Delhi District Court
State Bank Of India vs Kamal Kumar And Anr on 28 September, 2024
IN THE COURT OF SHRI MUKESH KUMAR GUPTA
DISTRICT JUDGE (COMMERCIAL)-07, DISTRICT CENTRAL
TIS HAZARI COURTS, DELHI
Old Case:(out of 20 oldest cases)
CS (COMM.) 2913/2019
CNR No. DLCT010166212019
DLCT010166212019
State Bank of India
Stressed Assets Recovery Centre(SARC),
RACPC, First Floor, 11, Sansad Marg,
New Delhi-110001
........Plaintiff
Versus
1. Mr. Kamal Kumar
S/o Mr. Ramesh Chand
R/o C-38, Vishwas Park, Gali no.8,
Rajapuri, Uttam Nagar, New Delhi-110059.
2. Mr. Sumit Kumar
S/o. Mr. Prem,
R/o.16/558, Amrit Kaur Puri,
Mata Rameshwari Nehru Nagar, Karol Bagh,
New Delhi-110005.
...... Defendants
SUIT FOR RECOVERY OF RS. 5,88,706/-
Date of institution of suit : 12.12.2019
First date before the court : 02.05.2024
Date of hearing final argument : 23.09.2024
Date of Judgment : 28.09.2024
Appearance (s) : Mr. S.S. Tripathi, Ld. Counsel for the plaintiff.
: None for defendants (exparte).
CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 1/12
Digitally signed
MUKESH by MUKESH
KUMAR GUPTA
KUMAR Date:
GUPTA 2024.09.28
16:54:27 +0530
JUDGMENT (Exparte)
1. By way of present judgment (exparte) I shall conscientiously adjudicate upon the suit of Plaintiff-Bank for recovery of Rs.5,88,706/- alongwith interest pendentelite and future thereon @ 9.50% per annum from the date of filing of the suit till its realization. The plaintiff has also prayed for costs of the suit.
2. The concise facts as averred in the plaint are that the plaintiff is a body corporate constituted under the State Bank of India Act, 1955, (Act No.XXIII of 1995) having its Central Office at Madam Cama Road, Nariman Point, Mumbai, having one of its Local Head Office at New Delhi and various branch offices throughout India and a Centralized Recovery Centre called RACPC, situated at 11, Sansad Marg, New Delhi-110001. The present case relates to the Shakti Nagar branch of the plaintiff-Bank which is represented by Mr. Rajeev Jain, Deputy Manager (SARC), posted at Retail Assets Central Processing Centre (RACPC) Sansad Marg, New Delhi-110001 who is empowered to sign the plaint, institute, defend and prosecute the suit and/or any other legal proceedings on behalf of the plaintiff-Bank and to do all such acts, deeds and things which are incidental thereto, as per General Regulations 76 and 77 of the State Bank of India in exercise of powers conferred upon it under Section 50(3) of State Bank of India Act, 1955 with prior approval of the Government of India read with notification published in the Gazette of India including one dated 27.03.1987, which is published on 02.05.1987 and notification dated 31.08.2005 published in the gazette of India on 29.10.2005. It has been averred that SBI, Retail Assets Central CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 2/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:54:32 +0530 Processing Centre (RACPC) has been esthablished by the plaintiff bank to deal with the loan accounts of linked Branches of plaintiff bank situated within Delhi/New Delhi. Therefore, the recovery of the default amounts due against the borrowers of linked Branches of Delhi is also done at RACPC, First Floor, 11, Sansad Marg, New Delhi-110001. The plaintiff has, however, later substituted its Authorized Representative, as prayed and allowed vide orders of Ld predecessor of the court dated 22.12.2023. Accordingly, Mr. Anil Kumar Arora, Deputy Manager was substituted as Authorized Representative of the plaintiff-Bank.
3. It is further averred in the plaint that the defendants approached the plaintiff bank at its Shakti Nagar Branch for availing a Vehicle Loan(Term Loan) for purchasing Ford Eco Sport bearing registration no.DL-8CAM-6354 and applied for a loan of Rs.7,00,000/- vide Loan Application dated 19.10.2015. Upon furnishing relevant particulars by filing relevant documents and considering the representation of the defendants that the defendants no.1 and 2 are engaged in their respective business under the name and style of M/s. Kamal Timber Store and M/s.
Akash Traders respectively, the plaintiff bank opened a vehicle loan account of the defendants vide account no.35298226360 and upon furnishing of necessary documents by the defendants, the plaintiff bank sanctioned a vehicle loan of Rs.7,00,000/- on 20.10.2015 to the defendants through car dealer Ford Astro. The defendants agreed to repay the said loan in 84 equated monthly installments of Rs.11,567/- each as per the repayment schedule. The vehicle in question was financed and hypothecated in favour of the plaintiff as a security towards the loan advanced by the plaintiff. Defendants executed the documents i.e loan CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 3/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:54:36 +0530 cum hypothecation agreement for term loan dated 20.10.2015, arrangement letter dated 20.10.2015 and vehicle delivery letter dated 20.10.2015 in favour of the plaintiff bank. Defendant no. 2 Mr. Sumit Kumar stood as guarantor of the defendant no. 1 Kamal Kumar as per the letter of guarantee which forms the part of Application Form dated 20.10.2015.
4. Defendants pursuant to the sanction of the aforesaid loan amount, failed to adhere to the financial discipline of the repayment and repayments became irregular. The defendant lastly paid an amount of Rs.30,000/- to the plaintiff bank on 06.12.2018 and the account of the defendant was declared as a non-performing asset (NPA) on 19.06.2018.
5. Repeated requests, reminders and notices were sent by and on behalf of the plaintiff-Bank from time to time, requesting and advising the defendants to clear outstanding loan amount, but the defendant completely failed and neglected to pay the same. The plaintiff-Bank then recalled the Loan Facility available to the defendant by way of sending a common and comprehensive Demand Legal Notice dated 18.03.2019 demanding from them to pay the whole outstanding amount but to no avail. Hence, the plaintiff-Bank has filed the present suit for recovery of outstanding amount against defendants.
6. Summons for Settlement of Issues were issued against the defendants. The defendant no. 2 got served with the summons on 24.05.2022. However, the defendant no. 1 could not be served by way of ordinary process. Therefore, he was ordered to be served by way of CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 4/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.09.28 GUPTA 16:54:40 +0530 substituted services of publication vide orders of Ld. Predecessor dated 25.08.2022. The publication was carried out in the newspaper 'Nav Bharat Times' dated 04.03.2023.The defendants neither appeared nor filed Written Statement. The right of defendant no.1 to file the Written Statement was forfeited vide order dated 06.09.2023 and the right of defendant no. 2 to file the same was forfeited vide order datd 25.08.2022. Both the defendants were proceeded with exparte vide order dated 02.05.2024 and 25.08.2022 respectively.
7. Plaintiff in support of its case got examined its Authorized Representative namely, Mr. Anil Kumar Arora, whose deposition has been tendered as PW1, and his examination by way of affidavit got exhibited on record as Ex.PW1/A. The witness has reiterated the contents of the plaint 'On Oath' and has deposed that he is authorised to depose before the Court as per General Regulations 76 and 77 of the State Bank of India in exercise of powers conferred upon it under Section 50(3) of State Bank of India Act, 1955 with prior approval of the Government of India read with notification published in the Gazette of India dated 27.03.1987, by which he was duly authorized, empowered and competent to sign and verify the pleadings for and on behalf of the plaintiff company, to institute the suit & prosecute the suit and to do all acts on behalf of the plaintiff bank. The gazette notifications dated 27.03.1987 along with memo dated 25.04.2008 are got exhibited as Ex.PW1/1(colly).
8. PW1 has further testified that defendants availed the Loan Facility from the Plaintiff-Bank for which they approached the plaintiff-Bank for CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 5/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.09.28 GUPTA 16:54:45 grant of vehicle loan(term loan) in their favour for purchasing a vehicle "Eco Sport Ford" bearing registration no.DL-8C-AM-6354. The plaintiff bank after due verification and details, granted the loan facility to the defendants. Plaintiff bank sanctioned a vehicle loan of Rs.7,00,000/- and disbursed the same on 20.10.2015 to the defendants through its Car Dealer Ford Astro. Plaintiff bank has duly proved the loan documents which are Loan Application dated 20.10.2015, Loan cum Hypothecation Agreement dated 20.10.2015, Arrangement Letter dated 20.10.2015 as Ex.PW1/2 to Ex.PW1/4. Photocopies of payment receipt dated 22.10.2015 as Mark-A(colly). Plaintiff bank has also proved the documents of the defendants i.e Pan Card, Election-I Card and Aadhar Card as Mark B(colly) as their proof of identity. The vehicle delivery letter which confirmed the delivery of the hypothecated vehicle to the defendant got exhibited on record as Ex.PW1/5. Copy of RC of the vehicle bearing registration no.DL-8CAM-6354 is marked as Mark C. Plaintiff bank issued various letters dated 02.11.2017, 21.12.2017 and 02.02.2018 and also made follow ups with request to regularize the account, but of no avail. Plaintiff bank has got exhibited said letters as Ex.PW1/6(colly). As such, the defendants failed to comply with the terms and conditions of the aforesaid Loan Agreement and failed to pay the outstanding amount upon which the plaintiff-bank issued a Recalled/demand notice dated 18.03.2019 tendered as Ex.PW1/7. The witness has tendered the postal receipt as Mark 'Y'. The witness has further deposed that as per the accounts maintained by the plaintiff-bank vide Statement of Account dated 08.03.2019 (Ex. PW1/9), the defendant is liable to pay a sum of Rs.5,56,706/-. The plaintiff Bank has also filed the account statement with correct interest application claiming a sum of CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 6/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:54:50 +0530 Rs. 62,441.23ps towards Un-applied interest at applicable rates w.e.f 01.07.2018 uptill 15.09.2019 excluding credits of Rs.30,000/- after the date when the Account of the defendants were declared Non-Performing Assets (NPA) though neither the same has been exhibited nor contains signature of any competent person of the plaintiff Bank or even any stamps or seal. As the defendant failed to make the payment despite repeated calls and legal notice, therefore, the present Suit for Recovery of total outstanding amount of Rs.5,88,706/-, has been filed on behalf of plaintiff. The Statement of Account dated 08.03.2019 alongwith Certificate u/s. 2-A(b) and 2A(c) of Bankers Book of Evidence Act,1891 read with section 65-B of Indian Evidence Act have been duly proved as Ex.PW1/10 (colly.). The claim of the suit is prayed to be decreed in favour of the plaintiff.
9. The plaintiff bank did not examine any other witness and vide statement dated 02.05.2024, the plaintiff's evidence was closed.
10. Submissions of the Ld. Counsel for the plaintiff have been heard and the entire record including the pleadings, documents and evidence on record has been appreciated. The defendants did not appear before the court. No written statement has been filed. Defendants were proceeded with exparte vide order dated 02.05.2024 and 25.08.2022 respectively.
11. At the outset, the court shall take up the issue of limitation which is a legal issue, which the court is required to determine for the purpose of deciding the entitlement of plaintiff to the relief claimed. As per Section 3 of the Limitation Act, 1963, any suit, application or appeal has CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 7/12 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.09.28
16:54:55
+0530
to be filed within the period of limitation as prescribed under the schedule annexed to the Limitation Act and subject to provisions contained in Section 4 to 24. This has to be done irrespective of the fact whether limitation has been set up as a defence or not. It is a settled proposition of law that law of limitation is a law of repose, peace and justice which bars the remedy after the lapse of particular period by way of public policy and expediency. Reliance is placed on AIR 1991 Kerala 83 Craft Centre vs. Koncherry Coir Factories. It may be seen that the present suit is for recovery of amount outstanding against the defendant in respect of vehicle loan extended to the defendants pursuant to loan Application form Ex.PW-1/2. The defendant initially paid certain EMI's and part payment, thereof for a certain period. The default started after the last payment of Rs. 30,000/- was made by the defendants in cash on 06.12.2018 and the account of the defendants was declared as NPA on 10.06.2018. As per article 19 of the Limitation Act, a fresh period of limitation commences once payment is made on account of debt due and the payment so made by the defendant but by way of cheque towards part of the total outstanding. Once the payment is made towards the part payment of total outstanding due alongwith the acknowledgment of such payment, Section 19 of the Limitation Act, 1963 comes into play whereby a fresh period of limitation starts on payment having been made and acknowledged in writing and under the signature viz by a cheque towards the part of outstanding dues. Reliance are placed on RFA 144/2004 M/s. Narayangarh Sugar Mills Ltd. vs. Krishna Malhotra, decided by Hon'ble High Court of Delhi on 12.03.2012 and CS(OS)No.1177/2003 Ms. Veena Jain vs. Sunil Sood, decided by Hon'ble High Court of Delhi on 23.07.2012. In this case, the defendant CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 8/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:54:59 +0530 has made payment of Rs.30,000/- in cash lastly on 06.12.2018 but the said payment can not be considered for reckoning of limitation for want of acknowledgment. Considering the date when the account of the defendants was categorized as NPA on 10.06.2018 to be the date of commencement of period of limitation, the present suit having been filed on 12.12.2019 is well within the period of limitation as per law.
12. The outstanding amount as shown in the Statement of Account dated 08.03.2019 {Ex. PW/9 (colly.)} shows an outstanding balance of Rs.5,56,264.75ps. The plaintiff bank further relied upon the account statement with correct interest application showing a further outstanding of Rs. 62,441.23ps towards Un-applied interest at applicable rates w.e.f 01.07.2018 uptill 15.09.2019. However, the plaintiff bank has given due credit of Rs. 30,000/- to the defendants which they have deposited after the account being declared as NPA (Non-Performing Assets). The plaintiff bank as such is claiming a sum of Rs. 5,88,706/- rounded of (Rs. 5,56,264.75ps + Rs. 62,441.23ps minus Rs. 30,000/-). Therefore, as per the case of the plaintiff, the defendants have failed to pay the aforesaid amount of Rs. 5,88,706/- which as per the Statement of Account Ex.PW1/9 (colly) is due and pending against the defendants.
13. The onus to prove the averments and claim of the plaintiff rests entirely upon the plaintiff who has to discharge the burden of proof to establish its case, as per law. In civil litigation, it is sufficient for the plaintiff to discharge the burden laid upon it successfully, if the plaintiff is able to prove its case on the yardstick of preponderance of probabilities. The Hon'ble Apex Court in Adiveppa V. Bhimappa CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 9/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:55:03 +0530 (2017) 9 SCC 586 was pleased to uphold that:
"It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleadings and adequate evidence (oral and documentary) in support thereof."
Thus, the onus to prove its case and that the burden to prove the case as per law entirely lies upon the plaintiff, by way of documentary and oral evidence.
14. The present suit has been filed on behalf of plaintiff bank, on the basis of vehicle loan granted by the plaintiff in favour of the defendants, in regular course of banking business. In such cases, documentary evidence is of paramount importance as there is continuity of maintenance of account maintained in the ordinary course of its business. Hence, it is a matter of settled practice for public financial institutions to maintain regular and proper accounts against each and every customer account. Accordingly, the court has meticulously scrutinized the evidence, document and statement of account tendered through the sole testimony of PW1.
15. Before proceeding further, the court has to see as to whether the plaintiff bank justifiably raised the outstanding against the defendants. It may be seen that upon appreciation of documentary evidence, plaintiff placed reliance on Statement of Account vide Ex.PW1/9 (colly.). As per the said Statement of Account, proved on record as Ex.PW1/9 (colly.), the outstanding amount as shown in the Statement of Account dated 08.03.2019 {Ex. PW/9 (colly.)} shows an outstanding balance of CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 10/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
Rs.5,56,264.75ps. The account statement with correct interest application showing a further outstanding of Rs. 62,441.23ps towards Un-applied interest at applicable rates w.e.f 01.07.2018 uptill 15.09.2019 has also been relied upon by the plaintiff bank. The plaintiff bank has given due credit of Rs. 30,000/- to the defendants which they have deposited after the account being declared as NPA (Non-Performing Assets). Therefore, the plaintiff bank has filed the present suit for recovery of Rs. 5,88,706/- (Rs. 5,56,264.75ps + Rs. 62,441.23ps - Rs. 30,000/-). The plaintiff bank has claimed a sum of Rs. 62,441.23ps on the basis of one document called account statement with correct interest application, but neither the same has been exhibited nor contains signature of any competitive person of the plaintiff Bank or even not appended with any stamps or seal, as such the same can not be read in evidence, the same as such do not form part of the Statement of Account maintained by the bank in the ordinary course of its banking transaction nor the same is supported by the requisite Certificate under Section 65-B of the Evidence Act or Section 2 of the Banker's Book of Evidence Act.
16. Accordingly, the defendant is indebted with an outstanding balance of Rs.5,26,264/- (rounded off) (Rs. 5,88,706/- minus Rs. 62,441.23). The testimony of PW1 remained unchallenged and unrebutted, as such there is no reason for the court to disbelieve the same except the fact that the amount as discussed above is required to be reduced. The plaintiff bank has been able to prove its case to the extent of preponderance of probabilities.
17. In view of the above, the plaintiff bank is accordingly, entitled to a CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 11/12 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.28 16:55:13 +0530 decree for a sum of Rs. 5,26,264/- against the defendants. The Plaintiff's Bank shall also be entitled to interest @ 6% per annum on the decreetal amount pendentelite and future from the date of filing of the suit till the date of its realization. Reliance placed on Pt. Munshi Ram @ Associates (P) Ltd. V. DDA, 2010 SCC Online Delhi 2444 and Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181.
18. In the specific facts and circumstances of the case, plaintiff bank shall also be entitled to costs of the suit.
19. The suit of the plaintiff is decreed accordingly with interests and cost.
20. Decree sheet be drawn accordingly.
21. File be consigned to record room after due completion.
Pronounced in Open Court Digitally signed
by MUKESH
today on this 28th September, 2024 MUKESH KUMAR
GUPTA
KUMAR Date:
GUPTA 2024.09.28
16:55:20
+0530
(MUKESH KUMAR GUPTA)
District Judge (Commercial Court)-07,
District Central, Tis Hazari Courts, Delhi 'rk' CS (COMM)-2913/19 State Bank of India Vs. Kamal Kumar & Anr. 12/12