 30.7.05 for a sum of Rs. 2.50 lacs and cheque bearing no. 442898 dated 10.08.2005 for a sum of Rs. 50,000/ however both the said cheques were dishonoured due to insufficient funds. The defendant no. 1 wrote letters dated 11.11.2005, 30.01.2006, 3.3.2007 and lastly on 07.05.2007 to the plaintiff promising to pay and liquidate the entire dues pending in his account and another loan account of Mega Cash Loan Account . As per the books of account maintained by the Suit no. 203/08 Page 3/12 plaintiff in its ordinary course of business, defendants are liable to pay a total sum of Rs. 4,72,142/ consisting of principal amount, interest and other charges due as on 31.05.2008. All the defendants are jointly and severally liable to pay the said outstanding amount with interest to plaintiff. The defendant no. 1 also execute balance confirmation dated 08.08.2005 acknowledging the due of the bank.
On the basis of the aforesaid averment the present suit has been filed by the plaintiff against the defendants for adjudication. 3 Pursuant to the summons defendant no. 1 & 2 appeared and filed written statement taking preliminary objection. It is stated that suit is barred by limitation as same has been filed beyond three years of limitation. On merit it is stated that once the plaintiff has started proceedings to recover the alleged outstanding dues under Scrutinizing Act and the matter is pending in DRT, the plaintiff cannot start another proceedings to recover the same amount. In the entire written statement, the defendants have not denied the averment made in the plaint specifically.
The ld. counsel for defendant no. 3 appeared till 23.09.2008 and thereafter none appeared on behalf of defendant no. 3, therefore vide order dated 04.03.2009, defendant no. 3 was proceeded exparte.
4 On the basis of the pleadings of the parties, ld. Predecessor of this court vide order dated 09.12.2009 framed the Suit no. 203/08 Page 4/12 following issues for adjudication: Issue no. 1 Whether the suit is barred by limitation? OPD Issue no. 2 Whether the plaintiff is entitled to a decree for Rs.
4,72,142/? OPP
Issue no. 3 Whether the plaintiff is entitled to any interest on the
amount claimed, if so, at what rate and for what
period? OPP
Issue no. 4 Relief
5 In order to prove its case the plaintiff examined Ms Nita
Chadha, Manager UCO Bank as PW1. She reiterated the averment made in the plaint in her examination in chief.
During crossexamination, PW1 deposed that she has been working in this branch since October 2006 as a Manager. The loan was disbursed to the defendant before her tenure. She denied that plaintiff have not sent any legal notice to the defendant prior to filing the present suit. She stated that two loan facilities were granted to the defendant i.e Term loan and CCL facility. However, securities for both the loan were same. She denied that averment of her affidavit are false and fabricated.
Plaintiff also examined Sh. K.N. Hedau as PW2. He brought the original file of SA 44/2006, Smt. Radha Goel and Anrs Vs. UCO Bank and Ors. and OA No. 76/08, UCO Bank Vs Alok Kumar Goel & Anr. During examination in chief He exhibited the Suit no. 203/08 Page 5/12 Demand Promissory Note dated 23.04.2003 as Ex. PW2/1, Letter of continuity dated 23.04.2003 as Ex. PW2/2, Letter of waiver dated 23.04.2003 as Ex. PW2/3, Agreement of Guarantee dated 23.04.2003 executed by defendant no. 2 & 3 as Ex. PW2/4, Notice U/s 13(2) of Sarfaesi Act 2002 as Ex. PW2/5, Letter dated 23.04.2003 as Ex. PW2/6, Original letter dated 8.8.2005 as Ex. PW2/7, Balance confirmation dated 08.08.2005 as Ex. PW2/8, Letter dated 11.11.2005, 30.01.06, 3.3.07 and 7.5.2005 are Ex. PW2/9 ( Colly). He further stated that both the above stated cases have been decided by the DRTIII, New Delhi.
7 In order to answer the claim of the plaintiff, defendant no:
1 examined himself as DW1and reiterated the averment made in the written statement in his examination in chief.
During crossexamination DW1 stated that he is not carrying his residential proof as of now but he can place the same as and when required. He admitted that he was running a proprietorship firm namely, M/s Indian Guru. He further admitted that Ex. PW1/2 bears his signatures at point A. He also admitted that document Ex. PW2/1 to Ex. PW2/3 bears his signatures at point A. He further admitted that he had taken temporary over draft facility from the bank. He also admitted that defendant no. 2 stood guarantor for his loan. He admitted that Ex. PW2/A bears his signatures at point A. He further admitted that he was running his office from A156, Defence Colony, Suit no. 203/08 Page 6/12 New Delhi prior to it was sealed by MCD. He stated that it may be sealed sometime in 2003 or in the beginning of 2004 but he cannot give the exact date when it was sealed. He admitted that his signatures are appearing on Ex. PW2/A at point A. He also admitted that he could not pay the loan amount advanced to him by the bank despite several letter written by the bank. He denied that a sum of Rs. 7 lacs was advanced by the bank under the Mega Cash Loan to him but same was advanced to his sister. He admitted that plaintiff has filed proceedings for recovery of the said amount before DRT. Ex. PW2/10 is the decree passed by the DRT in which he has been arrayed as defendant no. 1. He has not received notice Ex. PW2/5. He submits that as far as he remember last payment was made by him to the bank in the year 2007. He denied that he has not paid any amount to the plaintiff after 17.11.2003. He can produce the receipt of the payment. He admitted that he had written letter Ex. PW2/7 which bears his signatures at point A. He also admitted that Ex. PW2/X bears his signatures at point A. 8 I have heard both the ld. counsel for the parties and perused the pleadings, documents and the evidence led by both the parties on record. My issue wise findings is as under: 9 Issue no. 1 Whether the suit is barred by limitation?OPD Suit no. 203/08 Page 7/12 The onus to prove the issue no. 1 is upon the defendants . The defendant in the written statement has simply stated that the suit is barred by limitation as same has been filed beyond three years of limitation. Besides the above defendant has not specify any fact as to how the suit is barred by limitation.
In the instant case the temporary over draft limit of Rs. 2.50 lacs was sanction to defendant no. 1 on 23.04.2003 for which defendant no. 2 & 3 stood as guarantor and executed a letter of guarantee dated 23.04.2003. After the aforesaid facility the defendant had not maintained the financial discipline despite the legal notice. Therefore, the said account was declared as NPA.
In order to prove its case, plaintiff examined Ms Neeta Chadha as PW1. In para 8 of her examination in chief PW1 stated that Alok Goel also wrote letter dated 8.8.2005 to the plaintiff bank assuring to pay the entire dues of the bank in the account but to no effect. He also executed a Balance Confirmation letter dated 8.8.2005. PW1 has not at all been crossexamined by the defendant to that aspect and no suggestion whatsoever was given to her regarding the fact that defendant no. 1 never wrote any letter confirming the outstanding due to the bank. In the absence of any crossexamination, the testimony of PW1 remains unrebuted and uncontrovered.
Moreover defendant no. 1 himself stated during his crossexamination that he made the last payment to the plaintiff in the Suit no. 203/08 Page 8/12 year 2007. Although he failed to place any cogent material to substantiate his averment. During crossexamination defendant also admitted that Ex. PW2/8 bears his signatures at Point A. Ex. PW2/8 is a balance confirmation letter written by the defendant to the plaintiff. Perusal of that shows that defendant confirmed the correctness of the dues and acknowledge that a sum of Rs. 2,45,961/ is due. The said confirmation letter is dated 8.8.2005. The present suit has been filed on 4.6.2008 i,e within the three years from the date of confirmation of the dues by the defendant.
In view of the above, I am of the considered view that defendant has failed to prove on record that suit is barred by time. They have failed to discharged the onus of issue no. 1, same is accordingly decided against the defendants.
10 Issue no. 2 Whether the plaintiff is entitled to a decree for Rs.4,72,142/? OPP The onus to prove this issue is upon the plaintiff. The plaintiff has taken a plea that on the request of the defendant no:
1temporary over draft limit of Rs. 2.50 lacs was granted on 23.04.2003 . The defendant no. 1 signed Demand Promissory for Rs. 2.50 lacs, letter of continuity of Rs. 2.50 lacs and letter of waiver on FormA47. Defendant no. 2 & 3 stood as guarantor for the said loan facility and they executed letter of guarantee dated 23.04.2003 for a sum of Rs. 2.50 lacs.
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11 As per the plaintiff all the defendants are liable to pay jointly and severely and their liability is coextensive with defendant no. 1. After availing the said facility, defendant no. 1 failed to maintain the financial discipline despite the legal notice which was sent through registered post.
12 On the other hand defendant has not disputed the material particulars of the the plea taken by the plaintiff but only stated that suit is barred by time.
13 In order to prove its case, plaintiff examined PW1 who reiterated the averment mde in the plaint. PW1 has been cross examined by the defendant, however no incriminating material has come out during her crossexamination. Plaintiff also examined PW2 who brought the original documents and exhibited the same. To answer the averment of the plaintiff defendant examined, defendant no. 1. During his crossexamination he admitted that he was the proprietor of M/s Indian Guru.
Perusal of the testimony of both the parties clearly shows that defendant has admitted that he availed the temporary over draft facility from the plaintiff and executed Promissory note Ex. PW2/1 and other relevant documents in favour of the plaintiff. He also agreed that defendant no. 2 stood as a guarantor and she executed the agreement of guarantee Ex. PW2/4. Defendant has also admitted his signatures on letter of confirmation dated 8.8.2005 thereby confirmed Suit no. 203/08 Page 10/12 the balance amount due as on date. The defendant has not refuted the said letter nor he has taken a plea that his signatures were obtained on blank paper. The plaintiff has placed on record the statement of account Ex. PW1/15 which has been prepared during the course of business. As per the statement of account a sum of Rs. 4,72,142/ is due and recoverable from the defendant no. 1. The defendant has not disputed the correctness of the statement of account. Even otherwise same has been prepared during the course of the business and presumption of correctness is attached to it.
Defendant no. 2 has not appeared to lead evidence in order to answer the averment of the plaintiff whereas defendant no. 3 despite service failed to contest the suit, thus deem to have admitted the claim of the plaintiff.
In view of the above facts and circumstances, I am of the considered view that plaintiff has granted the temporary loan facility to the defendant who executed various documents in favour of the plaintiff in order to secure the facility but he failed to pay the amount despite reminders and notice. As per the statement of account a sum of Rs. 4,72,142/ is due and recoverable against defendant no. 1 and defendant no. 2 & 3 who stood as guarantor are jointly and severely liable for the said amount. The plaintiff has successfully discharge the onus of issue no. 2, same is accordingly decided in favour of the plaintiff.
Suit no. 203/08 Page 11/12 14 Issue no. 3 Whether the plaintiff is entitled to any interest on the amount claimed, if so, at what rate and for what period? OPP The onus to prove this issue is upon the plaintiff. The plaintiff has claimed interest @ 17.50% p.a. The defendants after availing the loan facility has failed to pay the amount despite the service of the notice, thus retained the amount of the plaintiff without any reasonable cause, therefore made themselves liable to payr the interest on the said amount. Taking into consideration the facts and circumstances, I am of the considered view that interest of justice would be served if the plaintiff is awarded interest @ 12% p.a from the date of filing of the suit till its actual realization. Issue no. 3 is accordingly decided in favour of the plaintiff. 15 Relief In view of the above, suit filed by the plaintiff against the defendants is decreed with cost. A decree for Rs. 4,72,142/ is passed in favour of the plaintiff and against the defendants alongwith interest @ 12% p.a from the date of filing of the suit till its realization. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
26th February, 2011 Additional District Judge
Delhi
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Suit No.
Present; None
( PITAMBER DUTT)
ADJ; DELHI
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