Delhi District Court
State Bank Of India vs . Rajender Bhagwana on 12 September, 2018
State Bank of India vs. Rajender Bhagwana
CS No. 15408/16
IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 15408/16
CNR No. DLSW010002652016
In the matter of
State Bank of India
A corporation constituted under the State Bank of India Act, 1955
having its Central Office/ Corporate Centre at
State Bank Bhawan,
Madam Cama Road, Mumbai.
Local Head Office at 11, Sansad Marg,
New Delhi110 001 and
Small and Medium Enterprises City Credit Centre (SMECCC)
at 2nd floor, Vardhman Trade Centre,
Nehru Place, New Delhi
through its Deputy Manager / City Case Officer
Sh. S. K. Chitkara. ... Plaintiff
Versus
Sh. Rajender Bhagwana
S/o Sh. Sarjeet Singh Bhagwana
R/o B18, Plot No. 38,
Near Valmiki Mandir,
Chhawla, New Delhi110 071. ... Defendant
Date of Institution of suit : 22.03.2016
Date on which judgment was reserved : 12.09.2018
Date on which judgment was pronounced
:
12.09.2018
SUIT FOR RECOVERY OF Rs. 5,92,809/ (RUPESS FIVE LAKHS
NINETY TWO THOUSAND EIGHT HUNDRED NINE ONLY) ALONG
WITH COST, EXPENSES, PENDENTE LITE AND FUTURE INTEREST
@ 12.95 % P.A. WITH MONTHLY REST TILL REALIZATION
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State Bank of India vs. Rajender Bhagwana
CS No. 15408/16
JUDGMENT
1. Plaintiff State Bank of India, constituted under the State Bank of India Act, 1955 (Act No. XXIII of 1955), has filed suit for recovery through Sh. S. K. Chitkara, Deputy Manager, SBI, SMECCC, 2nd floor, Vardhman Trade Centre, Nehru Place, New Delhi.
2. As averred by plaintiff, defendant Sh. Rajender Bhagwana had approached its Branch at DZOII, New Delhi on 24.12.2013 seeking financial assistance and applied for loan of Rs. 5,30,000/by submitting loan application / biodata form alongwith supporting documents under the vehicle loan scheme for meeting his financial needs.
3. Defendant's proposal and documents submitted alongwith application were considered and the bank agreed to sanction financial facility to defendant who thereafter executed various loan documents on 07.01.2014 by agreeing to repay the loan amount alongwith interest @ 13.40 % p.a. with monthly rests subject to rise and fall under banking guidelines from time to time.
4. A sum of Rs. 5,30,000/ was disbursed as loan by opening Loan Account No. 33566139081 at SBI Branch, Nehru Place, New Delhi and loan documents including Letter of Arrangement and Agreement of LoancumHypothecation dated 07.01.2014 were executed by defendant for repayment of loan amount by way of 84 equated monthly installments of Rs. 9,800/ each.
5. Having availed loan facility, defendant, thereafter, miserably failed to honour his undertaking and committed regular defaults in payment of monthly installments since beginning. He was requested through letters and notices but neglected to improve his loan account despite repeated Page 2 /8 DOD: 12.09.2018 State Bank of India vs. Rajender Bhagwana CS No. 15408/16 demands, notices and personal visits by the field staff and loan account remained sticky and inoperative despite letters dated 20.02.2015 and 08.08.2015.
6. Defendant was contacted and asked to pay the outstanding dues but kept on avoiding his liability on one pretext or the other and loan account was declared NPA on 31.07.2015. Loan facility was eventually recalled on the ground of persistent defaults committed by defendant and legal demand notice dated 20.10.2015 was issued to defendant for recovery of outstanding amount alongwith accrued interest which was not complied.
7. Plaintiff bank, left with no alternative, has thereafter filed suit for recovery of Rs. 5,92,809/ which includes Rs. 5,10,082/ as debit balance as per entries in the loan account maintained by the bank in its normal course of business and Rs. 82,727/ as accrued interest @ 12.95% per annum w.e.f. 01.05.2015 to 15.12.2015.
8. Defendant Sh. Rajender Bhagwana has appeared upon service on summons and filed his written statement for contesting plaintiff's suit alongwith counterclaim seeking Rs. 6,00,000/ as compensation for mental tension, loss of income and expenses incurred in filing written statement alongwith interest @ 18 % per annum.
9. Defendant's application under Order XXXIII Rule 1 CPC for permission to pursue his counterclaim as indigent person and the other application under Order II Rule 3 CPC for impleading New India Insurance Company Ltd. as defendant no. 2 and directing plaintiff to file revised plaint were also filed alongwith written statement and counterclaim.
10. Perusal of record reveals that defendant's application under Order II Rule 3 CPC for impleading New India Insurance Company Ltd. as Page 3 /8 DOD: 12.09.2018 State Bank of India vs. Rajender Bhagwana CS No. 15408/16 necessary party was dismissed on 13.05.2016 whereas statement of defendant Sh. Rajender Bhagwana was recorded on 20.01.2017 in course of inquiry under Order XXXIII Rule 1 CPC. Copies of pass book of Bank of India A/c No. 600210110001062; statement of Loan Account with State Bank of India w.e.f. 29.07.2013 to 25.06.2016 and statement of Savings A/c No. 344602010086116 with Union Bank of India were also filed on record as Ex. C1 (OSR), Ex. C2 (OSR) and Ex. C3 (OSR).
11. Notice of application were issued and served upon Government Pleader / SDM on 27.02.2017 and 25.10.2017 but no reply was received and defendant's application was allowed vide order dated 21.02.2018 on the basis of documents and statement recorded during inquiry by observing that court fee would not be insisted and same could be calculated at final stage in case defendant was found entitled to receive any compensation.
12. Following issues were settled on 21.02.2018 on the basis of pleadings :
i) Whether plaintiff is entitled to decree for a sum of Rs. 5,92,809/ alongwith pendente lite and future interest @ 12.95% p.a. with monthly rests? ....(OPP)
ii) Whether insurance company should be impleaded as necessary/ proper party? .....(OPD)
iii) Whether defendant is entitled to receive compensation on account of mental tension, loss of income and expenses in contesting plaintiff's suit alongwith interest @ 18% p.a. ?
.....(OPD)
iv) Relief.
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13. Matter was listed for plaintiff's evidence but ld. counsel for plaintiff has adverted to application under Order XII Rule 6 CPC filed alongwith replication on 13.05.2016 for requesting to pass judgment and decree on the basis of defendant's admission in his written statement.
14. Defendant's reply opposing plaintiff's application has been filed on 07.09.2016.
15. Advocate Sh. Arvind Gupta for plaintiff and Advocate Sh. Jai Prakash for defendant have addressed their submissions and ld. counsel for defendant has relied upon judgment of Hon'ble Supreme Court of India in case titled "P.S. Ranakrishna Reddy vs. M. K. Bhagyalakshmi" 2007 Lawsuit (SC) 178 .
16. Perusal of written statement reveals that plaintiff's averments in respect of loan application; disbursal of Rs. 5,30,000/ by opening Loan Account No. 33566139081 on 07.01.2014 and execution of various loan documents including Letter of Arrangement and Agreement of Loancum Hypothecation dated 07.01.2014 have not been disputed being matter of record in the common para no. 1 to 7 of reply on merits. Defendant, in addition, has also admitted debit balance of Rs. 5,10,082/ and Rs. 82,727/ as accrued interest as per entries in the loan account by admitting plaintiff's case about outstanding dues in the common para no. 9 to 14 of reply on merits.
17. Defendant, nevertheless, has opposed plaintiff's suit as not maintainable by insisting that it was not filed against proper party (Insurance Company) and disputed his liability by asserting that car (vehicle) was mortgaged with the plaintiff and plaintiff being defacto owner was duty bound to implead New India Insurance Company Ltd. as Page 5 /8 DOD: 12.09.2018 State Bank of India vs. Rajender Bhagwana CS No. 15408/16 necessary party for recovery of loan amount as the car was insured till the date of robbery / theft of car on 10.11.2014.
18. It is apt to note that defendant's application for impleading New India Insurance Company as necessary party, filed under the wrong provision of law, was dismissed vide order dated 13.05.2016 by observing that plaintiff's suit was filed in respect of loan adduced to defendant and there was no privity of contract between plaintiff and the Insurance Company. Moreover, no court of justice would countenance such false and frivolous plea of defence as loan facility was granted to defendant on the basis of agreement entered with the bank and theft of vehicle does not absolve defendant of his liability to repay the outstanding amount along with interest.
19. Order XII Rule 6 CPC confers almost sweeping powers on the Court to render speedy judgment to save the parties from going through the rigmorale of a protracted trial. The only prerequisite for this is that there must be admissions of facts arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admission also as held by Hon'ble Delhi High Court in cases titled "Delhi Jal Board vs. Surender P. Malik"
2003 III AD Delhi 419; "Usha Rani Jain & Ors. vs. Nirulas Corner House Pvt. Ltd." decided on 08.08.2005; "Pradeep Khanna vs. Renu Khetrapal" RFA No. 638/2014 decided on 10.04.2015 and in a catena of judgments of Hon'ble Court.
20. Division Bench of Hon'ble High Court of Delhi in case titled Page 6 /8 DOD: 12.09.2018 State Bank of India vs. Rajender Bhagwana CS No. 15408/16 "P.P.A Impex Pvt. Ltd. v. Mangal Sain Mittal" 166 (2010) Delhi Law Times 84 (DB) has observed : "The courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial."
21. Similar observation in respect of sham defences was recorded by Division Bench of Hon'ble High Court of Delhi in another case titled "Om Wati v. Panchi Devi" 190 (2012) Delhi Law Times 720 (DB) : "With respect of the defence taken, we must hold the same to be a sham and of a kind which no Court of justice or equity would countenance. If these kinds of defence are to be permitted to be set up, it would create havoc in the society."
22. Observations of Division Bench of Hon'ble High Court of Delhi in aforesaid cases were recorded in the context of judgment and decree passed in suit for ejectment / possession asserting landlordtenant relationship which observation in respect of sham and moonshine defences is applicable to the facts of the present case as defendant, having availed loan facility, is bound to return the loan amount alongwith accrued interest and cannot avoid his liability on the ground of theft of vehicle and rejection of his claim by the Insurance Company.
23. Loan Application / BioData Form submitted alongwith photocopy of Pan card and VoterID card of defendant; Letter of Arrangement and Agreement of LoancumHypothecation dated Page 7 /8 DOD: 12.09.2018 State Bank of India vs. Rajender Bhagwana CS No. 15408/16 07.01.2014 have been annexed as Annexure 2 to 4 whereas statement of account showing debit entry of Rs. 5,10,082/ as on 31.12.2015; Certificate of accrued interest amounting to Rs. 82,727/ w.e.f. 01.05.2015 to 15.12.2015 @ 12.95% per annum and Certificate Using Bank Master and One Banking System as per Section 65B of Indian Evidence Act issued by AR/ Deputy Manager, SBI SMCCC, Nehru Place, New Delhi have been filed as Annexures 9 to 11.
24. Since plaintiff's case about outstanding dues in the loan account which was declared NPA on 31.07.2015 has been admitted by defendant so application under Order XII Rule 6 CPC is allowed as plaintiff bank is entitled to recover outstanding amount of Rs. 5,10,082/ alongwith accrued interest of Rs. 82,727/. Plaintiff, in addition, is also entitled to receive pendente lite and future interest upon agreed rate of interest.
25. Plaintiff's suit is accordingly decreed for a sum of Rs. 5,92,809/ alongwith pendente lite and future interest @ 12.95% per annum with monthly rests together with the cost of suit.
26. The counterclaim seeking Rs. 6,00,000/ as compensation for mental tension, loss of income and expenses incurred in filing written statement being misconceived is rejected under Order VII Rule 11 (d) CPC for want of cause of action as defendant being defaulter cannot seek compensation from the bank.
27. Decree sheet be prepared accordingly.
28. File be consigned to Record Room.
Digitally signed by TARUN TARUN YOGESH
YOGESH Date: 2018.09.13
15:38:53 +0530
Announced in the open Court (Tarun Yogesh)
On 12.09.2018 ADJ03/South West
Dwarka /New Delhi
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