Delhi District Court
Icici Bank Limited vs Ruhina Gupta on 13 May, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGE
II (CENTRAL):TIS HAZARI COURTS, DELHI
CS No. 198/2014
Unique Case ID No.: 02401C0338732014
ICICI Bank Limited
Having Its Registered Office At:
Landmark, Race Course Circle,
Vadodara390007.
Inter Alia Having Its Branch Office At:
EBlock, Videocon tower,
Jhandewalan Extention,
New Delhi110055
...... Plaintiff
Versus
Ruhina Gupta
D/o Sudhir Kumar Gupta,
(Borrower),
H.No. 350, 2nd Floor,
PocketI, DDA Flat, Sec23,
Dwarka, New Delhi110075
......Defendant
Date of Institution: 22.7.2014
Judgment Reserved on: 13.5.2015
Judgment Pronounced on: 13.5.2015
JUDGMENT (Oral):
(1) This suit has been filed by plaintiff for recovery of Rs. 4,44,974.66p (Rupees Four Lac Forty Four Thousand Nine Hundred ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.1 Seventy Four And Paisa Sixty Six Only) against the defendant Ruhina Gupta.
Case of the plaintiff:
(2) The case of the plaintiff bank is that it is a body incorporated under the provisions of the Companies Act 1956 and a banking company under the provisions of the Banking Regulation Act, 1949 having its registered office at Land Mark, Race Course Circle , Vadadora390007 and having branch EBlock, Videocon Tower, Jhandewalan Extension, New Delhi110055 and Sh. Mohit Grover has been duly authorized to sign and verify the pleadings for and on behalf of the plaintiff bank, institute the suit in the court, prosecute the suit and to do all acts, deeds in general for due prosecution of the suit.
(3) It if further pleaded that the defendant is a borrower who had approached and requested the plaintiff bank for grant of a loan of Rs.
5,45,000/ for purchase of the vehicle namely " TOTOTA ETIOS SEDAN PETROL/ GSP' under the Loan Cum Hypothecation Scheme of the plaintiff bank. It is also pleaded that the defendant had executed the Credit Facility Application along with terms and conditions for said facility, deed of hypothecation and irrevocable power of attorney in favour of the plaintiff bank and also agreed to repay the said loan in 60 Equated Monthly Installments with interest as per the repayment schedule and also secured the loan by way of hypothecating the vehicle purchased by the ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.2 defendant from the financed amount. The case of the plaintiff is that keeping in view the request of the defendant, the plaintiff bank had sanctioned a loan of Rs.5,45,000/ and disbursed an amount of Rs. 5,42,450/ to the dealer M/s Comic Motors I Pvt Ltd, Gurgaon, on 31.01.2012 after deducting the disbursement charges as per the instructions given by them in terms of the documents executed by the defendant. It is also pleaded that the defendant had agreed to repay the said loan with interest @ 11.81% per annum in 60 Equated Monthly Installments of Rs. 12,070/ (Rupees Twelve Thousand Seventy Only) each. According to the plaintiff, the defendant had executed Credit Facility Application, Deed of Hypothecation and Irrevocable Power of Attorney in favour of the plaintiff on 25.01.2012 and the said loan was subject to the terms and conditions of the documents which the defendant executed in favour of the plaintiff bank.
(4) It is further pleaded that the loan account number of the defendant maintained by the plaintiff bank is LADEL00025539238 and the plaintiff bank had disbursed the aforesaid amount to the defendant for the purchase of the vehicle namely "TOTOTA ETIOS SEDAN PETROL/ GSP"
bearing Registration Number UK 07AR 8330 which is hypothecated in favour of the plaintiff bank in terms of the deed of hypothecation dated 25.01.2012 executed by the defendant in favour of the plaintiff and the charge is registered with the RTO, which vehicle is the security against the ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.3 loan amount. According to the plaintiff, the defendant executed various documents in favour of the plaintiff on 25.01.2012 which included the Credit Facility Application along with Terms and Conditions of the Loan according to which the defendant agreed and undertook to repay the loan amount of Rs.5,45,000/ in 60 equated Monthly Installments of Rs. 12,070/ (Rupees Twelve Thousand Seventy Only) each. The defendant had agreed that in case any installment is delayed, the defendant would pay a penal interest @24% per annum as per the agreement entered between the parties on the outstanding Equated Monthly Installments' amount and also that in the event of default in making the payment of installment by the defendant, the plaintiff bank would be entitled to recall the entire loan and take further steps for recovery and enforcement of security. The defendant also executed a Deed of Hypothecation by virtue of which the vehicle financed to be hypothecated in the name of the plaintiff bank and the bank would be entitled to take over the possession of the vehicle in the event of default by the defendant being the rightful owner of the same and an Irrevocable Power of Attorney authorizing the plaintiff to take over the possession of the vehicle and sell the same to appropriate the dues in the event of default by the defendant.
(5) It is further pleaded that pursuant to the receipt of the loan the defendant failed to adhere to the financial discipline of the repayment of the loan either towards principal or interest or charges thereon. It is also pleaded that several Equated Monthly Installments were not paid and ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.4 cheques/ ECS instructions issued by the defendant were dishonoured/ returned back unpaid after which the defendant was served with reminders to pay the amount, which is due towards him as result of the nonpayment of the Equated Monthly Installments and persistent requests were made by the officials of the plaintiff to the defendant to abide by the terms of the agreement entered between the parties. According to the plaintiff, the defendant was also told that the time was the essence of the contract, to which the defendant has been promising from time to time but had failed to honour his commitments and also failed to make the vehicle (which is a security) available for inspection to the officials of the plaintiff in consonance with the terms and conditions of the documents executed by the defendant in favour of the plaintiff bank.
(6) According to the plaintiff, the defendant has paid a sum of Rs.
2,82,420/ (Twenty Three Equated Monthly Installments) and has defaulted in repayment of Rs.67,610/ (Six Monthly Equated Installments) towards equated monthly installments and Rs.39,095/ towards the overdue interest and other charges totalling to Rs.1,06,669/ (Rupees One Lac Six Thousand Six Hundred Sixty Nine Only) towards the installments late payment charges which were due as on 16.06.2014 as per the agreement and in accordance with the terms and conditions of the Loan Documents besides the future installments of Rs.3,74,170/ that since the defendants were not adhering the repayment schedule, the plaintiff bank ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.5 was forced to send a loan recall notice to the defendant by way of sending a notice dated 24.12.2012. According to the plaintiff, they duly notified to the defendant vide the said notice to make the payment of the outstanding amount and also hand over the peaceful possession of the vehicle but despite the issuance of the notice, the defendant neither cared to reply to the notice nor have made any effort to repay the outstanding amount or to hand over the peaceful possession of the vehicle. It is further pleaded that as per the loan documents executed by the defendant in favour of the plaintiff bank, the defendant has no right to use the vehicle in case of non payment of monthly installments and the plaintiff bank is entitled for the possession of the vehicle. It is also pleaded that as per the loan account maintained by the plaintiff bank the defendant is liable to pay a sum of Rs. 4,44,974.66p (Rupees Four Lac Forty Four Thousand Nine Hundred Seventy Four And Paisa Sixty Six Only) towards principal, interest, penal interest and other dues as on 16.06.2014.
(7) According to the plaintiff, the failure on the part of the defendant to make the payment of the dues of the plaintiff and the conduct of the defendant, the defendant has no right to retain the possession of the vehicle and also it gives rise to an apprehension that the defendant in order to frustrate the claim of the plaintiff, might sell, alienate, dispose off, transfer and/ or otherwise encumber the said vehicle and/or the part with components thereof. It is further alleged that the defendant is trying to part with the possession of the vehicle (which is a security with the plaintiff) ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.6 which act of the defendant would cause an irreparable loss/ injury to the plaintiff and would also deprive them of their legal and contractual rights which has been acquired by the documents executed by the defendant in favour of the plaintiff bank. It is pleaded that the documents executed provide for seizure of the vehicle in the event of default in payment of the installments by the defendant apart from conferring other rights in favour of plaintiff. It is further pleaded that as per the terms and conditions of the loan documents voluntarily executed by the defendant, in favour of the plaintiff bank, in case of any default in repayment of the loan amount by the defendant, the defendant has to surrender the vehicle or the plaintiff is entitled for the possession of the said vehicle and to deal with it in any manner to recover its dues on the defendant. According to the plaintiff the vehicle is a marketable movable property whose market value is depreciating and condition is deteriorating day by day and in case if the vehicle in question is not sold when repossessed/ surrendered from defendant it may fetch much lesser amount on sale later on. (8) According to the plaintiff, the the cause of action accrued in favour of the plaintiff and against the defendant on 25.1.2012 when the agreement was entered between the parties and the loan amount was disbursed for the purchase of the vehicle; again when upon the disbursement of the loan amount the said vehicle was delivered to the defendant; again when the installments fell in arrears; again when the demands were made by the officials of the plaintiff verbally, telephonically ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.7 and as well by the personal visits of the officials of the plaintiff; when the defendant requested to not to take any legal action as he is going to make the payments shortly; when the correspondence rested between the plaintiff and the defendant; when the notice date 24.12.2012 was sent to the defendant; again when the defendant as per the Agreement failed to produce the vehicle for inspection and again when the defendant failed to liquidate the outstanding amount and hence the suit. It is pleaded that the loan was disbursed from the office of the plaintiff situated at Videocon Tower, Jhandewalan, New Delhi and the loan is repayable at Videocon Tower, Jhandewalan Branch, New Delhi which is situated under the jurisdiction of Police Station Paharganj and since majority of cause of action has taken place within the territorial jurisdiction of this Court, therefore this court has the territorial jurisdiction to try and entertain the present suit.
(9) Along with the plaint the plaintiff has also filed an application under Order 40 Rule 1 read with Section 151 CPC pursuant to which vide order dated 22.7.2014 the Ld. Predecessor of this Court appointed a Receiver to take the possession of the vehicle make TOYOTA ETIOS SEDAN PETROL/ GSP bearing registration No. UK7AR8330. However, as per the report of the Receiver the vehicle in question is not traceable and hence the vehicle in question is still in the possession of the defendant.
ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.8 Defendant is Exparte:
(10) Pursuant to the filing of the suit, summons were issued to the defendant who was validly served vide publication in newspaper 'Veer Arjun ' on 22.1.2015 despite which the defendant did not put in her appearance. Therefore, vide order dated 23.1.2015 the defendant was proceeded exparte by the Ld. Predecessor of this Court.
Exparte Evidence of the Plaintiff:
(11) In its exparte evidence the plaintiff has examined its Authorized Representative Sh. Mohit Grover as PW1 who in his examination in chief by way of affidavit has corroborated what has been earlier stated in the main plaint. He has placed his reliance on the copy of Power of Attorney which is Ex.PW1/1; Credit Facility Application along with terms and conditions of the loan which is Ex.PW1/2; Deed of Hypothecation which is Ex.PW1/3; Irrevocable Power of Attorney which is Ex.PW1/4; copy of the notice which is is Ex.PW1/5; Postal Receipt which is Ex.PW1/6;
certified copy of statement of account dated 16.06.2014 which is Ex.PW1/7; certified copy of statement of account dated 09.05.2015 which is Ex.PW1/8 and the certificate U/s 65(B) of Indian Evidence Act, 1860 which is Ex.PW1/9.
(12) Since the defendant is exparte, therefore this Court had put certain questions to the witness which were relevant to the facts in issue on ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.9 which the witness informed he has been working in the plaintiff bank since August 2006. According to the witness, he has no involvement in the processing of the loan amount and the Credit Application Form Ex. PW1/2 and other documents as relied upon him was neither filled up by the borrower nor signed by the parties in his presence. He is unable to tell in whose handwriting the above documents were filled up and also the place where they were filled up. He has further deposed that the loan recall notice Ex.PW1/5 is a computer/ system generated document and has admitted that no certificate under Section 65B of Indian Evidence Act has been filed in respect of the loan recall notice and the certificate under Section 65B of Evidence Act which is Ex.PW1/9 has been issued by him is only confined to the statement of account Ex.PW1/8. He has further admitted that he has not taken any formal permission from the Court for placing on record the statement of account dated 9.5.2015 which is Ex.PW1/8. He has also admitted that the payment has not been made by the defendant in his presence and the entries in the statement of account have also not been made by him and has voluntarily explained that it is the Operations Department which is responsible for the same. According to the witness, he has not placed on record the report of postal tracker to confirm the service of loan recall notice upon the defendant. He has admitted that the defendant could not be served with the summons from the court and it was reported that he had left ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.10 the address and had to be served vide publication in Veer Arjun. He has also explained that the statement of account which is placed on record has been retrieved from the centralized system. According to the witness, the main server is installed at Mumbai and the working of the Centralized System is controlled from the place where the Server is installed and they have a direct access to the Server from the Delhi Office. According to him, the statement of account of any customer can be generated from any of the authorized branches of the plaintiff bank. He has however denied the suggestion that the details of the customers can be retrieved by any person having the details of the operating system and by any person having access to the same and has voluntarily explained that only an authorized person can have an access. He has further stated that there is no list of authorized persons on record. He is not aware if any person authorised or unauthorized having the details of the customer as well as the Operating System can access the details of the customer. He has admitted that he has no personal knowledge of the facts of the case and has deposed only on the basis official records. According to PW1, the Post Dated Cheques issued by the defendant were dishonoured at from the bank of the borrower / customer situated in ICICI Bank Branch at Gurgaon and the last dishonour of the cheque was on 15.10.2012. He has further informed the Court that they have not initiated any proceedings under SARFESI Act against the defendant. According to him, the account of the defendant ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.11 has been declared as NPA (Non Performing Asset) in January 2015. OBSERVATIONS & FINDINGS:
(13) I have heard the arguments advanced before me and considered the written memorundum of arguments filed on behalf of the plaintiff. I have also perused the documents on record and considered the evidence before me. At the very Outset I may observe that the plaintiff has not proved the Recall Notice in accordance with law. Only a printout/ scanned copy of the recall notice has been placed on record which is a computer generated record and has not been certified to be correct in accordance with Section 65B of the Evidence Act. The executant and signatory of the Recall Notice has not been examined to prove the same. (14) Secondly the service of this foreclosure notice has also not been proved in accordance with law and only a photocopy of some internal register being maintained by the plaintiff bank has been placed on judicial record by falsely claiming this to be a receipt of service. The perusal of Ex.PW1/6 (which even otherwise is not admissible in evidence being photocopy and not being proved as per law) shows that it is only an entry in some internal register (i.e. LRNBluk Register for Dispatch Mode Reg.
Post AD) of the plaintiff company showing that some communication was perhaps intended to be dispatched to the defendant by the plaintiff bank but whether it was actually dispatched or not has not been established. ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.12 (15) Thirdly the fact that the said communication so reflected in Ex.PW1/6 was related to the recall notice and was actually dispatched by speed post has not been proved. The Speed Post Receipt has not been placed on record and what is placed before the Court is only the photocopy of the entry in the internal register of the plaintiff which has not been proved. It is claimed that the bar code reflected on the photocopy relates to the speed post receipt issued by the postal authorities, which does not convince me because had that been so, the original would have been placed before this Court. It appears that an attempt is being made to mislead the Court by claiming this phtocopy of some receipt showing bar coding to be the dispatch receipt of Speed Post in respect of Recall Notice. Even otherwise, Sh. Mohit Grover (PW1) has admitted that he has not placed on record the report of postal tracker to prove and confirm the service of loan recall notice upon the defendant. The plaintiff has also not called any witness from the postal authorities to prove the service of the recall notice which they could have done nor the Tracker of Department of Post, Government of India has been placed on record to prove the service. No certificate under Section 65B of Evidence Act has been placed on record in respect of the alleged Legal/ Recall Notice Ex.PW1/5. (16) Fouthly all the documents relied upon by the plaintiff i.e. Recall/ Foreclosure Notice, Bar Code Receipts, Statement of Account etc. are all computer generated documents/ electronic record which has not ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.13 been proved as per the provisions of Section 65B of the Indian Evidence Act and as per the law laid down by the Hon'ble Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer & Ors. in Civil Appeal No. 4226/2012 decided on 18.9.2014. Once the service of the notice of Recall by way of which they have communicated to the defendant that the plaintiff Bank has recalled the loan credit facility and thereby asking the defendant to pay the entire outstanding balance together with interest and all the sums payable under the agreement has not been proved, there is no question of there being any cause of action for filing the present suit seeking to recovery of the entire remaining amount. In this background, the entitlement of the plaintiff bank, under the given circumstances, would at the worse be limited to the defaulted amount of installments only but in the present case there is another issue. The only document on the basis of which the plaintiff seeks to charge the defendant of her liability to pay, is the Statement of Account Ex.PW1/8 maintained by the plaintiff bank which has not been proved in accordance with law laid down. I may observe that though the witness Mohit Grover (PW1) has explained that he had issued the certificate under Section 65B of the Evidence Act Ex.PW1/9 in respect of the Statement of Account Ex.PW1/8, but he has admitted that the Statement of Account of any customer can be generated from any of the authorized branches of the plaintiff bank. Therefore, under these circumstances this certificate under Section 65B of Evidence Act is not in ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.14 terms of the requirements under Section 65B of the Indian Evidence Act or the law as specified by the Hon'ble Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer & Ors. (Supra).
(17) Fifthly the provisions of Section 34 of Evidence Act are very clear. It provides that entries in books of account, including those maintained in an electronic form, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. In this regard reference is being made to Ishwar Dass Vs. Sohan Lal reported in AIR 2000 SC 426 and Dharam Chand Joshi Vs. Satya Narayan Bazaz reported in AIR 1993 Gauhati 35. The Books of Accounts and the entries in the Books of Account (in the present case Statement of Account) are only corroborative evidence and they by themselves cannot create any liability and in case of liability the plaintiff is required to support this evidence i.e. Statement of Account by other evidence which in the present case has not been done and except for examining the Authorized Representative Mohit Grover as PW1, who has himself admitted that he is in no way is concerned with collection of installments and maintenance of account.
(18) Sixthly I may observe that the Authorized Representative i.e. Mohit Grover (PW1) has specifically stated that the Credit Application Form Ex.PW1/2 and other documents as relied upon were neither filled up ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.15 by the defendant nor signed in his presence nor can he tell in whose handwriting the above documents were filled up and also the place where they were filled up, raising very serious questions on the assertions made by the plaintiff in the plaint regarding the Cause of Action having arisen at Videocon Tower at Jhandewalan, Delhi which is the sole reason why the suit has been filed within the Territorial Jurisdiction of this Court. I may note that it is apparent from the reading of the plaint and the documents attached along with it that the defendant Ruhina Gupta is a resident of House No. 350, 2nd Floor, PocketI, DDA Flat, Sector23, Dwarka, new Delhi - 110075, which does not fall within the jurisdiction of Courts at Central District. Further, as per the Annexure to Credit Facility Application dated 21.1.2012 shows that an amount of Rs.5,42,450/ has been disrbused directly in the account of the Dealer i.e. Cosmic Motors India Pvt. Ltd. Gurgaon, which again does not fall within the jurisdiction of this Court. Further, Scheudle 1 to the Unattested Deed of Hypothecation itself reflects that the Bank's Branch/ Office address mentioned is ICICI Bank Ltd., Gurgaon. I may observe that only the screening of the application form and documents of the defendant was done at the Videocon Towers, Jhandewalan Extension with which the defendant has nothing to do and which is not an Integral Part or a Substantial Part of the cause of action and is an incidental act having no relation to the Substantial Cause of Action which is actually dishonour of cheques and failure to pay ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.16 the installment amount and remaining dues and even Sh. Mohit Grover (PW1) has clarified that the Post Dated Cheques issued by the defendant were dishonoured at from the Bank of the Borrower/ Customer situated in ICICI Bank Branch at Gurgaon. How then can the Courts at Central District, Delhi have the territorial jurisdiction to try the present suit, is something on which the plaintiff has not been able to satisfy this Court. (19) Seventhly a careful reading of the Statement of Account duly relied upon by the plaintiff which is Ex.PW1/7 which was filed along with the plaint and Ex.PW1/8 which has now been filed at the time of recording of evidence without taking a formal permission from the Court, reveal that there are major discrepancies in the various entries which are neither corresponding or compatible to each other nor justify the demand so raised by the plaintiff. At the time of filing of the suit, the amount (Rs. 4,44,974.66p) which has been reflected in the Statement of Account Ex.PW1/7 is the total amount after the foreclosure notice is different to the amount which is now reflected in the Statement of Account Ex.PW1/8 (Rs.7,71,940/). On the face of it there is a duplication of the due installments i.e. the installments already included in the Statement of Account Ex.PW1/7 are also appear to have been added in the Statement of Account Ex.PW1/8. It is writ large that for the amount of loan taken by the defendant which was to the tune of Rs.5,45,000/ a sum of Rs. 2,82,420/ has already been paid by the defendant at the time of giving the ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.17 foreclosure notice, after which the suit filed by the plaintiff is for recovery of Rs.4,44,974/ out of which Rs.95,350/ was also paid by the defendant after the filing of the suit, showing its entitlement to adjustment thereof. Both the Statement of Accounts do not reflect and explain the outstanding amount being claimed by the plaintiff. There is apparently a duplication of entries. The latest Statement of Account Ex.PW1/8 which was placed on record without taking permission from the Court also reflects that even after filing of the plaint certain payments have been received which the plaintiff has duly adjusted in the account of the defendants which adjustment is not apparently reflected in the later Statement of Account and the witness of the plaintiff i.e. Mohit Grover (PW1) has failed to explain the relevant entries claims that he is not the person who had made the entries.
(20) Eighthly a vague allegation has been made in the plaint that the defendant is in the process of selling the vehicle in question. However, no evidence has come on record which would even primafacie show that the defendant is in the process of disposing off the vehicle in question. Rather on the contrary the affidavit of evidence reflect that even after the filing of the suit the defendant has continued to make the payment of installments to the plaintiff bank though she is not very regular with the said payments. Under these circumstances, I hold that the plaintiff has failed to justify and bring on record the material to prove the existence of cause of action for grant of relief of taking possession of the vehicle in question. ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.18 (21) Lastly the issue regarding increase in the number of Non Performing Assets (NPAs) of the Banks is a matter of serious concern, having a direct bearing on the National Economy and has recently been a subject matter of a hot debate in the Indian Parliament and concerns have also been expressed by the RBI on the mounting number of Non Performing Assets by the day, due to sanctioning of loans by the banks without verification and counter guarantee. In fact the RBI has also carried out Forensic Investigations in many Private Sector Banks (PSB's) to detect the debt to equity norms in order to verify the Integrity and Accuracy in classification of Non Performing Assets with a specific focus on review of loans having an outstanding of Rupees Ten Lacs and below and priority sector loans. The defendant in the present case being exparte, there is an increasing onus upon this Court to exercise caution in order to prevent any legal abuse since the possibility of filing the recovery suits by the banks to evade such investigations by bringing the cases within the category of suit filed cases of willfull defaults in order to write off the Non Performing Assets, cannot be ruled out. The Suit filed cases of willfull default like the present case before this Court are treated as a separate category as per the RBI guidelines. As per the data available in Public Domain relating to the plaintiff bank (ICICI Bank Ltd.) the Gross NPA to Gross Advance Ratio for the years March 2011, March 2012, March 2013 and September 2013 is 2.80, 4:83, 4.03 and 3.78 which, of ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.19 course, is a cause of concern. It is in this background that it is necessary for the Court to ascertain whether the suit filed by the plaintiff bank by resorting to the legal process is genuine or just a mere formality and an eye wash only to resolve a hard loan by putting a willfull defaulter tag on the same by bringing it in the category of court filed cases and later by writing off the Non Performing Assets, which directly affects the National Economy.
(22) Merely because the defendant has not appeared in the Court and was proceeded exparte, does not mean that every word stated by the witnesses of the plaintiff and every document on which it places its reliance is to be taken as a gospel truth. Rather under the given cricumstances the court is obligated to be more vigilant so as to ensure that there is no abuse of process of law and the Public Interest is safe guarded. In the present case, admittedly the account of the defendant has been declared as Non Performing Asset in January 2015 and compelling the plaintiff to issue a notice of foreclosure (which notice and whose service they have no been able to prove) and hence must have been declared a Non Performing Asset in accordance with the Banking Guidelines. Further, RBI's Master circular updated on 1.7.1994 on Loans and Advances, Statutory and other restrictions which provides a framework of the Rules/ Regulations/ Instructions issued to Schedule Commercial Banks on statutory and other restrictions on loans and advances requires taking of ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.20 security/ guarantee and banks are obligated to implement these instructions to adopt adequate safeguards in order to ensure that banking activities undertaken by them run on sound, prudent and profitable lines. Hence, in order to establish that the loan advanced by them was a bonafide transaction, it was necessary for the plaintiff bank to first establish that these Instructions and Guidelines were followed and meticulously adhered to, which the plaintiff bank in the present case has miserably failed to establish. In this background, there is every possibility that the present suit has been filed only to get a stamp of legality on their act of declaring this account of the defendant as Non Performing Asset in order to avoid any audit or other legal objections by the Reserve Bank of India/ Government Agencies by bringing it within the category of court filed cases in order to wirte off the NPAs at a later stage, or else there is no reason why the entire proceedings conducted by the Plaintiff Bank would be so causal and non serious.
(23) This being the background, I hereby hold that the plaintiff has failed to prove its entitlement to recover a sum of Rs.4,44,974.66p from the defendant. The suit of the plaintiff is hereby dismissed. No orders as to costs. Decree Sheet be prepared accordingly.
(24) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 13.5.2015 ADJII(CENTRAL)/ DELHI ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.21 ICICI Bank Vs. Ruhina Gupta CS No. 198/2014 13.5.2015 Present: Sh. Mohit Grover, AR of the plaintiff bank. Defendant is exparte.
Advocates are abstaining from work today on the issue of Pecuniary Jurisdiction.
Proxy counsel for the Bar Association.
Written memorandum of arguments have already been filed on behalf of the plaintiff. Heard oral arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ADJII(Central)/ 13.5.2015
4:00 PM
Present: Sh. Mohit Grover, AR of the plaintiff bank.
Defendant is exparte.
Vide my separate detail order dictated and announced in the open court, suit of the plaintiff is dismissed. No orders as to costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 13.5.2015 ICICI Bank Ltd Vs Ruhina Gupta, CS No.198/14 Page No.22