Delhi District Court
Bank Of India vs . Sandoo Enterprises on 22 February, 2011
Suit No. 171/2010
Bank of India Vs. Sandoo Enterprises
IN THE COURT OF SHRI S.C. MALIK: ADJ05 (CENTRAL) : DELHI
Suit No. 171/2010
IN THE MATTER OF
BANK OF INDIA,
A Body Corporate Constituted and functioning under the Banking Companies
(Acquisition & Transfer of Undertakings), ActV of 1970, having its head office at
Star house bandra Kurla Complex, Andheri East, Mumbai, and one of its
branches at Ansari Road, Darya Ganj, New Delhi.
... Plaintiff
VERSUS
1. M/s Sandoo Enterprises,
168, Katra Gokul Shah,
Matia Mahal,
New Delhi - 110002
Through its proprietor Mr. Jahoor Ahmed
2. Mr. Jahoor Ahmed,
Sole Proprietor
M/s Sandoo Enterprises,
168, Katra Gokul Shah,
Matia Mahal,
New Delhi110002. ... Defendants
Suit For Recovery Of Rs. 4,29,558/
(Rupees Four Lac Twenty Nine Thousand Five Hundred and Fifty Eight
Only)
Plaint presented on 21072010
Arguments heard on 14022011
Judgement delivered on 22022011
JUDGEMENT
The Plaintiff, a nationalized bank, has instituted the present ordinary suit for recovery of money against the defendants through its Senior Manager and Principal Officer Sh. Arvind Sharma who is also well conversant with the facts of this case. He is competent to do all the needful in this respect by virtue of Power of Attorney executed by the plaintiff bank in his favour. Page 1 of 7 S.C. Malik, ADJ05 (Central), Delhi
22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises
2. As per averments made in the plaint defendant No. 2 being the sole proprietor of defendant No. 1 had been maintaining Current Account No. 603220110000295 with the plaintiff bank at its branch office 3 Ansari Road, Darya Ganj, New Delhi in the name of defendant No. 1, and during the course of operation of the said current account, upon the request of defendant No. 2 proprietor of defendant No. 1, the plaintiff bank granted in favour of defendant No. 1 the temporary overdraft facility to the tune of Rs. 6,00,000/ (Rupees Six Lacs only) by clearing self cheque No. 000030 dated 31.03.2009 for Rs. 6,00,000/ (Rupees Six lacs only) presented by the defendant No. 2 for its clearance. While availing the said temporary overdraft facility and instructing the plaintiff bank to clear the said cheque, defendant No. 2 sole proprietor of defendant No. 1categorically assured the plaintiff to pay the entire amount equivalent to the said cheque, together with interest accrued thereupon at the prevailing rate, within a short period. Inspite of repeated requests and demands being made by the plaintiff bank from time to time, the defendants miserably failed and neglected to clear the outstanding dues.
3. The plaintiff bank got issued a legal notice dated 04.06.2010, through their counsel to the defendants thereby calling upon them to clear the entire outstanding dues, but inspite of service of the legal notice, the defendants have failed to comply with the same. In terms of the Reserve Bank of India guidelines and as per banking practice, the defendants are liable to pay interest on the overdue amount @ 16.25% per annum with monthly rests, for contumacious withholding of the amount legally due and payable by them.
4. As per the books of accounts regularly maintained by the plaintiff bank in the ordinary course of banking business, a sum of Rs. 4,29,558/ inclusive of interest calculated @ 16.25% per annum with monthly rests, upto 29.06.2009, is due and payable by the defendants to the plaintiff, as such the plaintiff is entitled to claim and the defendants are liable to pay the aforesaid sum of Rs. 4,29,558/ together with pendentelite and future interest @ 16.25% per Page 2 of 7 S.C. Malik, ADJ05 (Central), Delhi 22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises annum with monthly rests from the date of institution o the suit til realization. The statement of account duly certified under Bankers' Book Evidence Act is annexed which has been subsequently exhibited as Ex.PW1/8.
5. The plaintiff bank under the compelling circumstances has instituted the present suit with a prayer to decree the same for the suit amount i.e. Rs. 4,29,558/ along with pendentelite and future interest, with monthly rests, along with the costs of the suit.
6. The defendants have contested the present suit by placing their written statement on record. They have contended that the present suit is without any cause of action, this court does not have jurisdiction to entertain, try and decide the present suit and that the temporary overdraft facility was not extended to the defendants at the request of the defendants.
7. The filing of written statement was followed by replication of the plaintiff wherein the contrary averments made in the written statement have been denied by the plaintiff and the averments made in the plaint have been reiterated.
8. On hearing Ld. counsel for the parties and the pleadings on record on 21.10.2010, the following issues were framed :
(i) Whether the suit of the plaintiff is without any cause of action ?..................................... OPD
(ii) Whether this Court does not have the jurisdiction to entertain, try and decide the present suit ? .....OPD
(iii) Whether the plaintiff granted temporary overdraft facility of Rs.6,00,000/ in favour of defendant No. 1, sole proprietorship concern of defendant No. 2 at the request of defendants ?..... OPD
(iv) Whether the plaintiff bank is entitled to a decree for the suit amount Page 3 of 7 S.C. Malik, ADJ05 (Central), Delhi 22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises of Rs.4,29,558/ ? ... OPD
(v) Whether the plaintiff bank is entitled to pendentelite and future interest as claimed ?
(vi) Relief.
9. In support of their case the plaintiff bank has in all examined two witnesses namely, Sh. V.S. Mittal, Sr. Manager (Credit), Authorized Officer as PW1 and Sh. Ramesh Kukreja, Sr. Manager as PW2. Ld. counsel for the plaintiff thereafter closed the plaintiff's evidence. On the other hand, despite opportunities given the defendants failed to examine any of their witness and consequently vide orders dated 22.01.2011 the defendant's evidence was closed.
10. Arguments advanced by Sh. Amit Gupta, Advocate for the plaintiff accompanied by Sh. S.K. Srivastava, Chief Manager and Sh. M.S. Khan, Advocate for the defendants have been heard.
In the course of his submissions Ld. counsel for the plaintiff has argued that since the plaintiff bank has proved its case by examining their two witnesses and by placing and proving on record all relevant documents, the suit of the plaintiff may be decreed, especially when the defendants have failed to lead any evidence to the contrary.
11. My findings on various issues framed in this suit are as follows : Issue Nos. (i), (ii) and (iii)
(i) Whether the suit of the plaintiff is without any cause of action ?..................................... OPD
(ii) Whether this Court does not have the jurisdiction to entertain, try Page 4 of 7 S.C. Malik, ADJ05 (Central), Delhi 22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises and decide the present suit ? .....OPD
(iii) Whether the plaintiff granted temporary overdraft facility of Rs.6,00,000/ in favour of defendant No. 1, sole proprietorship concern of defendant No. 2 at the request of defendants ?..... OPD As the burden of proving all these issues was on the defendants, they are taken up together for recording findings thereon. Since the defendants have failed to lead any evidence of any kind to prove these issues, I record my findings on all these three issues in favour of the plaintiff bank and against the defendants.
12. Issue Nos. (iv) & (v)
(iv) Whether the plaintiff bank is entitled to a decree for the suit amount of Rs.4,29,558/ ? ... OPD
(v) Whether the plaintiff bank is entitled to pendentelite and future interest as claimed ?
Since the burden of proving both these issues was on the plaintiff bank and they are corelated, they are taken up together for recording findings thereon.
PW1 Sh. V.S. Mittal, Sr. Manager (Credit), Authorized Officer of the plaintiff Bank of India has tendered his affidavit Ex.PW1/A which bears his signatures on each page of the same and also at point A & B on last page of the same as his examination in chief wherein he has fully supported the case of the plaintiff bank and has testified fully in conformity with the averments made in the plaint which have already been mentioned in detail hereinabove.
He has relied upon the documents Ex.PW1/1 to Ex.PW1/11. This witness has duly proved the Power of Attorney executed by the plaintiff bank in favour of Sh. Arvind Sharma as Ex.PW1/1 for institution of the present suit, Account Opening Form as Ex.PW1/2, Original cheque dated 31.03.2009 for a Page 5 of 7 S.C. Malik, ADJ05 (Central), Delhi 22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises sum of Rs.6,00,000/ as Ex.PW1/3, Legal Demand Notice as Ex.PW1/4, Registered postal receipts for issuance of the aforesaid legal notice as Ex.PW1/5 & Ex.PW1/6 respectively and UPC slip as Ex.PW1/7, Bank Statements of Account of the defendants as Ex.PW1/8, Proprietorship letter as Ex.PW1/9, Certificate regarding nonavailment of advance from any other bank as Ex.PW1/10 and Declaration of the defendants in respect of not having any Current Account with any other bank as Ex.PW1/11.
During his crossexamination he has testified that he has no personal knowledge regarding the present case except what he has learnt from the record of the plaintiff bank. During the crossexamination of this witness nothing such could be brought on record which carries the effect of falsifying the present case of the plaintiff which is a nationalized bank.
PW 2 Sh. Ramesh Kukreja, Sr. Manager, Service Branch of the plaintiff bank has tendered his two affidavits as Ex.PW2/B and Ex.PW2/A respectively which bear his signatures on each page of the same and also at point A & B on last page of the same as his examination in chief wherein he has also supported the case of the plaintiff bank in conformity with the averments made in the plaint. He has relied upon Statement of Account already exhibited as Ex.PW1/8A and proved on record another copy of the same as Ex.PW2/1 which has been certified to be true copy as per Bankers' Book Evidence Act at point 'A' which also bears his signatures at point 'B'.
During his crossexamination he has denied the suggestion that the account of the defendants was a cash credit account. During the cross examination of this witness also nothing such could be brought on record which has the effect of falsifying the present case of the plaintiff which is a nationalized bank.
In view of the testimonies of the plaintiff's witnesses and the material placed on record, there is no reason to disbelieve the case of the plaintiff bank as all the necessary documents have been duly proved by the witnesses of the plaintiff bank. Therefore, the plaintiff bank is entitled to a Page 6 of 7 S.C. Malik, ADJ05 (Central), Delhi 22022011 Suit No. 171/2010 Bank of India Vs. Sandoo Enterprises decree for the suit amount of Rs. 4,29,558/ (Rupees Four Lac Twenty Nine Thousand Five Hundred and Fifty Eight Only). Issue No. (iv) is accordingly decided in favour of the plaintiff bank and against the defendants.
So far as Issue No. (v) with respect to pendentelite and future interest is concerned, admittedly the transaction between the parties was a commercial transaction and the banking business inherently calls for charging of interest on the loan facility extended and without the same the bank cannot run. Therefore, the plaintiff bank is entitled to pendentelite and future interest. However, in the overall facts and circumstances of this case, I deem it fit and proper to grant pendentelite and future interest @ 12% per annum till realization of the decreetal amount despite the agreed rate of interest being more in view of financial condition of the defendants as explained during the course of arguments. Issue No. (v) is thus decided accordingly.
In view of my findings recorded on various issues recorded as hereinabove mentioned, I hereby pass a decree in favour of the plaintiff Bank of India and against the defendants in the sum of Rs. 4,29,558/ (Rupees Four Lac Twenty Nine Thousand Five Hundred and Fifty Eight Only) along with pendente lite and future simple interest @ 12% p.a. till realization of the decreetal amount with costs of this suit.
Decree sheet be prepared accordingly.
File be consigned to record room.
Dictated and Announced in ( S.C. MALIK )
the open Court on 22022011. ADJ05 (Central)
Delhi.
Page 7 of 7 S.C. Malik, ADJ05 (Central), Delhi
22022011