Delhi District Court
Kotak Mahindra Bank vs Archana Sharma on 30 November, 2016
IN THE COURT OF SH. ANKIT SINGLA:CIVIL JUDGE:03:CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 85/2015
(596264/2016)
Kotak Mahindra Bank
(Formerly known as ING VYASA BANK LTD.,)
Having its branch office at
Consumer Finance Department,
871, East Park Road,
Karol Bagh, New Delhi 110 005.
.......... Plaintiff
VERSUS
Archana Sharma
(Partner of Alfatech Industrial Corporation)
W/o Rajeesh Sharma,
D63, 3rd Floor, Paryavaran Complex,
Nabe Sarai, New Delhi - 110 030.
Also at:
Archana Sharma
(Partner of M/s. Alfatech Industrial Corporation)
W/o Rajnessh Sharma
R/o E128/3, 2nd Floor,
Mohammad Pur, New Delhi - 110 006.
.........Defendant
SUIT FOR RECOVERY OF RS. 2,71,410.18/
Date of institution : 24.07.2015
Date of reserving of orders : 21.10.2016
Date of decision : 30.11.2016
CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 1/8
J U D G M E N T
1.Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking recovery of Rs. 2,71,410.18/ with interest.
2. In nutshell, the case of plaintiff is as follows: a. The plaintiff is a scheduled commercial bank with in the meaning of term defined under the Reserve Bank of India Act 1934, incorporated under relevant provisions of the Companies Act, 1956, having its registered office at ING Vyasa, House No. 22, M.G. Road, Banglore and interalia has a branch office at Consumer Finance Department, 871, East Park Road, Karol Bach, New Delhi and is engaged in the business of banking and finance as permissible under relevant provisions of Banking Regulation Act 1949 subject to guidelines of the Reserve Bank of India promulgated from time to time.
b. It is averred that Mr. Mohd. Rashid, Manager is duly authorized by the plaintiff bank vide Power of Attorney dated 19.09.2014 and is competent to file, sign, verify institute the present suit and follow up the legal proceedings. The erstwhile lender back i. e. ING Vyasa Bank got amalgamated with the plaintiff bank and scheme of the amalgamation was approved by the Reserve Bank of India under the subsection (4) of Section 44A of Banking Regulation Act, 1949 vide its order dated 31.03.2015 which came in force wi. e. f. 01.04.2015.
CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 2/8 After the amalgamation , the name of the erstwhile bank i. e. ING Vyasa Bank has been changed to Kotak Mahindra Bank Limited and assets of the ING Vyasa Bank are taken over by the applicant bank including the present loan account. The loan of the defendant is also transferred to the applicant bank with terms and conditions of the original loan agreement remaining and unedited except for change of name by virtue of Order/notification of the RBI, aforesaid.
c. It is further averred that defendants are the partners of an unregistered partnership firm and finances has been availed in the name of said partnership firm but, given the fact of its being an unregistered partnership firm, present suit has been instituted against the partners of the said firm. The defendants made a representation for availing a loan to purchase a loan to purchase vehicle namely Maruti/ Swift Dzire Petrol ZXI bearing registration number DL9CL7917, Chasis Number 364958, Engine Number K12MN1106233 and plaintiff bank sanctioned loan of Rs. 5,00,000/ to the defendant. The defendant in terms of amortization/repayment schedule inscribed in the agreement undertook to repay in 60 EMIs of Rs. 10,977/ and to secure repayment of loan hypothecated subject property aforementioned in favour of the plaintiff bank and undertook to comply with the terms of subject agreement which is in the form of standard form contract containing provisions signifying trade usage and practice prevalent in the said field of trade/commerce with concurrence of regulators in the field.
CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 3/8 d. It is stated further that after availing the loan facility and enjoying the possession of subject property, defendant have failed to adhere to financial discipline and committed willful default. It is alleged that despite request, follow up and service of notice of demand, defendants have failed to adhere to terms of the subject agreement and further neglected to pay heed to the request of plaintiff's officers and representatives to regularize the subject account. It is averred that this conduct of defendants have constrained plaintiff bank to terminate subject agreement, recall the facility and called upon defendant to pay the foreclosure value of subject account as on 08.01.2015 for Rs. 2,71,410.18/ within 7 days of notice vide termination/loan recall notice dated 14.01.2015.
3. The suit qua defendant no. 2 was dismissed by this court vide order dated 10.11.2015. The defendant no. 1 was served by way of affixation but, she failed to appear, therefore, on 10.11.2015, she was proceeded exparte. During pendency of trial Sh. Prateek Narang was substituted as AR of plaintiff in place of earlier AR.
4. In support of his case, plaintiff examined only one withess I. e. Sh. Prateek Narang, AR of the plaintiff as PW1. He filed his evidence by way of affidavit which is exhibited as Ex. PW1/A. The certificate U/s 65 B of Indian Evidence Act is exhibited as Ex. PW1/B. The PW1 relied upon following documents in support of his testimony: Exhibits/ Marks Description of documents CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 4/8 Ex.PW1/1 Copy of Board Resolution dated 29.04.2016 (OSR). Ex.PW1/2 Order of Reserve Bank of India dated 31.03.2015.
Ex.PW1/3 Original Loan Application Form.
Ex.PW1/4 Original Agreement for Vehicle Loan and Hypothecation
dated 19.05.2011.
Ex.PW1/5 Original Demand Promissory Note dated 19.05.2011.
Ex.PW1/6 Original Declaration by the defendant dated
19.05.2011.
Ex.PW1/7 Original Addendum to the Auto Loan Agreement dated
19.05.2011.
Ex.PW1/8 Original Sanction Letter dated 19.05.2011.
Ex.PW1/9 De exhibited and same is marked as Mark.
Ex.PW1/10 Courier Receipt respectively.
Ex.PW1/11 Foreclosure statement of account dated 08.01.2015.
Mark A Photocopy of Notarized Partnership Deed dated
10.09.2008.
Mark B Registration Certificate (Internet Print Out).
Mark C Insurance Certificate (Internet Print Out).
Mark D Photocopy of Take Delivery Letter to Demand
Promissory Note dated 19.05.2011.
5. The unrebutted testimony of PW1 supported by Ex.PW1/3 to Ex.PW1/8 proves that defendant no. 1 had taken loan of Rs. 5,00,000/ on 19.05.2011 which was repayable in 60 installments of Rs. 10,997/ each. The statement of account Ex. PW1/11 shows that defendant no. 1 failed to clear the dues and Rs. 1,71,755/ was outstanding as principal amount. The statement of account further shows that Rs. 65,973/ were outstanding for pending installments, CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 5/8 Rs. 13,036/ as late payment charges, Cheque Rs. 14,855/ as cheque bouncing charges, Rs. 5,789/ as foreclosure charges and thus, total amount due against defendant no. 1 was Rs. 2,71,410/. Thus, this court is of the view that plaintiff is entitled amount from defendant.
7. The plaintiff has further prayed for interest @ 11.5 % p. a. on the decreed amount. Section 3 of the Interest Act and section 34 of CPC deals with the interest to be awarded. Section 3 of the Interest Act is reproduced below:
8. Section 3, Power of court to allow interest: (1) In any proceedings for the recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damages already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person making such claim, as the case may be at a rate not exceeding the current rate of interest for the whole may be at a rate not exceeding the current rate of interest for the whole or part of the following period, that is to say:
(a) if, the proceedings relate to a debt payable by virtue of a written instrument at a certain time, then, from the date when the debt is payable to the date of institution of the proceedings:
(b) If, the proceedings do not relate to any such debt, then from the date mentioned in this regard in a written notice given by the person entitled or the person making the claim the person liable that interest CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 6/8 will be claimed, to the date of institution of the proceedings:
9. "Provided that where the amount of the debt or damages has been repaid before the institution or proceedings, interest shall not be allowed under this section for the period after such payment."
10. Similarly, Section 34 of CPC also deals with interest to be awarded at the time of decree. The law relating to grant of interest has been exhaustively laid down in Smt. Balwant Kaur Vs. Life Insurance Corporation, AIR 2005 P & H 140. In this judgment while referring to the decision of Hon' ble Supreme Court given in Central Bank of India Vs. Ravindra & Ors. (200103) 129PLR 137 (SC), the Hon'ble Punjab and Haryana Court held that, " in the aforesaid case the Hon' ble Apex Court has held that, Mulla on the code of CPC sets out 3 divisions of interest as dealt in Section 34 of CPC. This division is on, (1) an interest accrued prior to the institution of suit on the principal sum adjudged;(2) additional prior to the institution of suit on the principal sum adjudged from the date of suit to the decree, at such rate as the court deems reasonable; (3) further interest on the principal sum adjudged from the date of decree to the date of payment or to such earlier date as the court things fit, at the rate court not exceeding 6% p. a.
11. In view of above, I am of the considered opinion that interest @ 6% will be sufficient to meed the ends of justice. Hence, in view of the aforementioned discussion, the suit of the plaintiff is CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 7/8 decreed with costs for a sum of Rs. 2,71,410/ with interest @ 6% from the date of filing of the suit till its realization.
RELIEF With aforesaid discussion, the suit of the plaintiff is decreed in favour of plaintiff for a sum of Rs. 2,71,410/ with interest @ 6% from the date of filing of the suit till its realization. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in the open court today i. e. on 30.11.2016.
(ANKIT SINGLA) CIVIL JUDGE03C/THC DELHI /30.11.2016 CS No. 85/15 Kotak Mahindra Bank Vs. Archana Sharma 8/8