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[Cites 5, Cited by 0]

Delhi District Court

And Having Its Branch Office At vs Sh. Mukesh Mahajan on 13 March, 2020

                    ICICI Bank Ltd. V. Mukesh Mahajan


        IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
             TIS HAZARI COURTS, DELHI.


SUIT NO. :­ 357/2017
UNIQUE CASE ID NO. :­ 2396/2017


IN THE MATTER OF :­
      ICICI Bank Limited
      Having its Registered office
      At Landmark, Race Course Circle,
      Vadodara - 390 007.

      And Having its Branch Office at:
      2nd Floor, Videocon Tower,
      Block - E1, Jhandewalan Extn.,
      New Delhi.                                        ....Plaintiff

                               VERSUS

      Sh. Mukesh Mahajan
      S/o Sh. Satpal Mahajan
      C­61, Shivaji Park,
      West Punjabi Bagh,
      New Delhi­110026.                                 ....Defendant

SUIT FOR RECOVERY OF RS.8,45,653.40/­ (RUPEES
EIGHT LAKHS FORTY FIVE THOUSAND SIX HUNDRED
FIFTY THREE AND FORTY PAISE ONLY)


Suit No. 357/2017                                        Page 1 of 24
                     ICICI Bank Ltd. V. Mukesh Mahajan


Date of institution of the Suit                  : 05/07/2017
Date on which Judgment was reserved : 05/03/2019
Date of Judgment                                 : 13/03/2020


                      ::­ J U D G M E N T ­::
            By way of present judgment, this court shall conscien­
tiously adjudicate upon suit for recovery of Rs. 8,45,653.40/­ (Ru­
pees Eight Lakhs Forty Five Thousand Six Hundred Fifty Three And
Forty Paise Only) filed by the plaintiff against the defendant.
CASE OF THE PLAINTIFF AS PER PLAINT
1.

Brief facts necessary for just adjudication of the present suit, as stated in the plaint, are that the plaintiff is a Company in­ corporated under the Companies Act, 1956 and a banking company within the meaning of Banking Regulation Act, 1949 and having its Registered Office and Branch Office at the aforesaid addresses. The operations of plaintiff are subject to Reserve Bank of India's guidelines and regulations. The bank is inter­alia engaged in the banking business, financing apart from other portfolios.

2. Sh. Mohit Grover is the Authorized Representative of the plaintiff, who has been duly authorized by way of Power of At­ torney and is fully conversant with the facts of the case. He is fully authorized and empowered by the plaintiff to file, sign, Suit No. 357/2017 Page 2 of 24 ICICI Bank Ltd. V. Mukesh Mahajan verify and institute the present suit and follow up the legal proceedings for and on behalf of the plaintiff.

3. The defendant has approached the plaintiff from time to time with the request to grant them credit/ loan facilities against the hypothecation of below mentioned vehicles. The defen­ dant represented that he is finally sound and assured that he shall be making regular payments of loan in installments. The defendant provided all documents to show his bona­fide to the plaintiff for the same. The plaintiff, keeping in view the request made by the defendant and after completion of neces­ sary formalities, sanctioned and disbursed total loans amounting to Rs.8,45,653.40/­ in favour of the defendant against the hypothecation of the below mentioned vehicles in terms of Credit Facility Applications/ Agreements, deeds of hypothecation and irrevocable power of attorneys executed by the defendant in favour of the plaintiff containing terms and conditions for said facilities, the details of which are given as under:­ Account No. Agreement Details of Loan Date Hypothecated Amount Vehicles (Rs.) LADEL00027203762 24.10.2013 I 20/MAGNA 1.2 L, 4,42,000 Bearing Registration No.DL4CBA0260 LADEL00027314741 27.12.2013 GRAND I 10/SPORTZ 4,93,000 1.1 DSL M, Bearing Registration No.DL4CBA1178 Suit No. 357/2017 Page 3 of 24 ICICI Bank Ltd. V. Mukesh Mahajan SPDEL00031716618 02.02.2015 I 20/ MAGNA 1.2 L, 1,92,200 Bearing Registration No.DL4CBA0260 SPDEL00031716617 02.02.2015 GRAND I 10/SPORTZ 1,90,600 1.1 DSL M, Bearing Registration No. DL4CBA1178 LUDEL00032877101 24.06.2015 ETIOS / LIVA KC, 2,01,500 Bearing Registration No. DL4CNA5537 TOTAL 15,19,300 The loan of Rs.4,42,000/­ bearing Account no. LADEL00027203762 was disbursed on 30.10.2013 and the same is repayable in 60 equated monthly installments of Rs.9,610/­ each starting from 15.11.2013 to 15.10.2018. The said vehicle I 20/ Magna 1.2 L, bearing Registration No.DL4CBA0260 is hypothecated by the Defendant in favour of the plaintiff as security towards the repayment of loan availed the defendant from the plaintiff.

The loan of Rs.4,93,000/­ bearing Account no. LADEL00027314741 was disbursed on 28.12.2013 and the same is repayable in 60 equated monthly installments of Rs.10,594/­ each starting from 01.02.2014 to 01.01.2019. The said vehicle make GRAND I 10/SPORTZ 1.1 DSL M, bearing Registration No.DL4CBA1178 is hypothecated by the Defendant in favour of the plaintiff as security towards the repayment of loan availed the de­ fendant from the plaintiff.

Suit No. 357/2017 Page 4 of 24

ICICI Bank Ltd. V. Mukesh Mahajan The loan of Rs.1,92,200/­ bearing Account no. SPDEL00031716618 was disbursed on 05.02.2015 and the same is repayable in 36 equated monthly installments of Rs.6,851/­ each starting from 01.03.2015 to 01.02.2018. The said vehicle make I 20/ MAGNA 1.2 L bearing Registration No.DL4CBA0260 is hypothe­ cated by the Defendant in favour of the plaintiff as security towards the repayment of loan availed the defendant from the plaintiff.

The loan of Rs.1,90,600/­ bearing Account no. SPDEL00031716617 was disbursed on 05.02.2015 and the same is repayable in 36 equated monthly installments of Rs.6,794/­ each starting from 01.03.2015 to 01.02.2018. The said vehicle make GRAND I 10/SPORTZ 1.1 DSL M, bearing Registration No.DL4CBA1178 is hypothecated by the Defendant in favour of the plaintiff as security towards the repayment of loan availed the de­ fendant from the plaintiff.

The loan of Rs.2,01,500/­ bearing Account no. LUDEL00032877101 was disbursed on 30.06.2015 and the same is repayable in 36 equated monthly installments of Rs.7,035/­ each starting from 01.08.2015 to 01.07.2018. The said vehicle make ETIOS/ LIVA KC, bearing Registration No.DL4CNA5537 is hypothe­ cated by the Defendant in favour of the plaintiff as security towards the repayment of loan availed the defendant from the plaintiff.

There were number of obligations on the defendant as per the loan agreements/ credit facility application forms and the defendant agreed and undertook to comply with the same and as­ Suit No. 357/2017 Page 5 of 24 ICICI Bank Ltd. V. Mukesh Mahajan sured that he would discharge his liability towards the plaintiff bank without any default. Contrary to the assurances and under­ taking, the defendant failed to discharge his liability and defaulted in making the regular equated monthly installments of the aforesaid loans. The defendant had been extremely irregular in making the payment of equated monthly installments to the plaintiff bank.

As per statement of account 08.03.2017 maintained by the plaintiff bank in the ordinary course of its business activities in respect of loan account no. LADEL00027203762, the defendant became irregular in paying the equated monthly installments from 16.09.2016 and the defendant has paid only 36 equated monthly installments to the plaintiff bank, out of 40 equated monthly installments, hence, he is in default of 4 equated monthly install­ ments.

As per statement of account 08.03.2017 maintained by the plaintiff bank in the ordinary course of its business activities in respect of loan account no. LADEL00027314741, the defendant became irregular in paying the equated monthly installments from 03.10.2016 and the defendant paid only 34 equated monthly in­ stallments to the plaintiff bank, out of 38 equated monthly install­ ments, hence, he is in default of 4 equated monthly installments.

As per statement of account 30.03.2017 maintained by the plaintiff bank in the ordinary course of its business activities in respect of loan account no. SPDEL00031716618, the defendant became irregular in paying the equated monthly installments from Suit No. 357/2017 Page 6 of 24 ICICI Bank Ltd. V. Mukesh Mahajan 03.10.2016 and the defendant paid only 20 equated monthly in­ stallments to the plaintiff bank, out of 25 equated monthly install­ ments, hence, he is in default of 5 equated monthly installments.

As per statement of account 30.03.2017 maintained by the plaintiff bank in the ordinary course of its business activities in respect of loan account no. LUDEL00032877101, the defendant became irregular in paying the equated monthly installments from 01.10.2015 and the defendant paid only 14 equated monthly in­ stallments to the plaintiff bank, out of 20 equated monthly install­ ments, hence, he is in default of 6 equated monthly installments.

The plaintiff bank tried its level best to recover the amount due but the defendant evaded paying the same. The plain­ tiff bank looking to the indifferent attitude of the defendant in not repaying the installments was compelled to issue a notice of de­ mand dated 14/01/2017 to the defendant recalling/ foreclosing the entire loan agreements. In spite of the receipt of the notice, the de­ fendant failed to make the payment of the termination amount, as demanded by the plaintiff bank in notice. The defendant is liable to pay total sum Rs.8,45,653.40/­ after deduction of prepayment charges to the plaintiff, the details of which are as under:­ Account No. Statement Amount Pre­ Amount after Date (Rs.) payment deduction of Charges prepayment charges LADEL00027203762 08.03.2017 228846.79 11695.79 217151 LADEL00027314741 30.03.2017 275301.50 14115.50 261186 Suit No. 357/2017 Page 7 of 24 ICICI Bank Ltd. V. Mukesh Mahajan SPDEL00031716618 30.03.2017 114044.65 5587.51 108457.14 SPDEL00031716617 30.03.2017 114689.24 5558.24 109131 LUDEL00032877101 30.03.2017 157431.55 7703.29 149728.26 TOTAL 8,45,653.40 The defendant has failed to pay the aforesaid outstand­ ing amount of Rs.8,45,653.40/­ to the plaintiff bank, hence, in terms of the loan agreement, the defendant is further liable to pay interest @ 24% p.a. on the aforesaid amount from the filing of the suit till realization. Since the defendant is not repaying the afore­ said amount to the plaintiff bank. Hence, the plaintiff has filed the present suit against the defendant.

EX­PARTE PROCEEDINGS Summons for settlement of issues were issued to the de­ fendant. Despite service of summons by way of ordinary process, the defendant has failed to appear in the court. On 14/10/2019, none has appeared on behalf of the defendant and defendant was proceeded ex­parte vide order dated 14/10/2019. EVIDENCE OF THE PLAINTIFF The plaintiff, in order to prove its case, has led plaintiff evidence and got examined its AR Sh. Mohit Grover as PW­1. PW­1 has filed his evidence by way of affidavit, wherein, he reiterated and reaffirmed the contents of the plaint. The PW­1 in his testimony has relied upon the following documents:­

1. Photocopy of the Power of Attorney is Ex.PW1/1 (OSR - 4 Suit No. 357/2017 Page 8 of 24 ICICI Bank Ltd. V. Mukesh Mahajan pages).

2. Preliminary credit facility application form of defendants of loan LADEL00027203762 is Ex.PW1/2 (6 pages).

3. Credit Facility Application Form alongwith terms and conditions of the loan LADEL00027203762 is Ex.PW1/3 (11 pages).

4. Deed of Hypothecation of loan LADEL00027203762 is Ex.PW1/4 (6 pages).

5. Irrevocable Power of Attorney of loan LADEL00027203762 is Ex.PW1/5 (3 pages).

6 The disbursement memo of loan LADEL00027203762 is Ex.PW1/6 (2 pages).

7. The statement of accounts of loan LADEL00027203762 is Ex.PW1/7 (colly) (7 pages).

8. Certificate under section 2A of Banker's Book of Evidence Act, 1891 in support of statement of accounts of loan LADEL00027203762 is Ex.PW1/8.

9. Certificate under section 65­B of Indian Evidence Act in support of statement of accounts of loan LADEL00027203762 is Ex.PW1/9 (2 pages).

10. The copy of legal notice dt. 10.01.2017 of loan LADEL00027203762 is Ex. PW1/10 and its postal receipt marked as Mark X.

11. Preliminary credit facility application form of defendants of loan LADEL00027314741 is Ex.PW1/11 (6 pages).

Suit No. 357/2017 Page 9 of 24

ICICI Bank Ltd. V. Mukesh Mahajan

12. Credit Facility Application Form alongwith terms and conditions of the loan LADEL00027314741 is Ex.PW1/12 (11 pages).

13. Deed of Hypothecation of loan LADEL00027314741 is Ex.PW1/13 (6 pages).

14. Irrevocable Power of Attorney of loan LADEL00027314741 is Ex.PW1/14 (3 pages).

15. The disbursement memo of loan LADEL00027314741 is Ex.PW1/15 (2 pages).

16. The statement of accounts of loan LADEL00027314741 is Ex.PW1/16 (Colly.) (7 pages).

17. Certificate under section 2A of Banker's Book of Evidence Act, 1891 in support of statement of accounts of loan LADEL00027314741 is Ex.PW1/17.

18. Certificate under section 65­B of Indian Evidence Act in support of statement of accounts of loan LADEL00027314741 is Ex.PW1/18 (2 pages).

19. The copy of legal notice dt. 10.01.2017 of loan LADEL00027314741 is Ex. PW1/19 and its postal receipt marked as Mark Y.

20. Preliminary credit facility application form of defendants of loan SPDEL00031716618 is Ex.PW1/20 (4 pages).

21. Credit Facility Application Form alongwith terms and conditions of the loan SPDEL00031716618 is Ex.PW1/21 (11 pages).

22. Deed of Hypothecation of loan SPDEL00031716618 is Suit No. 357/2017 Page 10 of 24 ICICI Bank Ltd. V. Mukesh Mahajan Ex.PW1/22 (6 pages).

23. Irrevocable Power of Attorney of loan SPDEL00031716618 is Ex.PW1/23 (3 pages).

24. The disbursement memo of loan SPDEL00031716618 is Ex.PW1/24 (2 pages).

25. The statement of accounts of loan SPDEL00031716618 is Ex.PW1/25 (Colly.) (6 pages).

26. Certificate under section 65­B of Indian Evidence Act in support of statement of accounts of loan SPDEL00031716618 is Ex.PW1/26 (2 pages).

27. Certificate under section 2A of Banker's Book of Evidence Act, 1891 in support of statement of accounts of loan SPDEL00031716618 is Ex.PW1/27.

28. The copy of legal notice dt. 10.01.2017 of loan SPDEL00031716618 is Ex.PW1/28 and its postal receipt marked as Mark Z.

29. Preliminary credit facility application form of defendants of loan SPDEL00031716617 is Ex.PW1/29 (4 pages).

30. Credit Facility Application Form alongwith terms and conditions of the loan SPDEL00031716617 is Ex.PW1/30 (11 pages).

31. Deed of Hypothecation of loan SPDEL00031716617 is Ex.PW1/31 (6 pages).

32. Irrevocable Power of Attorney of loan SPDEL00031716617 is Ex.PW1/32 (3 pages).

Suit No. 357/2017 Page 11 of 24

ICICI Bank Ltd. V. Mukesh Mahajan

33. The statement of accounts of loan SPDEL00031716617 is Ex.PW1/33 (Colly.) (6 pages).

34. Certificate under section 65­B of Indian Evidence Act in support of statement of accounts of loan SPDEL00031716617 is Ex.PW1/34 (2 pages).

35. Certificate under section 2A of Banker's Book of Evidence Act, 1891 in support of statement of accounts of loan SPDEL00031716617 is Ex.PW1/35.

36. The copy of legal notice dt. 10.01.2017 of loan SPDEL00031716617 is Ex.PW1/36 and its postal receipt marked as Mark A.

37. Preliminary credit facility application form of defendants of loan LUDEL00032877101 is Ex.PW1/37 (4 pages).

38. Credit Facility Application Form alongwith terms and conditions of the loan LUDEL00032877101 is Ex.PW1/38 (11 pages).

39. Deed of Hypothecation of loan LUDEL00032877101 is Ex.PW1/39 (6 pages).

40. Irrevocable Power of Attorney of loan LUDEL00032877101 is Ex.PW1/40 (3 pages).

41. The disbursement memo of loan LUDEL00032877101 is Ex.PW1/41 (2 pages).

42. The statement of accounts of loan LUDEL00032877101 is Ex.PW1/42 (Colly.) (7 pages).

43. Certificate under section 65­B of Indian Evidence Act in support of statement of accounts of loan Suit No. 357/2017 Page 12 of 24 ICICI Bank Ltd. V. Mukesh Mahajan LUDEL00032877101 is Ex.PW1/43 (2 pages).

44. Certificate under section 2A of Banker's Book of Evidence Act, 1891 in support of statement of accounts of loan LUDEL00032877101 is Ex.PW1/44.

45. The copy of legal notice dt. 10.01.2017 of loan LUDEL00032877101 is Ex.PW1/45 and its postal receipt marked as Mark B. FINDINGS & CONCLUSIONS OF THE COURT This Court heard the ex­parte final arguments advanced by Ld. counsel for the plaintiff. I have perused the material avail­ able on record. The plaintiff has filed the present suit for recovery of the suit amount against the defendant. In the present case, the de­ fendant was proceeded ex­parte, despite this fact, the plaintiff has to prove its case on merits and satisfy the court that the plaintiff is entitled for the recovery of the suit amount from the defendant.

The break­up of the amount in respect of loan no. LADEL00027203762 has been given in Ex.PW­1/7 and the same is as under:­ Principal Outstanding - Rs.2,03,405.00 Late payment penalty - Rs.2,634.00 Cheque bouncing charges and other charges - Rs.2,875.00 Interest for the month - Rs.1,209.00 Prepayment charges @ 5.75% at O/S principal - Rs.11,695.79 Interest in pending installment - Rs.7,028.00 Total - Rs.2,28,846.79 Suit No. 357/2017 Page 13 of 24 ICICI Bank Ltd. V. Mukesh Mahajan The plaintiff in the present plaint has claimed a sum of Rs.2,875/­ as a cheque bouncing charges but as per credit facility application form Ex.PW­1/3, there is no mention, how the install­ ments of the loan were required to be repaid e.g. through ECS or through Direct Debit Mode or by cheque. Hence, plaintiff is not en­ titled to claim Rs.2,875/­ towards the cheque bouncing charges.

The plaintiff has also claimed a sum of Rs.11,695.79p towards the pre­payment charges at the outstanding principal. In the credit facility application form Ex.PW­1/3, no pre­payment charges have been mentioned. Moreover, pre­payment charges are recoverable only when borrower himself is coming forward to make the entire outstanding amount prior to completion of period, for which the loan was advanced, whereas, in the present case, it is the plaintiff, who has recalled the loan as defendant defaulted in mak­ ing regular installment. In these circumstances, plaintiff cannot be held to be entitled to pre­payment charges.

The plaintiff has also claimed amount of Rs.7,028/­ to­ wards interest on the pending installment. Credit facility applica­ tion form Ex.PW­1/3 reflects the agreed rate of interest at 11% p.a., but this interest has already been calculated in the installments, hence, grant of separate interest on the defaulted amount would re­ sult in charging interest twice, therefore, plaintiff cannot claim in­ terest on the pending installments and consequently, same cannot be awarded.

Suit No. 357/2017 Page 14 of 24

ICICI Bank Ltd. V. Mukesh Mahajan After deducting the said amounts, the amount of Rs.2,07,248/­ remains due and payable in terms of Ex.PW­1/7 by the defendant to the plaintiff towards the loan account no. LADEL00027203762 as on 08/03/2017.

The break­up of the amount in respect of loan no. LADEL00027314741 has been given in Ex.PW­1/16 and the same is as under:­ Principal Outstanding - Rs.2,45,487.00 Late payment penalty - Rs.3,107.00 Cheque bouncing charges and other charges - Rs.4,025.00 Interest for the month - Rs.431.00 Prepayment charges @ 5.75% at O/S principal - Rs.14,115.50 Interest in pending installment - Rs.8,136.00 Total - Rs.2,75,301.50 The plaintiff in the present plaint has claimed a sum of Rs.4,025/­ as a cheque bouncing charges but as per credit facility application form Ex.PW­1/12, there is no mention, how the install­ ments of the loan were required to be repaid e.g. through ECS or through Direct Debit Mode or by cheque. Hence, plaintiff is not en­ titled to claim Rs.4,025/­ towards the cheque bouncing charges.

The plaintiff has also claimed a sum of Rs.14,115.50P towards the pre­payment charges at the outstanding principal. In the credit facility application form Ex.PW­1/12, no pre­payment charges have been mentioned. Moreover, pre­payment charges are recoverable only when borrower himself is coming forward to make the entire outstanding amount prior to completion of period for Suit No. 357/2017 Page 15 of 24 ICICI Bank Ltd. V. Mukesh Mahajan which the loan was advanced whereas, in the present case it is the plaintiff, who has recalled the loan as defendant defaulted in mak­ ing regular installment. In these circumstances, plaintiff cannot be held to be entitled to pre­payment charges.

The plaintiff has also claimed amount of Rs.8,136/­ to­ wards interest on the pending installment. Credit facility applica­ tion form Ex.PW­1/12 reflects the agreed rate of interest at 10.48% p.a. but this interest has already been calculated in the install­ ments, hence, grant of separate interest on the defaulted amount would result in charging interest twice, therefore, plaintiff cannot claim interest on the pending installments and consequently, same cannot be awarded.

After deducting the said amounts, the amount of Rs.2,49,025/­ remains due and payable in terms of Ex.PW­1/16 by the defendant to the plaintiff towards the loan account no. LADEL00027314741 as on 08/03/2017.

The break­up of the amount in respect of loan no. SPDEL00031716618 has been given in Ex.PW­1/25 and the same is as under:­ Principal Outstanding - Rs.97,174.14 Late payment penalty - Rs.2,151.00 Cheque bouncing charges and other charges - Rs.3,450.00 Interest for the month - Rs.949.00 Prepayment charges @ 5.75% at O/S principal - Rs.5,587.51 Interest in pending installment - Rs.4,733.00 Total - Rs.1,14,044.65 Suit No. 357/2017 Page 16 of 24 ICICI Bank Ltd. V. Mukesh Mahajan The plaintiff in the present plaint has claimed a sum of Rs.3,450/­ as a cheque bouncing charges but as per credit facility application form Ex.PW­1/21, the loan was to be repaid by direct debit from the applicant's bank account with ICICI Bank Ltd. (Di­ rect Debit Method). Hence, plaintiff is not entitled to claim Rs.3,450/­ towards the cheque bouncing charges.

The plaintiff has also claimed a sum of Rs.5,587.51p towards the pre­payment charges at the outstanding principal. In the credit facility application form Ex.PW­1/21, no pre­payment charges have been mentioned. Moreover, pre­payment charges are recoverable only when borrower himself is coming forward to make the entire outstanding amount prior to completion of period for which the loan was advanced whereas, in the present case it is the plaintiff, who has recalled the loan as defendant defaulted in mak­ ing regular installment. In these circumstances, plaintiff cannot be held to be entitled to pre­payment charges.

The plaintiff has also claimed amount of Rs.4,733/­ to­ wards interest on the pending installment. Credit facility applica­ tion form Ex.PW­1/21 reflects the agreed rate of interest at 16.98% p.a. but this interest has already been calculated in the install­ ments, hence, grant of separate interest on the defaulted amount would result in charging interest twice, therefore, plaintiff cannot claim interest on the pending installments and consequently, same cannot be awarded.

Suit No. 357/2017 Page 17 of 24

ICICI Bank Ltd. V. Mukesh Mahajan After deducting the said amounts, the amount of Rs.1,00,274.14/­ remains due and payable in terms of Ex.PW­ 1/25 by the defendant to the plaintiff towards the loan account no. SPDEL00031716618 as on 30/03/2017.

The break­up of the amount in respect of loan no. SPDEL00031716617 has been given in Ex.PW­1/33 and the same is as under:­ Principal Outstanding - Rs.96,665.00 Late payment penalty - Rs.2,219.00 Cheque bouncing charges and other charges - Rs.3,450.00 Interest for the month - Rs.941.00 Prepayment charges @ 5.75% at O/S principal - Rs.5,558.24 Interest in pending installment - Rs.5,856.00 Total - Rs.1,14,689.24 The plaintiff in the present plaint has claimed a sum of Rs.3,450/­ as a cheque bouncing charges but as per credit facility application form Ex.PW­1/30, the loan was to be repaid by direct debit from the applicant's bank account with ICICI Bank Ltd. (Di­ rect Debit Method). Hence, plaintiff is not entitled to claim Rs.3,450/­ towards the cheque bouncing charges.

The plaintiff has also claimed a sum of Rs.5,558.24P towards the pre­payment charges at the outstanding principal. In the credit facility application form Ex.PW­1/30, no pre­payment charges have been mentioned. Moreover, pre­payment charges are recoverable only when borrower himself is coming forward to make the entire outstanding amount prior to completion of period for Suit No. 357/2017 Page 18 of 24 ICICI Bank Ltd. V. Mukesh Mahajan which the loan was advanced whereas, in the present case it is the plaintiff, who has recalled the loan as defendant defaulted in mak­ ing regular installment. In these circumstances, plaintiff cannot be held to be entitled to pre­payment charges.

The plaintiff has also claimed amount of Rs.5,856/­ to­ wards interest on the pending installment. Credit facility applica­ tion form Ex.PW­1/30 reflects the agreed rate of interest at 16.98% p.a. but this interest has already been calculated in the install­ ments hence grant of separate interest on the defaulted amount would result in charging interest twice, therefore, plaintiff cannot claim interest on the pending installments and consequently, same cannot be awarded.

After deducting the said amounts, the amount of Rs.99,825/­ remains due and payable in terms of Ex.PW­1/33 by the defendant to the plaintiff towards the loan account no. SPDEL00031716617 as on 30/03/2017.

The break­up of the amount in respect of loan no. LUDEL00032877101 has been given in Ex.PW­1/42 and the same is as under:­ Principal Outstanding - Rs.1,33,970.25 Late payment penalty - Rs.2,974.00 Cheque bouncing charges and other charges - Rs.2,181.00 Interest for the month - Rs.1,262.77 Prepayment charges @ 5.75% at O/S principal - Rs.7,703.29 Interest in pending installment - Rs.9,340.24 Total - Rs.1,57,431.55 Suit No. 357/2017 Page 19 of 24 ICICI Bank Ltd. V. Mukesh Mahajan Plaintiff in the present plaint has claimed a sum of Rs.2,181/­ as a cheque bouncing charges but as per credit facility application form Ex.PW­1/38, the loan was to be repaid by the Electronic Clearing System (Debit Clearing), as notified by the RBI ("ECS method"). Hence, plaintiff is not entitled to claim Rs.2,181/­ towards the cheque bouncing charges.

The plaintiff has also claimed a sum of Rs.7,703.29P towards the pre­payment charges at the outstanding principal. In the credit facility application form Ex.PW­1/38, no pre­payment charges have been mentioned. Moreover, pre­payment charges are recoverable only when borrower himself is coming forward to make the entire outstanding amount prior to completion of period for which the loan was advanced whereas, in the present case it is the plaintiff, who has recalled the loan as defendant defaulted in mak­ ing regular installment. In these circumstances, plaintiff cannot be held to be entitled to pre­payment charges.

The plaintiff has also claimed amount of Rs.9,340.24/­ towards interest on the pending installment. Credit facility applica­ tion form Ex.PW­1/38 reflects the agreed rate of interest at 15.50% p.a. but this interest has already been calculated in the install­ ments, hence, grant of separate interest on the defaulted amount would result in charging interest twice, therefore, plaintiff cannot claim interest on the pending installments and consequently, same cannot be awarded.

Suit No. 357/2017 Page 20 of 24

ICICI Bank Ltd. V. Mukesh Mahajan After deducting the said amounts, the amount of Rs.1,38,207.02/­ remains due and payable in terms of Ex.PW­ 1/38 by the defendant to the plaintiff towards the loan account no. LUDEL00032877101 as on 30/03/2017.

In the present case, the defendant has not filed the Writ­ ten Statement to contest the present suit of plaintiff. The defendant has also not cross­examined PW­1 to contradict or disprove the case of plaintiff. The defendant has chosen not to appear and when the case of the plaintiff has gone un­challenged, uncontroverted, un­rebutted and duly corroborated by the documents, this Court has no reason to disbelieve the version of the plaintiff qua the other claims, as mentioned hereinabove.

The present suit of the plaintiff is well within the period of limitation. In the present case, the plaintiff/PW­1 has proved on record the documents, as mentioned in his testimony, showing the liability of the defendant to pay the aforesaid amount against the respective loan accounts alongwith interest to the plaintiff to be de­ termined by the Court.

Section 34 CPC postulates and envisages the pendent­elite interest at any rate not exceeding 6% and future in­ terest at any rate not exceeding the rate at which nationalized banks advanced loan. Keeping in mind the mandate of the said proposition, interest of justice would be served if the plaintiff is granted the interest in the following manner:­ Suit No. 357/2017 Page 21 of 24 ICICI Bank Ltd. V. Mukesh Mahajan A. simple rate of interest @ 6% per annum on the amount of Rs.2,07,248/­ from 09/03/2017 till decision of the suit in re­ spect of loan no. LADEL00027203762, B. simple rate of interest @ 6% per annum on the amount of Rs.2,49,025/­ from 09/03/2017 till decision of the suit in re­ spect of loan no.LADEL00027314741, C. simple rate of interest @ 6% per annum on the amount of Rs.1,00,274.14/­ from 31/03/2017 till decision of the suit in respect of loan no. SPDEL00031716618.

D. simple rate of interest @ 6% per annum on the amount of Rs.99,825/­ from 31/03/2017 till decision of the suit in re­ spect of loan no. SPDEL00031716617 and E. simple rate of interest @ 6% per annum on the amount of Rs.1,38,207.02/­ from 31/03/2017 till decision of the suit in respect of loan no. LUDEL00032877101.

The plaintiff is also granted future rate of interest @ 9% per annum till its realization on the aforesaid amounts. The prior interest is already included in the Ex.PW­1/7, Ex.PW­1/16, Ex.PW­ 1/25, Ex.PW­1/33 and Ex.PW­1/42.

Applying priori and posteriori reasonings, this court is held that plaintiff has been able to prove his case against the defen­ dant except the demand of mesne profits.

RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following Suit No. 357/2017 Page 22 of 24 ICICI Bank Ltd. V. Mukesh Mahajan FINAL ORDER

(a) a decree is passed in favour of the plaintiff and against the de­ fendant in the following manner:­

1. a decree of an amount of Rs.2,07,248/­ alongwith sim­ ple rate of interest @ 6% per annum from 09/03/2017 till decision of the suit in respect of loan no. LADEL00027203762 and future interest @ 9% p.a. till its realization.

2. a decree of an amount of Rs.2,49,025/­ alongwith sim­ ple rate of interest @ 6% per annum from 09/03/2017 till decision of the suit in respect of loan no.LADEL00027314741 and future interest @ 9% p.a. till its realization.

3. a decree of an amount of Rs.1,00,274.14/­ along with simple rate of interest @ 6% per annum from 31/03/2017 till decision of the suit in respect of loan no. SPDEL00031716618 and future interest @ 9% p.a. till its realization.

4. a decree of an amount of Rs.99,825/­ alongwith simple rate of interest @ 6% per annum from 31/03/2017 till decision of the suit in respect of loan no. SPDEL00031716617 and future interest @ 9% p.a. till its realization.

Suit No. 357/2017 Page 23 of 24

ICICI Bank Ltd. V. Mukesh Mahajan

5. a decree of an amount of Rs.1,38,207.02/­ alongwith simple rate of interest @ 6% per annum from 31/03/2017 till decision of the suit in respect of loan no.LUDEL00032877101 and future interest @ 9% p.a. till its realization.

(b) The cost of the suit is also awarded in favour of the plaintiff and against the defendant.

Decree­sheet be prepared accordingly.

File be consigned to Record Room after due compliance. Announced in the open court on this 13th Day of March, 2020.

(ARUN SUKHIJA) ADJ­07 (Central) Tis Hazari Courts, Delhi Suit No. 357/2017 Page 24 of 24