Delhi District Court
Bank Of Baroda vs Mukesh on 26 August, 2025
CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW010081292024
Civil Suit (Comm.) 523/2024
In the matter of:
Bank of Baroda,
Head Office at Baroda Bhawan,
R.C. Dutt Road, Alkapuri,
Baroda-390007.
Branch Off.:
Netaji Subhash Place Branch,
Ist Floor, Aggarwal Metro Heights
Tower, Pitampura, New Delhi-110034.
Through : Sh. Achin M. Agarwal, Chief Manager
.....Plaintiff
(Through Ms. Geetanjali Sharma, Advocate)
Versus
Mrs. Mukesh,
W/o Sh. Sanjay Kumar,
R/o E-1/50, Ground Floor, Budh Vihar,
Phase-I, New Delhi-110086.
Also At : 385, Raj Pana, Village Shahpur,
Distt. Jind, Haryana-126125.
.....Defendant
(Right to file WS lying struck off vide order dt. 02.04.2025)
Date of Institution of Suit : 30.08.2024
Date of hearing final arguments : 26.08.2025
Date of judgment : 26.08.2025
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CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh
Suit for recovery of Rs.9,51,050.35 (Rupees nine lacs fifty one thousand
fifty and Paise thirty five only) along with pendente lite, future interest and
other charges
JUDGMENT IN TERMS OF ORDER 8 RULE 10 CPC
1. This is a suit for recovery filed on behalf of plaintiff against
the defendant, thereby seeking a decree in the sum of Rs.9,51,050.35
(Rupees nine lacs fifty one thousand fifty and Paise thirty five only) along
with pendente lite, future interest and other charges.
2. The facts of the case in brief, as borne out from the record are
that plaintiff is a body corporate constituted under The Banking Companies
(Acquisition & Transfer of Undertaking) Act, 1970 having its Head Office
at Baroda Bhawan, R.C. Dutt Road, Alkapuri, Baroda-390007 and one of
its branches at Ist Floor, Aggarwal Metro Heights Tower, Pitampura, New
Delhi-110034. The plaintiff is engaged in the banking business throughout
the country.
3. It is the case of plaintiff that on 24.01.2021, defendant
approached it for overdraft facility for her working capital requirement of
her jewellery trade. After considering the request of defendant, the plaintiff
sanctioned the said overdraft facility in the sum of Rs.8,00,000/- for a
period of 12 months, vide sanction letter dated 04.02.2021 and account
No.37340400000128, with interest at the floating rate of 9.30% per annum
and additional interest @ 2% on the amount in default from the date of
default on the outstanding amount. Defendant executed the requisite
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CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh
documents in this regard. It has been averred by the plaintiff that initially,
defendant was regular in repayment of the loan amount but later on, she
committed defaults and failed to repay the outstanding dues. It is further
further stated that defendant paid made last payment of Rs.40,000/- against
the aforesaid loan account. It has further averred that despite repeated
requests/reminders, the defendant did not pay any heed towards repayment
of the aforesaid loan amount and therefore, her account was declared by
plaintiff as NPA on 02.06.2023. Plaintiff also sent SARFAESI Notice to the
defendant on 05.04.2024 but even then the defendant did not clear the
outstanding dues. It is further stated that plaintiff also approached the
DSLSA Mediation Authority, North West District, Rohini Courts, Delhi and
filed pre-institution mediation application in response to which the DSLSA
issued Non-Starter report dated 08.08.2024. It is further averment of
plaintiff that defendant was liable to pay total amount of Rs.9,51,050.35 as
on 10.08.2024, as per the Statement of account being maintained by
plaintiff in respect of the aforesaid loan account of defendant.
4. Accordingly, the plaintiff has filed the instant suit, thereby
invoking the provisions of Section 2(1)(c) of the Commercial Courts Act,
2015.
5. The defendant was served in the matter through e-summons on
29.10.2024, the complete set of paper book was supplied to him on
29.10.2024 itself and he was given time to file WS in the matter. However,
defendant failed to file WS in the matter within 120 days from the service
Suit (Ex-parte) "Decreed" Page 3 of 16
CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh
and hence, the right of defendant to file WS in the matter was closed vide
order dated 02.04.2025 and the matter was listed for hearing arguments u/o
8, Rule 10 CPC for the NDOH.
SCOPE OF ORDER VIII RULE 10 CPC
6. Furthermore, on the same aspect, the Hon'ble High Court of Delhi in
case reported as, "CS (Comm.) No.178/2016", titled as, "Shiv Ratna Paper
(P) Ltd. V/s Ridhi Petrochem Pvt. Ltd." (DOO: 23.03.2017) has been
categorically pleased to lay down as under:
xxxxx
12. Although, certain averments regarding payments
have been made in the written statement, it is also seen
that the written statement is not in conformity with the
provisions of Order VI Rule 15A(1) of the CPC
inasmuch as it is not supported by an affidavit in the
prescribed form; RPPL has not filed a statement of truth
in support of its pleadings. This also attains significance
as in terms of the prescribed format, RPPL would have
to affirm that all documents in power and possession,
control and custody pertaining to the facts and
circumstances of the deponent have been disclosed and
there is no other document in its possession. This is also
mandated by Sub-rule 9 of Order XI of the CPC as
applicable. In the present case, the written statement
filed by RPPL is lacking in material particulars and
further RPPL has also chosen not to file any relevant
documents to support any of its contentions.
13. In the circumstances, this Court is not inclined to
permit any reliance on the written statement filed by
RPPL in terms of Sub-rule 4 of Order VI Rule 15A of the
CPC. Thus for all intents and purposes, the plaint
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CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh
remains uncontroverted. Thus in view of the material
produced by the parties, there is no escaping the
conclusion that SRP is entitled to the amount claimed,
which also includes interest at the rate of 24% p.a. as
specified in the invoices.
Xxxxx"
7. Ld. counsel has made further request that the plaintiff may be asked
to lead evidence in the matter and he should be given a right to cross-
examine the witnesses.
8. The scope of Order VIII Rule 10 CPC in commercial suits
particularly under the New Commercial Courts, Commercial Division and
Commercial Appellate Division of the High Court Act, 2015 has been
examined by Hon'ble High Court of Delhi in case reported as,
"235(2016)DLT 354", titled as, "Nirog Pharma Pvt. Ltd. vs. Umesh Gupta
& Anr.", whereby the Hon'ble High Court has been pleased to lay down as
under:
xxxxx
"11. Order VIII Rule 10 has been inserted by the
legislature to expedite the process of justice. The
courts can invoke its provisions to curb dilatory
tactic, often resorted to by defendants, by not filing
the written statement by pronouncing judgment
against it. At the same time, the courts must be
cautious and judge the contents of the plaint and
documents on record as being of an unimpeachable
character, not requiring any evidence to be led to
prove its contents.
..........
28. The present suit is also a commercial suit within the definition of the Commercial Courts, Suit (Ex-parte) "Decreed" Page 5 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the courts should invoke the provisions of Order VIII Rule 10 to decree such cases."
xxxxxx
9. (i) Further the power and authority of the Courts to straightway decree a suit on the basis of averments made in plaint in terms of Order VIII Rule 10 CPC, in the absence of a written statement filed by the defendant is well settled by the Hon'ble Supreme Court in case reported as, "(1999) 8 SCC 396", titled as, "Balraj Taneja V/s Sunil Madan".
(ii) Furthermore, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.618/2019", titled as, "Parsvnath Developers Limited V/s Vikram Khosla" (DOD: 03.03.2021), has been pleased to lay down as under:
xxxxx
9. Having heard the learned counsel for the plaintiff, it is noted that the defendant has not cared to appear before this Court and was proceeded ex-
parte. The law with regard to Order VIII Rule 10 CPC is clear, which stipulates that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within time permitted or fixed by the Court as the case may be, the Court shall pronounce judgment or make such orders in relation to the suit as it thinks Suit (Ex-parte) "Decreed" Page 6 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh fit and on the pronouncement of same, the decree sheet shall be drawn up. Accordingly, in view of the provisions of order VIII Rule 10 CPC, I proceed to decide the present suit. Further, I am in agreement with the judgments of the Coordinate Benches of this Court as relied upon by the plaintiff in paragraph 8 on the issue that in ex-parte matters no purpose would be served if evidence is directed to be led. There being no written statement filed, the averments in the Plaint being unrebutted, the same are deemed to be correct.
xxxxx
10. (iii) Recently, the Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.72/2022", titled as, "Kleenoil Filtration India Pvt. Ltd. V/s Udit Khatri & Ors." (DOO: 05.01.2023) has been pleased to clear the air regarding power and authority of Court to straightway decree the suit under Order VIII Rule 10 CPC.
ANALYSIS
11. Further, on the aspect of Order VIII Rule 10 CPC, I am also conscious of the observations made by Hon'ble Supreme Court of India in case reported as, "Civil Appeal No.9695/2013", titled as, "Asma Lateef & Anr. V/s Shabbir Ahmad & Ors." (DOD: 12.01.2024), whereby the Hon'ble Apex Court has been pleased to categorically observe that a Court is not supposed to pass a mechanical judgment invoking Rule 10 of Order VIII CPC, merely on the basis of plaint, upon the failure of defendant to file a written statement. I am further conscious of the fact that a judgment, if Suit (Ex-parte) "Decreed" Page 7 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh pronounced by a Court under Rule 10 of Order VIII CPC, must satisfy the requirements of Rule 4(2) or Order XX CPC and thereby conform to its definition provided in Section 2(9) thereof.
12. The Hon'ble Supreme Court of India in case reported as, "(2007) 6 SCC 555", titled as, "C.C Alavi Haji V/s Palapetty Muhammed & Anr. (DOD: 18.05.2007) has been pleased to enunciate the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, the relevant paragraphs whereof reads as under:
xxxxx
"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a Suit (Ex-parte) "Decreed" Page 8 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Suit (Ex-parte) "Decreed" Page 9 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774:
2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
xxxxx"
13. The Hon'ble High Court of Delhi in case reported as, "1980 RLR (Note 44)", titled as, "Kalu Ram V/s Sita Ram" has been pleased to hold that adverse presumption will be drawn if the legal notice is not replied to. The relevant portion of the said judgment reads as under:
xxxxx "It was held that the plaintiff before filing suit had served defendant with a notice making serious allegations that defendant was a trespasser and that his possession was illegal. Defendant did not refute these charges and remained silent by ignoring to reply the notice. Silence showed that he had nothing to deny and hence it was a fit case for raising adverse presumption. Besides the defendant also failed to prove the two contentions that he had raised. There is nothing on record to support the pleas that he had taken. His appeal is without force. The appeal of the plaintiff is supported by the provisions of O. 20 R.12, CPC and trial court should have ordered mesne profits till the delivery of possession. Plaintiff is held entitled to same."
xxxxx (Emphasis supplied)
(ii) Furthermore, the Hon'ble High Court of Delhi in case reported Suit (Ex-parte) "Decreed" Page 10 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh as, "98 (2002) DLT 573", titled as, "Metropolis Travels & Resorts (I) Pvt. Ltd. V/s Sumit Kalra & Ors.", (DOD: 07.05.2002) has been pleased to lay down as under:
xxxxx
13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent.
This Court in the case of Kalu Ram v. Sita Ram 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of the amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent.
Xxxxx
(iii) Even recently on the similar aspect in case reported as, "RFA (OS) No.93/2010", titled as, "Krishan Kumar Aggarwal V/s Life Insurance Corporation" (DOD: 29.08.2014), the Hon'ble High Court of Delhi has been pleased to lay down as under:
Suit (Ex-parte) "Decreed" Page 11 of 16CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh xxxxx
65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur Vs. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
66) In a Division Bench proceedings of this court reported in Metropolis Travels & Resorts Vs. Sumit Kalra 98 (2002) DLT 573 (DB), no adverse inference was drawn against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram 1980 RLR (note) 44 wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality adverse inference should be drawn.
Xxxxx"
14. Therefore, the adverse inference is liable to be drawn against the defendant.
15. (i) Now coming back to the facts of present case. From the Suit (Ex-parte) "Decreed" Page 12 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh perusal of Non-Starter Report dated 08.08.2024, issued under the signatures of learned Secretary, DLSA, North-West, Rohini Courts, it is clearly apparent that despite due service the defendant neither appeared before the District Legal Services Authority during pre-institution mediation nor gave its consent/willingness to participate in the mediation process.
(ii) Furthermore, the plaintiff repeatedly requested the defendant for payment of the due amount. The Hon'ble High Court of Delhi in case reported as, "98 (2002) DLT 573", titled as, "Metropolis Travels & Resorts (I) Pvt. Ltd. V/s Sumit Kalra & Ors.", (DOD:
07.05.2002) has been pleased to hold as under:
xxxxx
13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v.
Sita Ram 1980 RLR (Note) 44 observed that service of notice having been admitted without reservation and that having not been replied in that eventuality adverse inference should be drawn because he kept quite over the notice and did not send any reply. Observations of Kalu Ram's case (Supra) apply on all force to the facts of this case. In the case in hand also despite receipt of notice respondent did not care to reply nor refuted the averments of demand of Suit (Ex-parte) "Decreed" Page 13 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh the amount on the basis of the invoices/bills in question. But the learned Trial Court failed to draw inference against the respondent.
xxxxx
(iii) Furthermore, in another case "RFA (OS) No.93/2010", titled as, "Krishan Kumar Aggarwal V/s Life Insurance Corporation" (DOD:
29.08.2014), the Hon'ble High Court of Delhi has been pleased to lay down as under:
xxxxx
65) No explanation has been rendered by the respondent as to why letter dated 23rd August, 2008 and the legal notice sent by the appellant were not repudiated or even replied. Despite due receipt, the respondent did not bother to even send any response to the letter dated 23 rd August, 2008 or the legal notice, the contents whereof would be deemed to have been admitted. In the judicial precedents reported in Rakesh Kumar Vs. Hindustan Everest Tool Ltd. (1988) 2 SCC 165 & Hiralal Kapur Vs. Prabhu Chaudhary (1988) 2 SCC 172 it was held by the Supreme Court that a categorical assertion by the landlord in a legal notice if not replied to and controverted, can be treated as an admission by a tenant.
66) In a Division Bench proceedings of this court reported in Metropolis Travels & Resorts Vs. Sumit Kalra 98 (2002) DLT 573 (DB), no adverse inference was drawn Suit (Ex-parte) "Decreed" Page 14 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh against the respondent for failure to reply the legal notice on consideration of the facts and circumstances of the case. Reference was made to proceedings reported in Kalu Ram Vs. Sita Ram 1980 RLR (note) 44 wherein it had been observed that service of notice being admitted without reservation and that having not been replied, in that eventuality adverse inference should be drawn.
xxxxx
16. In view of the above judgments of Hon'ble High Court of Delhi, plaintiff has been successful in showing on record that non-reply of notice of the plaintiff by the defendant calls for drawing of presumption as to correctness of the facts contained therein. The plaintiff has succeeded in establishing on record that he has good case in its favour whereas the defendant has not been able to show any plausible defence in defending the present suit. The conduct of the defendant is also blameworthy.
17. As regards the quantum of interest, in view of the nature of transaction between the parties being commercial in nature, interest @ 11.8% p.a. would meet the ends of justice.
Relief
18. (i) In view of the above, a decree in the sum of Rs.9,51,050.35 (Rupees nine lacs fifty one thousand fifty and Paise thirty five only) along with interest @ 11.8% per annum from filing of the present case till Suit (Ex-parte) "Decreed" Page 15 of 16 CS (Comm) 523/2024 Bank of Baroda Vs. Mukesh realization thereof is passed in favour of plaintiff and against the defendant.
(ii) Plaintiff is entitled to costs of the suit. Plaintiff is further entitled to counsel's fee which is quantified as Rs.22,000/-.
19. Decree Sheet be drawn accordingly, subject to payment of requisite court fees.
20. File be consigned to Record Room after completion of necessary formalities. VINOD Digitally signed by Dictated & Announced in the YADAV VINOD YADAV (Vinod Yadav) open Court on 26.08.2025 District Judge (Commercial Court)-02 North-West/Rohini Courts Suit (Ex-parte) "Decreed" Page 16 of 16