Delhi District Court
With One Of Its Branches At vs Naresh on 7 December, 2018
IN THE COURT OF SH. ANKIT SINGLA: ACJ/ARC/CCJ :
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No. 431/2018
CNR no.: DLNE03-000713-2018
In the matter of:
Bank of Baroda
(A Body Corporate Constituted Under
The Banking Companies (Acquisition and Transfers of
undertaking) Act, 1970)
(Through its Authorized Representative)
Having its head office at:
Mandavi, Baroda 396006
With one of its Branches at:
DMR-III Region, Bank of Baroda,
Bhajanpura Branch, F-613,
Khajuri Khas, Delhi-110094. ................. PLAINTIFF
Versus
1. Naresh
S/o Ram Prasad
R/o C-124, Gali no.3,
Ambika Vihar, Karawal Nagar,
North East District,
Delhi-110094
Working as:
Swachhata Karamchari
ID no.51801603)
DEMS Department, Shahdara South Zone,
East Delhi Municipal Corporation,
Behind Karkardooma court, Delhi.
2. The Sanitation Superintendent,
DEMS Department, Shahdara, South Zone,
East Delhi Municipal Corporation,
Behind Karkardooma Courts,
Delhi. ................... Defendants.
CS No. 431/2018 Bank of Baroda vs. Naresh Page 1 of 10
Date of Institution : 01.08.2018
Date of reserving the judgment : 07.12.2018
Date of Judgment : 07.12.2018
Decision : Decreed
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
AND MESNE PROFIT AND DAMAGES
JUDGEMENT:
1. Vide this judgment, I shall decide the suit for recovery filed by the plaintiff against defendants.
2. Briefly stated the facts as averred in the plaint are as follows:
a) The plaintiff is a bank corporated and constituted under The Banking Companies(Acquisition and Transfers of Undertaking) Act, 1970. Sh. Ajay Kumar is the authorized signatory and attorney of the plaintiff bank.
b) The defendant no.1 is the principal borrower and defendant no.2 is the employer of the defendant no.1, which had given confirmation of check of arrangement, confirmation of disbursement of salary to designated account, confirmation to obtain NOC.
c) The plaintiff has already served mandatory notice under Section 80 CPC to defendant no.2. The present suit has been filed after the expiry of two months.CS No. 431/2018 Bank of Baroda vs. Naresh Page 2 of 10
d) It is stated that the defendant no.1 had taken personal loan of Rs.3,15,000/ from the plaintiff bank. It is further stated that defendant no.1 had also submitted necessary documents i.e Employee Identity card, PAN Card, Aadhaar Card, Bank Statement and Salary slip.
e) It is stated that defendant no.1 had executed demand promissory note, letter of installment, declaration cum undertaking cum authority, irrevocable undertaking cum authority regarding recovery from salary account, irrevocable undertaking regarding deductions from the salary.
f) It is stated that defendant no.2 on behalf of defendant no.1 also submitted letter of confirmation of check of arrangement from employer to the bank, letter of confirmation of disbursement of salary by the employer to designated account, letter of confirmation from employer to obtain NOC of the bank.
g) It is stated that the plaintiff bank opened a loan account. It is stated that the defendant no.2 on its part despite giving confirmation of disbursement of salalry to designated account failed to remit the monthly salary of defendant no.1 to the concerned account.
h) It is further submitted that defendant no.1 vide letter dated 28.07.2016 acknowledged his liability for an amount of Rs.2,46,700.28/. It is stated that due to consecutive default in CS No. 431/2018 Bank of Baroda vs. Naresh Page 3 of 10 repayment of loan, account of defendant no.1 was declared non performing assets.
i) It is stated that plaintiff sent letter dated 25.05.2018 to defendant no.2 requesting for recovery of payment of Rs.2,37,274.83/ from the salary of defendant no.1 and remittance of the same to the plaintiff bank in terms of letter of confirmation dated 28.02.2014, but defendant no.2 failed to make any payment to the plaintiff bank.
g) It is stated that as per the statement of account maintained by the plaintiff bank, defendant no.1 is liable to pay Rs.2,43,346.48/ which includes principal amount of Rs.2,23,400.05/ and unapplied interest of Rs.19,946.43/.
3. In such circumstances, it is prayed that decree may be passed against the defendant no.1.
4. Summons for settlement the issues were served upon the defendants. Defendant no.1 was served on 09.08.2018, but despite service of summons neither defendant no.1 appeared in the court nor filed any WS, therefore vide order dated 01.10.2018, defendant no.1 was proceeded exparte. On 01.10.2018, Sh. Suresh Pal, UDC appeared on behalf of defendant no.2 and stated that defendant no.2 is already deducting Rs.5947/ per month from the salary of defendant no.1. On the next date of hearing, it was stated that three CS No. 431/2018 Bank of Baroda vs. Naresh Page 4 of 10 cheques have already been given to the plaintiff.
5. Defendant no.2 filed written statement (hereinafter referred to as the WS). In WS, it is stated that suit is barred by the provisions of Section 477/478 of the DMC Act, 1957 for want of service of statutory notice. It is stated that the plaintiff has not come with clean hands and has suppressed material facts from the court. It is stated that after receiving the letter dated 25.05.2018 from Bank of Baroda for recovery, the loan amount in a monthly installment Rs.5947/ has been deducted from the salary of defendant no.1. All other averments raised in the plaint are denied by defendant no.2.
6. After completion of pleadings vide order dated 01.11.2018, the following issues were framed:
i) Whether the suit of the plaintiff is barred by section 477/478 DMC Act?OPD2
ii) Whether the plaintiff has not come with clean hands?OPD2
iii) Whether the plaintiff is entitled for recovery as prayed for?
OPP iv) Relief.
7. Thereafter, an application under Order 14 Rule 5 CPC was moved by ld. Counsel for the plaintiff for striking off issue no.i) and ii) which was allowed to the extent that onus to prove issue no.1 and 2 was upon the defendant no.2 and not on the plaintiff.CS No. 431/2018 Bank of Baroda vs. Naresh Page 5 of 10
8. Plaintiff bank examined its authorized signatory Sh. Ajay Kumar as PW1. This witness tendered his evidence by way of affidavit and reiterated the averments made in the plaint. PW1 relied upon following documents.
Ex.PW1/1. Copy of power of attorney dated 11.07.2017 Ex.PW1/2 (colly.) Original application form and appraisal cum sanction memo dated 28.02.2014 Ex.PW1/3. Original form no. 135 Ex.PW1/4 (colly.). Copy of employment card, PAN Cad, Aadhar Card Bank Passbook Ex.PW1/5 (colly.). Original pay slips Ex.PW1/6. Original sanction letter dated 28.02.2014 Ex.PW1/7. Attestation memo dated 28.02.2014 Ex.PW1/8. Demand Promissory note dated 28.02.2014 Ex.PW1/9. Letter of installment with acceleration dated 28.02.2014 Ex.PW1/10. Declaration cum undertaking cum Authority dated 28.02.2014 as Ex.PW1/11. Irrevocable undertaking cum Authority regarding recovery from salary account dated 28.02.2014 Ex.PW1/12. Irrevocable undertaking regarding deductions from salary.
Ex.PW1/13. Letter of confirmation of check off arrangment from employer to bank Ex.PW1/14. Letter of confirmation of disbursement of salary by the employer to designated account with CS No. 431/2018 Bank of Baroda vs. Naresh Page 6 of 10 the bank.
Ex. PW1/15 Letter of confirmation from employer to obtain NOC of the bank in case of severance.
Ex.PW1/16. Copy of letter dated 28.02.2014 Ex.PW1/17. Original letter of acknowledgement of debt dated 28.07.2016 Ex.PW1/18. Copy of letter dated 25.05.2014 Ex.PW1/19 (colly.). Statement of loan account
9. Thereafter, PE was closed. Defendant no.2 did not examine any witness in DE.
10. Final arguments were addressed by Ld. Counsel for plaintiff and ld. Counsel for defendant no.2. I have gone through the record and also considered the rival contentions. The submissions of Counsels of the parties are not repeated here for sake of prolixity and same are proposed to be dealt with issue wise.
Issue no.i)
i) Whether the suit of the plaintiff is barred by section 477/478 DMC Act?OPD2
11. The onus to prove issue no.1 was upon the defendant no.2. It is stated that the plaintiff did not serve any notice under Section 477/478 of the DMC Act, 1957, therefore, the suit is barred by Section 477/478 of the DMC Act. Legal CS No. 431/2018 Bank of Baroda vs. Naresh Page 7 of 10 notice under Section 447 of the DMC Act is mandatory only in those cases, which are filed with regard to matters pertaining to DMC Act. However, the present suit has been filed for recovery and defendant no.2 has been impleaded as party as employer of defendant no.1. The controversy in the present matter has nothing to do with the DMC Act. Accordingly, this court is of the view that the present suit is not barred by DMC Act. Hence, this issue decided against defendant no.2.
Issue no.ii)
ii) Whether the plaintiff has not come with clean hands? OPD2
12. The onus to prove this issue was upon the defendant no.2. Defendant no.2 has failed to explain as to what material facts have been concealed by the plaintiff. Infact, defendant no.2 did not lead any evidence. Even in the WS, defendant no.2 failed to aver any material fact which have been concealed by the plaintiff. Accordingly, this issue is also decided against defendant no.2.
iii) Whether the plaintiff is entitled for recovery as prayed for?OPP
13. The onus to prove this issue was upon the plaintiff. The plaintiff has filed the present suit for recovery of Rs.2,43,346.48/ from defendant no.1. Since, defendant no.1 failed to appear before this court, he was proceeded exparte, therefore testimony of PW1 has remained unrebutted as far as CS No. 431/2018 Bank of Baroda vs. Naresh Page 8 of 10 defendant no.1 is concerned. Even ld. Counsel for the defendant no.2 failed to question the genuineness of the claim of the plaintiff. During crossexamination, PW1 admitted that notices Ex.PW1/16 to 18 were issued to the EDMC and EDMC had deposited three cheques of Rs.5947/ each as reflected in the account statement Ex. PW1/19.
14. Ld. Counsel for defendant no.2 stated that cheques of Rs.5947/ remitted during the course of trial, which was admitted by witness of plaintiff. Except for three cheques of Rs.5947/ other liability of defendant no.1 is denied by defendant no.2. Accordingly, there is no reason to disbelieve the testimony of PW1 which is supported by documents Ex. PW1/1 to Ex. PW1/19. Accordingly, this court is of the view that defendant no.1 is liable to pay Rs.243346/ to the plaintiff. Hence, this issue is decided in favour of the plaintiff and defendant no.1.
15. The plaintiff has further sought pendentelite and future interest @ 15% per annum during the pendency of suit till realization. As far as law regarding rate of pendent lite and future interest is concerned, it is settled law that the same can be granted only according to the provision of section 34 CPC. As per section 34 CPC, the rate of pendent lite and future interest can not exceed 6% except agreement to the contrary. As per section 34 CPC even if, there is such agreement regarding rate of interest, same is subject to judicial discretion of the court. As no CS No. 431/2018 Bank of Baroda vs. Naresh Page 9 of 10 agreement is placed by plaintiff to show that there was any agreement, plaintiff can be granted interest only at the rate of 6% per annum. Accordingly, plaintiff is granted interest @ 6% p. a. on the decreetal amount from the date of filing of the suit till realization.
Relief:
16 In view of the aforesaid discussion, the suit of the plaintiff is decreed for a sum of Rs.2,43,346/. The plaintiff is also entitled for pendentalite and future interest @ 6% p.a. on the decreetal amount. The plaintiff is also entitled for cost. Decree sheet be prepared accordingly and file be consigned to the record room.
Announced in the open court (ANKIT SINGLA) th on 7 December,2018 ACJcumARCcumCCJ NorthEast District, KKD Delhi.
Digitally signed by ANKIT SINGLAANKIT Location: North- East,Karkardooma, SINGLA Delhi Date: 2018.12.10 14:55:56 +0530 CS No. 431/2018 Bank of Baroda vs. Naresh Page 10 of 10