Delhi District Court
Memo Of Parties vs Dr. Vijay Bhushan Gauitam on 29 September, 2012
IN THE COURT OF MS. ANJANI MAHAJAN CIVIL JUDGE 02, (NORTH)
DISTRICT AT TIS HAZARI COURT, DELHI
SUIT NO. 297/02
Unique ID No. 02401C0224792002
MEMO OF PARTIES
Citibank N.A.
A body corporate, constituted under the law
prevailing in USA, and having its Registered
office at 399, Park Avenue, New York, 10043,
USA and inter alia, a branch office at Jeevan
Bharti Building, 124, Connaught Circus,
New Delhi 110 001. ...........Plaintiff.
VERSUS
Dr. Vijay Bhushan Gauitam,
G102, First Floor, Vikas Puri,
New Delhi110018.
Also At:
105, Gupta Plaza, M4,
Vikas Puri, New Delhi110018
(Being the clinic of the defendant) .....Defendant
Date of institution of the Suit : 30.03.1998
Date on which judgment was reserved : 20.09.2012
Date of announcement of Judgment : 29.09.2012
SUIT FOR RECOVERY OF A SUM OF RS. 2,62,428.21 (RUPEES TWO LACS
SIXTY TWO THOUSAND FOUR HUNDRED TWENTY EIGHT AND PAISE
TWENTY ONE ONLY).
J U D G M E N T
1. By this judgment, I shall dispose of suit for recovery of Rs. 2,62,428.21/ filed by the plaintiff against the defendant.
2. The plaintiff had originally filed the suit under summary provisions of U/o Suit No. 297/02 1 37 CPC, however, vide order dated 23.04.1998 the suit was order to be converted to an ordinary suit.
3. It is the case of plaintiff the plaintiff is a body corporate constituted under the laws prevailing in USA and having its registered office at USA and branch office at Jeevan Bharti Building, 124, Connaught Circus, New Delhi.110001. The plaintiff bank executed a power of attorney on 11.10.1995 in favour of Northen India Credit Factors Ltd. (NICL) acting through its officers to sign, verify, file, institute and prosecute all suits for and on behalf of the plaintiff bank. On 19.11.1997 the name of NICL was changed to Citicorp Credit Services India Ltd. (CCSIL) vide resolution passed by its Board of Directors dated 20.02.1998 authorised its officer Sh. Jatindeep Sachdeva to sign, verify, file the suit on behalf of the plaintiff bank. On 31.05.1997 the defendant approached the plaintiff bank and applied for a loan facility under its Professional Credit Scheme for the purpose of purchasing equipments for his eye clinic at the address stated in the title of the suit and accordingly the plaintiff bank sanctioned a loan of Rs. 2,50,000/ to the defendant on the execution of a Loan Agreement dated 12.06.1997 between the plaintiff bank and defendant. It is further stated that as per the terms of the loan agreement dated 12.06.1997, the defendant had to repay the loan amount in 36 equated monthly installments of Rs.9,419/ each. The loan amount carried on interest @ 21 p.a. with monthly rests on the outstanding balance in consonance with the policy of the bank. The loan was disbursed to the defendant on 28.06.1997 and the loan account number of the defendant was N31C012160671.
It is further stated that the following documents were executed by the Suit No. 297/02 2 defendant in favour of the plaintiff bank on 12.06.1997:
i) Loan Agreement dated 12.06.1997
ii) Demand promissory Note dated 12.06.1997 for a sum of Rs. 2,50,000/ with interest thereon @ 21 per cent per annum or at the rate which from time to time be assigned by the bank in accordance with the directives of the Reserve Bank of India for value received.
The defendant failed to adhered to the financial discipline of repayment of the loan amount either towards principal or interest or charges. Several cheques issued by the defendant, towards the repayment of the loan which was sanctioned/ granted by the plaintiff bank were dishonoured/returned back unpaid with the remarks " Refer to the Drawer"/ Insufficient Funds". In spite of several reminders sent and persistent requests made by the plaintiff bank to which the defendant had been promising from time to time, the defendant failed to honour its commitments.
The plaintiff bank sent a registered legal notice dated 12.03.1998 calling upon the defendant to pay the outstanding amount of Rs.2,45,428.21/ within seven days of the receipt of the said notice which amount was due as on 12.03.1998.
Despite service of the said legal notice, the defendant failed to repay any amount.
As per the books of account the defendant was liable to pay a sum of Rs. 2,62,428.21/ towards principal, interest and other dues as on 26.03.1998.
4. The defendant filed his written statement vide order dated 18.11.2003. Application of the defendant for amendment of WS was partly allowed. In the Suit No. 297/02 3 preliminary objections taken in the written statement, it was stated by the defendant that the suit was beyond limitation, plaintiff bank had not disbursed the impugned amount to the defendant. The documents, i.e. demand promissory note etc. were signed on 12.06.1997 and the amount was disbursed on 26.06.1997 showing that the documents were signed without any consideration amount of Rs.2,50,000/ was never disbursed to him. Plaintiff had not come to court with clean hands and had suppressed the material facts as plaintiff did not disburse the alleged amount to the defendant as per agreement and Sh. Jatindeep Sachdeva had no locus standi to file and verify the suit on behalf of the plaintiff. There was no cause of action to file present suit. On merits the defendant denied the claim of the plaintiff. It was averred that the plaintiff bank was required to disbursed Rs.2,50,000/ to the defendant with the aid of which the defendant was to update his clinic and the defendant was made to sign certain blank documents by the plaintiff. The said documents were blank and did not bear any date, amount or other details. It was promised to the defendant by the plaintiff bank that after signing the documents the loan would be disbursed to the defendant, however, the said amount was not disbursed. The defendant denied that he had agreed to repay the loan in 36 equated monthly installments of Rs.9,419/ each. The defendant, however, denied executing demand promissory note of Rs.2,50,000/ and averred that the the demand Promissory note when signed was a blank document. The defendant denied that he had paid only 5 installments and stated that the total sum of Rs.99,917/ has been paid to the plaintiff by way of cheques details of which have been provided in the WS. The defendant annexed a copy of certificate of Rs.84,771/ issued by Vijaya Suit No. 297/02 4 Bank and receipt of Rs.9,419/ which was issued by M/s. Vivadi Management Services on behalf of the plaintiff. Defendant denied any legal notice from the plaintiff. Defendant also disputed the correctness of the statement of account and stated that the same nowhere showed any disbursement to the defendant. It was, therefore, prayed that the present suit be dismissed with cost.
5. Replication was filed by the plaintiff denying the averments of the written statement and reiterating the averments made in the plaint.
6. Vide order dated 04.05.2001 following issues were framed.
1. Whether the plaintiff is entitled to recover the suit amount with pendent lite and future interest at the rate of 24% per annum? OPP
2. Whether the plaintiff has disbursed the sanctioned loan amount to the defendants? OPP
3. Whether the suit is barred by limitation and as such not maintainable? OPD
4. Whether the plaintiff bank has filed an incorrect statement of account and as such the suit is not maintainable? OPD
5. Relief
7. Evidence was led by both the parties. Plaintiff had earlier examined Sh. Dinesh Bilani in examination in chief as PW1 however on 21.02.2005, the said witness was dropped since he had left the employment of Plaintiff. Thereafter, Sh. Kuljeet Singh Uppal, authorised representative of plaintiff tendered his evidence as PW1 and was subjected to crossexamination. Defendant examined himself as DW1 and was subjected to crossexamination.
8. Final arguments were advanced orally by Ld. Counsel for the plaintiff while defendant filed written submissions. I have given my thoughtful consideration to the oral and written arguments of the parties.
Suit No. 297/02 5
My issue wise findings are as follows Issue no. 3 Whether the suit is barred by limitation and as such not maintainable? OPD
9. Issue no. 3 is taken up first. The onus to prove this issue was on the defendant. The loan was sanctioned on 12.06.1997 and was to be repaid in 36 equated monthly instalments of Rs. 9419/ each. As per the plaintiff, defendant started defaulting in paying the instalments from December 1997. The present suit was filed in March 1998. By no stretch of imagination can the suit be considered to be beyond limitation. Defendant has made this bald plea without substantiating the same and has miserably failed in discharging the onus placed on him with respect to this issue. Issue thus decided against the defendant and in favour of the plaintiff.
Issue no. 1 and 2 Whether the plaintiff is entitled to recover the suit amount with pendent lite and future interest at the rate of 24% per annum? OPP Whether the plaintiff has disbursed the sanctioned loan amount to the defendants? OPP
10. To discharge the onus of proving its case, the plaintiff examined Sh.Kuljeet Singh Uppal as PW1 who exhibited and relied on the document Ex. PW1/3 i.e. the general power of attorney executed by the plaintiff in favour of eServe International Ltd. and proved Ex. PW1/4, the general power of attorney in favour of PW1 by eServe International Ltd., thus confirming his authority to depose on behalf of the plaintiff. PW1 proved the original loan application and loan agreement as Ex. PW1/6 colly and the demand promissory note was proved as Ex. PW1/7. The twentythree dishonoured cheques of the plaintiff were exhibited as Ex. PW1/8 (colly). Legal notice dated 13.02.1998 sent at the last known Suit No. 297/02 6 address of the defendant alongwith the postal receipt were exhibited as Ex. PW1/9 (colly). The certified copy of the statement of accounts, duly certified as per the Bankers Book of Evidence Act was exhibited as Ex.PW1/10 while the balance confirmation certificate was proved as Ex. PW1/11. Plaintiff's witness stood firm to the case of the plaintiff and denied the suggestion that the documents were got signed blank from the defendant. It was also denied that the legal notice Ex. PW1/9 was not served upon the defendant. PW1 also denied the suggestion that the officials of the bank did not use to disclose the terms and conditions of the loan at the time of loan transaction and would only get the documents signed without explaining the contents of the same. Nothing contradictory to the case of the plaintiff, or in favour of the case of the defendant came out of the crossexamination of the plaintiff witness. It is also pertinent to note that the defendant is an educated, qualified professional and not an illiterate person therefore even suggesting that the documents were gotten signed from the defendant blank or without defendant being made to understand the contents thereof appears exfacie untenable and an extremely weak plea.
11. The defendant does not deny entering into the loan transaction with the plaintiff for the sum of Rs. 2,50,000/. Defendant admits his signature on the loan agreement Ex. PW1/6 and on the demand promissory note Ex.PW1/7 but denies the contents thereof. It is the defendant's case that the plaintiff did not disburse the entire amount and only disbursed Rs.73,277.76p vide DD Ex. DW1/1/ Mark A. Defendant also relied on Ex. DW1/3 which was the defendant's letter dated 25.11.1997 purportedly sent to the NICL branch of the plaintiff and the U.P.C. was exhibited as Ex. DW1/5. Defendant also claimed that he had informed the Suit No. 297/02 7 plaintiff regarding the change of address from Janakpuri to Dilshad Garden however defendant did not state in his affidavit of evidence as to how the information was given, not even a copy of any such letter informing of change of address is placed on record and simply U.P.C.s dated 30.03.1998, 20.08.1999 and 04.10.1999 have been exhibited as Ex. DW1/6, DW1/7 and DW1/8. It is not clear as to what was sent vide the aforesaid U.P.C.s and defendant cannot expect the court to assume facts not brought on record. In the crossexamination, the defendant as DW1 admitted issuing the 23 post dated cheques exhibited as Ex. PW1/8 colly in lieu of instalments of Rs. 9,419/ each. The defendant testified that he did not know whether he had filed any document on record regarding information of change of address but volunteered that he had given the same to his counsel who may have done so. The voluntary statement appears to be an afterthought. The defendant further admitted that the address mentioned in the memo of parties by the plaintiff was the earlier address of the defendant. DW1 deposed that he wrote to the plaintiff for the first time regarding the fact that complete loan amount be disbursed in November 1997 and used to communicate with the officials Ms. Yukta Garde and Sh. Vishal Prasad, officers of the bank and stated that he had records of the calls made by him to the bank in his diary which he had not placed on record. DW1 denied the suggestion that the documents Ex. DW1/3 and DW1/4 were forged documents. The defendant admitted that thereafter he did not write any further letter to the plaintiff and denied the suggestion that he had not written any further letter since the complete loan had been given to him. In response to the telegram received by the defendant regarding the payment of loan, defendant deposed that he had filed a caveat Suit No. 297/02 8 before the Ld. District Judge. Defendant claimed that he had made last payment on 02.09.1999 and that he had made payments of one or two instalments in cash. The conduct of the defendant appears to be malafide, the defendant immediately took aid of legal machinery by filing a caveat Ex. DW1/9 upon receipt of the telegram, however, if the defendant's pleas are believed then even though the defendant had not received the entire loan amount, the defendant did not even write to the plaintiff any further and simply remained quiet after writing the letter Ex. DW1/3 dated 25.11.97 and did not file any legal proceedings, instead continued to make the payment of instalments without complaint. DW1 also evaded giving a proper answer to the question put by the plaintiff as to whether the defendant had informed the plaintiff not to get the cheques Ex. PW1/8 colly encashed. Defendant admitted receiving notice from the plaintiff and also deposed that he had replied to the same, however, there is no such reply on record.
12. The defendant relied on Ex. DW1/3 which is the purported letter dated 25.11.97 addressed to the Director, NICL. This letter is admittedly not sent by registered post. No permission to lead secondary evidence was sought despite the exhibition of the document being objected to by the plaintiff. Ex. DW1/3 is not proved. The defendant has thus failed to prove that he ever wrote to the plaintiff that complete loan amount had not been disbursed to him. Ex. DW1/13 is the purported certificate issued by Vijaya Bank to the defendant showing that ten cheques were passed from the defendant's account favouring the plaintiff, however though exhibited, yet this document cannot be said to be proved. The defendant failed to examine the author of the certificate i.e. official from Vijaya Suit No. 297/02 9 Bank to authenticate the said certificate, who would have testified regarding the veracity of the document and who would have been subjected to cross examination. The Ex. DW1/13 thus is not proved and cannot be relied upon. Ex. DW1/15 is purported to be a letter sent to the plaintiff's NICL Director for official receipt for payment of Rs. 9419/ dated 21.03.98, and since it is placed on the record by the defendant himself, it can be read against him. In this document, there is no mention of complete loan amount not being disbursed, which lends credence to the suggestion put to the defendant that complete loan amount had been disbursed thus the defendant had not written any further letters to the plaintiff.
13. The plaintiff has proved through PW1 the documents Ex. PW1/6 (colly) i.e. the loan application and agreement, demand promissory note Ex. PW1/7, dishonoured cheques issued by the defendant as Ex. PW1/8 (colly) and the legal notice alongwith postal receipt as Ex. PW1/9 (colly). Further, certified copy of the statement of accounts was exhibited as Ex. PW1/10 while the balance confirmation certificate was exhibited as Ex. PW1/11. As noted above, there is no response to the legal notice by the defendant, defendant deposed that he had not given instructions to his bank to stop payment of the cheques i.e. Ex. PW1/8 colly, and had volunteered that he had informed the plaintiff, but the mode by which he informed the plaintiff has not been stated and neither has the defendant tried to substantiate this bare averment. The aforesaid documentary evidence proves the case of the plaintiff that the entire loan amount was disbursed to the defendant and that the plaintiff is entitled to recovery of the amount. The defendant would be bound by the loan agreement and for the period upto the Suit No. 297/02 10 filing of the suit, the defendant is bound to pay the interest at the contractual rate. I am not inclined to grant the penal charges, collection charges, legal charges and prepayment penal charges as have been claimed by the plaintiff in Ex. PW1/11 as the same are exorbitant. The plaintiff is thus entitled to a sum of Rs. 238784.81p (219,654.86 + 18226.95 + 800 + 103). Pendente lite and future interest at the rate of 24% has been claimed by the plaintiff which is again exorbitant. Ends of justice would be met if interest at the rate of 8% is awarded. Therefore, Plaintiff is also entitled to simple interest at the rate of 8% per annum on the decretal amount from the date of filing of the suit till realisation of the decretal amount.
Issues decided in favour of the plaintiff and against the defendant. Issue no. 4 Whether the plaintiff bank has filed an incorrect statement of account and as such the suit is not maintainable? OPD
14. The onus was on the defendant to prove this issue. The defendant relied on Ex. DW1/3 and DW1/4 which I have already observed while deciding issues 1 and 2 are not reliable or credible documents. Ex. DW1/11/Mark -C is the request for bank certificate by defendant from its banker which is not of much consequence as the bank certificate Ex. DW1/13 is not at all proved. The defendant also relied on his passbook, Mark D, which is merely a photocopy and thus not admissible in evidence. Ex. DW/14 is the receipt dated 24/02/98 for the payment of instalment of Rs. 9419/ made by defendant and in the statement of accounts entry of Rs. 9419/ dated 28/02/98 is being duly reflected. The statement of accounts of the plaintiff is Ex. PW1/10 which is duly certified and proved by the plaintiff's witness PW1. The defendant has also not furnished his Suit No. 297/02 11 own statement of accounts to rebut the statement of accounts filed by the plaintiff and has, even otherwise, failed to discharge the onus of disproving the statement of accounts of the plaintiff.
Accordingly, issue is decided against the defendant and in favour of the plaintiff.
5. Relief
15. In view of the aforesaid discussion, the suit of the plaintiff is decreed for a sum of Rs.2,38,784.81p along with interest at the rate of 8% per annum on the decretal amount from the date of filing of the suit till realization of the decreetal amount. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Announced in the open Court ANJANI MAHAJAN
On 29.09.2012 CJ02 (North)/Delhi
29.09.2012
Suit No. 297/02 12
29.09.2012 Suit No. 297//02
Present: None.
Vide separate judgment of even date the suit of the plaintiff is decreed for a sum of Rs.2,38,784.81p along with interest at the rate of 8% per annum on the decreetal amount from the date of filing of the suit till realization of the decreetal amount. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
ANJANI MAHAJAN Civil Judge 02 (North)/THC Delhi/ 29.09.2012 Suit No. 297/02 13