Delhi District Court
Vijaya Bank vs M/S Micsun Tools (India) Pvt. Ltd on 9 July, 2012
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL:
SENIOR CIVIL JUDGECUMRC (EAST):
KKD COURTS: DELHI
Suit No 327/08
Unique Case Identification No: 02402C0379082008
IN THE MATTER OF :
VIJAYA BANK,
A body corporate constituted under
Banking Companies (Acquisition and
Transfer of Undertaking) Act, 1980
having its registered office at :
41/2, M. G. Road,
Bangalore, Karnataka.
And a branch office at :
Vigyan Vihar,
109, Shreshtha Vihar,
Delhi 110092. .... Plaintiff
Versus
1.M/S MICSUN TOOLS (INDIA) PVT. LTD., 488/11, Dilshad Garden, Delhi 110032
2. JASVINDER SINGH, S/o Sh. Shankar Singh,
3. SMT. ANITA SINGH, W/o Sh. Jasvinder Singh, Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 1/16 Both R/o A76, Vivek Vihar, Phase II, Delhi 110095.
4. SURENDER SINGH, S/o Sh. Gurdev Singh, R/o H. No. 30, Naveen Shahdara, Delhi 110032 ... Defendants A. Date of Institution of Suit : 21/05/2008 B. Reserved for Judgment : 09/07/2012 C. Date of Judgment : 09/07/2012 D. Final Order : SUIT DECREED.
SUIT UNDER ORDER XXXVII OF C.P.C., 1908 FOR RECOVERY OF RS.98,525/ (RUPEES NINETY EIGHT THOUSAND, FIVE HUNDRED AND TWENTY FIVE ONLY).
EXPARTE J U D G M E N T
1. This suit has been filed under the provision of order XXXVII CPC. However vide order dated 9/03/2011 on the basis of statement made by ld. counsel for plaintiff to that effect, this suit was treated as Ordinary Money Recovery Suit.
2. PRAYER:
Plaintiff has prayed for a decree under the provisions of Order XXXVII of Code of Civil Procedure, 1908 for a sum of Rs.98,525/ Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 2/16 (Rupees Ninety Eight Thousand, Five Hundred and Twenty Five only) which includes interest till 06.05.2008 together with costs of the suit and pendentelite and future interest at the rate of 19.50% p.a. (i.e. 17.50% interest agreed + 2% p.a. penal interest) from the date of institution of the suit till actual realisation of the amount in favour of plaintiff bank and against the defendants.
2. CASE OF PLAINTIFF :
In brief case of plaintiff Bank is that Shri B. Rajagopal Rai is the Chief Manager of Vigyan Vihar branch of plaintiff bank at 109, Shreshtha Vihar, Delhi 110092, and is its Principal Officer. As alleged, he is also duly constituted attorney of plaintiff Bank and he is competent and authorised to sign and verify the plaint and to institute the present suit and, thus, he has signed the plaint.
As per plaintiff, defendant no.1 is a Company incorporated under the Indian Companies Act and defendant nos. 2 and 3 are its Directors. As alleged, defendant nos. 2 and 3 approached the plaintiff bank for grant of loan Facility and considering the necessity and viability of the defendant no.1, plaintiff Bank granted the defendants a Secured Loan of Rs.4,00,000/ (Rupees Four Lacks only) with interest @ of 4.36% per annum over the Vijaya Bank prima lending rate Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 3/16 which was at that time 14% per annum and as may be revised from time to time with minimum of 18.36% per annum with quarterly rests. Accordingly, on 24/03/1998 the said loan amount was allegedly credited in the account of defendant no.1 bearing No. SL98005 and the defendants no.2 and 3 agreed to repay the said loan amount in 36 (nine) equal monthly installments of Rs.15,000/ (Rupees Fifteen Thousand only) per month w.e.f April 1998. As per plaintiff at the time of availing the said Secured Loan Facility, defendant no.1 to 3 executed requisite loan documents such as Demand Promissory Note, Agreement for Hypothecation, of machinery and other movables, agreement etc. dt. 24/03/1998. As alleged, defendant no. 4 stood as Guarantor for defendant no.1 to 3 and he executed the Letter of Guarantee dated 24.03.1998 and, thus, defendants undertook to repay the loan with interest within time schedule agreed upon between them and defendants are severally and jointly liable to pay the outstanding loan amount alongwith interest.
Further case of plaintiff is that after availing the said facility, the defendant no.1 did not maintain the account regularly and also did not pay the installments of the loan according to the terms and conditions of the Agreement and was not keeping accurate records of Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 4/16 stocks and movable in his possession at the working place and, thus, was not regular in paying the installments to the plaintiff bank. Plaintiff bank so many times allegedly requested the defendants to repay the loan amount as facility availed by them but they failed to pay the same on one pretext or the other. As per plaintiff, as defendant no.1 was not making the regular payments to plaintiff bank and had committed defaults in repayment of the loan to Bank and, hence, defendant no.1 acknowledged his liability and executed the acknowledgment of liability dated 08.01.2001 whereby acknowledging the liability of Rs.2,10,762/. However, inspite of making the acknowledgment, defendant did not make the regular payments to the plaintiff bank and, thereafter, again he executed an acknowledgment of liability dated 01.04.2001 but did not make the payment regularly and so again on 30/11/2003 acknowledged the liability of Rs.1,07,754/. Thereafter also, the defendant no.1 did not make the regular payment to plaintiff bank and on 3/11/2006 he again acknowledged his liability on Rs.75,181/. However again defendant was not regular in making payment to plaintiff bank on one pretext or the other. As alleged, despite above mentioned facts, defendants did not bother to repay the amount and defaulted in terms of the Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 5/16 Agreement and are liable to pay the entire amount alongwith interest as agreed by the defendant. As alleged, an amount of Rs.98,525/ is outstanding against the defendants as on 6/05/2007 (inclusive of interest) as per the Books of Account of the plaintiff Bank and the entries made in the Bank's Books of Account maintained in the form of Electronic Data of Computer in the usual and ordinary course of his business.
Plaintiff allegedly served a legal notice dated 26.04.2008 to the defendants demanding therein the outstanding amount payable by them but inspite of service of legal notice, defendants failed to pay the outstanding amount alongwith interest to the plaintiff. Hence, this suit.
4. As already noted originally this suit was filed under the provision of Order XXXVII CPC. Hence vide order dated 26/05/2008 summons u/o. XXXVII CPC were order they issued to be served open the defendants. Vide order dated 14/11/2008 defendant no.1 and 2 stood served with summons for judgment through their employee Sh. Tej Singh & as per order dated 26/02/2009 application for leave to defend and condonation of delay was filed on behalf of defendant no.1 and 2 on 20/10/2008. Vide order dated 3/08/2010 ld. counsel for Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 6/16 plaintiff stated that he is not desirous of filing reply and want to file written submission. Vide order dated 28/05/2009 defendant no.3 & 4 stood served by way of publication in newspaper "Statesman" dt. 19/05/2009 but summons were not published with plaint. Ld. predecessor had observed that defendant no.3 & 4 can also be served by affixation on the last known address and, therefore, defendant no.3 & 4 were ordered to be served with summons u/o. XXXVII CPC through affixation at the last known address. Vide order dated 27/07/2009 defendant no.3 stood served through affixation. On 30/09/2009 ld. predecessor of this court pass the following order :
"30/09/2009 Present: None for the plaintiff.
Matter is fixed today for order. The suit has been filed u/o 37 CPC. Perusal of record shows that only the defendant no. 1 (company) was served with the summon under form 4 Appendix B CPC by the ordinary process through defendant no. 2 (director) on 21.07.08. The ordinary process for the defendant no. 3 was received back with report that she has left the address. The summon under form 4 Appendix B for defendant no. 2 on his residential address was also received back with same report. The summon to defendant no. 4 was received back with report that the address could Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 7/16 not be located.
The plaintiff moved application for summon for judgment dated 10.09.08 for defendant no. 1 &
2. The defendant no. 2 moved application for leave to defend with application u/s 5 of the Limitation Act. In the caption of the application it was mentioned as application of defendant no.1 only.
The plaintiff moved application u/o 5 Rule 20 CPC for substituted service of defendant no. 3 & 4 by publication. The application was allowed and the defendants were served by publication in "Statesman" dated 19.05.09. The plaint was not published in the newspaper and therefore the court directed for fresh service of defendant no. 3 & 4 by affixation. Defendant no.3 was served by affixation on 03.06.09. The summon for defendant no. 4 was received back without affixation with report that the address could not be located.
The facts mentioned above show that the defendant no. 2 was not served in his individual capacity with summon under form 4 Appendix B CPC. There is no appearance on behalf of defendant no. 1 after service with summon under form 4 Appendix B CPC and the plaintiff moved the application for summon for judgment without verifying about the appearance which should have been filed on behalf of defendant no. 1 in Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 8/16 pursuance of the service on 21.07.08. The service of defendant no. 3 & 4 by publication was not proper as the plaint was not published with the summon in the newspaper. Defendant no. 3 has been served by affixation on her residential address which she has already left. The defendant no. 3 & 4 are also Directors of defendant no.1 and they can be served on the address of defendant no.1.
Clarification is required. Adjourned to 24.10.09 for clarification.
Sd/ (RAJESH KUMAR SINGH) SCJ / RC (EAST)/30.09.2009"
Vide order dated 24/10/2009 ld. counsel for plaintiff had shown to the ld. predecessor of this court appearance filed by defendant no.1 and 2. Also on 24/10/2009 ld. predecessor of this court had ordered that "...........Ld. counsel for plaintiff agrees to get defendant no.3 and 4 served with summon under form 4 appendix B CPC on the address of defendant no.1. Fresh summon be issued on PF to the defendant no.3 and 4 under form 4 appendix B CPC and they be served at the address of defendant no.1. In case they do not accept the summon or they are not available or no authorized agent agrees to accept the summon, the summons be affixed.......". Vide order dated 02/02/2010 Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 9/16 defendant no.3 and 4 stood served through affixation and R.C was received back with the report of "left" the address and process sever was called for his statement. On 3/05/2010 statement process server was recorded. On 18/05/2010 ld. predecessor of this court pass the following order :
"18/05/2010 Present : Sh. K. C. Chopra, Ld. counsel for the plaintiff.
It is submitted that on account of directions passed previously vide order dated 30.09.09 and 02.02.10. Defendant no.1 had been served through usual process which is a company. Application for grant of leave to defend has been filed by defendant no.1 as well as defendant no.2 who is the director of defendant no.1. Defendant no.3 who happens to be wife of defendant no.2 is served by way of service through defendant no.2 as well as by way of publication and affixation also. No appearance has been filed on their behalf. Defendant no.4, guarantor is also stated to have been served by way of publication and affixation in terms of the direction vide order dated 02/02/10, he has been served by defendant no.1 for which he stood guarantor. I have perused the reports, in view of which is appears that plaintiff has exhausted all means possible for Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 10/16 getting the defendants served as per procedure. Defendants are deemed to have been served.
Let matter be listed for receiving the requisite appearance as well as reply to the application for leave to defend for 03/08/10.
Sd/ (NIRJA BHATIA) SCJ/RC (EAST)/18/05/2010"
None appeared for defendants on several dates particularly on 3/08/2010, 20/09/2010, 13/12/2010 and afterwards. On 13/12/2010 ld. counsel plaintiff was heard on leave to defend application of defendant no.1 and 2. Vide order dated 18/12/2010 this court had fixed the matter for consideration regarding applicability of provision of Order XXXVII CPC in the fact and circumstances on this case. On 9/03/2011 ld. counsel for plaintiff made a statement to the effect that on the instructions of plaintiff Bank suit may be treated as Ordinary Money Recovery Suit. As such on 9/03/2011 matter was adjourned to 14/11/2011 for filing of WS by defendants. But none appeared for defendants and vide order dated 5/07/2011 defendants were proceeded against as ExParte.
5. To substantiate its case of Judicial file plaintiff has examined Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 11/16 one witness namely PW1 Mr. Asim Kr. Bagchi and on 5/01/2012 ld. counsel for plaintiff submitted that no other witness is to be examined by plaintiff Bank.
6. I have heard Sh. K. C. Chopra Adv. plaintiff and gone through material available on Judicial file very carefully.
7. In the case in hand, by virtue of depositions made by PW1 Mr. Asim Kr. Bagchi, photocopy of General Power Attorney executed by plaintiff Bank in favour of Mr. B. Rajagopal Rai who has signed the present plaint has been brought/proved on record as Mark A; General Power Attorney executed in favour of PW1 Mr. Asim Kr. Bagchi as Ex. PW1/1; promissory note executed by defendant no. 2 and 3 as director or defendant no.1 as Ex. PW1/2; Agreement signed by defendant no.2 & 3 as directors of on defendant no.1 as Ex. PW1/3; Agreement signed by defendant no.2 & 3 as directors of defendant no. 1 as Ex. PW1/4; Letter written by defendant no.2 and 3 as directors of defendant no.1 to Senior Branch Manager, Vijaya Bank as Ex. PW1/5; Agreement for Hypothecation of Machinery/Vehicles/Goods and others movables as Ex. PW1/6; Letter of Guarantee executed by defendant no.2, 3 and 4 as Ex. PW1/7; Acknowledgments of liability signed by defendant no.2 & 3 as directors on defendant no.1 as Ex.
Suit No. 327/08 ANAND SWAROOP AGGARWAL
Date : 09/07/12 SCJCumRC:East, Delhi
Page No. 12/16
PW1/8 to PW1/11; Statement of Account duly certified as per Bankers' Book Evidence Act as Ex. PW1/12; Legal Notice dated 26/04/2008 as Ex. PW1/13; Postal receipts as Ex. PW1/14 (colly.) and U.P.C as Ex. PW1/15 (colly.).
Defendant no.1 & 2 in this case have filed two applications (i) an application u/s 5 of Limitation Act and u/o. XXXVII CPC for condonation of delay in filing application for granting leave to defendant and (ii) another application u/o. XXXVII Rule 3(4) CPC for granting leave to defendant. But none has been appearing in the Court on behalf of defendant no.1 & 2 to pursue these application. Applications were moved by defendant no.1 & 2 on 20/10/2008 but on none of the occasions thereafter defendant no.1 & 2/ld. counsel for defendant no.1 & 2 appeared in the Court to address arguments in this case. Also due to nonappearance on behalf of defendants, they were proceeded against as exparty on 5/07/2011 when vide order dated 09/03/2011 suit was treated as ordinary money recovery suit. Despite opportunity given, defendants have not filed their Written Statement. Also, to my mind, due to continuous absence of defendant no.1 & 2 / their counsel from the Judicial proceedings even the applications moved by defendant no.1 merits dismissal in default. Also these Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 13/16 applications can be said to have lost their significance in view of the fact that vide order dated 9/03/2011 suit was treated as ordinary money recovery suit in view of statement made by ld. counsel for plaintiff on 9/03/2011. Even otherwise merely filing of applications and particularly an application u/o. XXXVII Rule 3(4) CPC does not benefit the defendant no.1 in any manner unless and until defendants participates in the proceedings in the suit and puts their case in the crossexamination of plaintiff's witnesses and, if required, also lead their evidence to prove the stand taken by them in the leave to defend application.
In the case in hand, depositions made by PW1 Mr. Asim Kr. Bagchi finds corroboration from the documentary evidence lead on Judicial file. Even if the averments made in the leave to defend application are considered by Court, in my considered opinion, for the following reason no benefit can be given to defendant no.1 & 2 : (i) in the application for leave to defend defendant no.1 & 2 have not denied receipt of loan from plaintiff bank; (ii) there is no denial of the fact that defendant no.2, 3 and 4 signed letter of guarantee Ex. PW1/7 as guarantors for defendant no.1; (iii) undisputedly the documents on record bears signatures of the defendant no.1 & 2. Regarding the Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 14/16 defendants not signing the documents voluntarily or signing on dotted lines on the documents which were blank, defendants at no opportunity prior to filing of application for leave to defend, appear to have made any complaint to any higher authority and, thus, this stand taken by defendants does not appeal convincing to Judicial mind; (iv) defendant no.1 & 2 have not specifically pointed out as to which of the entires made in statement of account PW1/12 are not correct. Vaguely challenging the statement of account Ex. PW1/12, which is certified per Bankers Books Evidence Act, does not benefit defendants in any manner; (v) suit of plaintiff cannot be said by barred by limitation in view of acknowledgments Ex. PW1/8 to Ex. PW1/11 depositions regarding which have gone unrebutted and (vi) GPA Mark X authorizes Mr. B. Rajagopal Rai to file the suit.
Further, in view of Clause 13 of Letter of Guarantee Ex. PW1/7, acknowledgments Ex.PW1/8 to Ex.PW1/11 also binds other defendants as guarantors. In a way the case as pleaded by plaintiff can be said to have gone unchallenged/unrebutted. Entire case of plaintiff is based on documentary evidence. This Court finds no reason to disbelieve, uncontrovered, unchallenged and unrebutted depositions made by PW1 Mr. Asim Kr. Bagchi in the totality of facts and Suit No. 327/08 ANAND SWAROOP AGGARWAL Date : 09/07/12 SCJCumRC:East, Delhi Page No. 15/16 circumstances of this case. In my considered opinion, plaintiff bank has been successful in proving its case on Judicial file and, as such, suit of plaintiff bank is hereby decreed in favour of plaintiff and against the defendants, jointly and severally, for a sum of Rs.98,525/ together with costs of suit and pendentelite and future interest @ 10% p.a. from the date of filing the suit till realisation of entire decreetal amount of Rs.98,525/. Decreesheet be prepared. File be consigned to RR.
Pronounced in the open court. (Anand Swaroop Aggarwal)
on 09/07/2012 SCJ/East/KKD/Delhi
Suit No. 327/08 ANAND SWAROOP AGGARWAL
Date : 09/07/12 SCJCumRC:East, Delhi
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