Delhi District Court
M/S Icici Bank Ltd vs Jaskiran Ahluwalia D/O Taranjeet Singh on 6 June, 2015
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL03)
TIS HAZARI COURTS/ DELHI
Date of institution of the suit : 21.05.2014
Date on which order was reserved : 27.05.2015
Date of decision : 06.06.2015
Suit No. 72/2015 Unique Case ID No. 02401C0233502014
M/s ICICI BANK LTD.
Having its registered office at :
Landmark, Race Course Circle,
Vadodara390007.
Having its Branch Office at :
EBlock, Videocon Tower, Jhandewalan
Extention, New Delhi. ....Plaintiff
Versus
Jaskiran Ahluwalia D/o Taranjeet Singh
C3/11, FFloor, Janak Puri,
New Delhi110058 ....Defendant
J U D G M E N T
1. This is a suit for recovery of Rs. 6,10,595.55/ (Rs. Six Lacs Ten Thousand Five Hundred Ninety Five and Fifty Five Paise). Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 1
2. The brief resume of the facts of the case, as set out in the plaint, is that the plaintiff is a company incorporated within the provisions of the Companies Act, 1956 and is in the banking business and was subject to the guidelines and regulations passed by the Reserve Bank of India having its Branch office at Block E1, Videocon Tower, Jhandewalan Extention, New Delhi - 110005.
3. Also that the defendant had approached the plaintiff bank for grant of a vehicle loan of Rs. 8,27,000/ from the plaintiff bank for purchase of a vehicle namely 'SKODA RAPID ELE 1.6 TDI MT' bearing registration No. HR26BQ9412 and the plaintiff bank sanctioned the vehicle loan of Rs. 8,27,000/ & disbursed an amount of Rs. 8,26,550/ to the defendant vide loan agreement dated 04022012 vide loan account No. LADEL00025555953 and that the defendant agreed to repay the said loan amount in 59 equal monthly installments of Rs. 18,834/ each and executed several documents i.e. credit facility application along with terms and conditions, unattested deed of hypothecation & Irrevocable Power of Attorney in favour of the plaintiff bank and thus, he was bound with the terms and conditions of the loan agreement executed Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 2 between the parties.
4. It is stated in the plaint that the defendant has duly received an amount of Rs. 8,26,550/ on 04022012 and had paid an amount of Rs. 4,43,652/ i.e. 24 equated monthly installments and defaulted in repayment of Rs. 46,032/ i.e. 2 equated monthly installments and along with an amount of Rs. 10,712/ towards the overdue interest and other charges totaling to Rs. 56,744/ and that the plaintiff Bank was forced to send a loan recall notice 11.02.2014.
And that as per loan recall notice 11.02.2014, a sum of Rs. 68,390/ was due as an arrear, thereby the said loan was recalled and a total outstanding balance of Rs. 6,47,726.50/ became due as on 05022014, but despite the loan termination notice, the defendant neither 'cared to reply' nor have made 'any effort to repay' the outstanding amount, nor handed over the peaceful possession of the vehicle.
Thus, the present suit for recovery of a sum of Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 3 Rs. 6,10,595.55/was filed by plaintiff & after deducting the amount received, the plaintiff is praying for passing a money decree for a sum of Rs. 4,35,506.55/ along with an interest @ 12.50% per annum from filing of the suit till realization of the decreetal amount.
5. The defendant was duly served with summons of the suit by way of publication effected on 22.01.2015 in the newspaper namely "The Statesman" but despite due service, the defendant did not cause his appearance in the Court, thus, the defendant was proceeded exparte, vide order dated 16.05.2015.
6. Thereafter, the plaintiff bank has examined its AR, Sh. Mohit Grover in support of his claim, who has proved the various documents on record, which are ExPW1/1 to ExPW1/8 Colly viz:
Copy of Power of attorney is Ex.PW1/1 (OSR). Original copy of Credit facility application form is Ex.PW1/2. Original copy of unattested deed of hypothecation is Ex.PW1/3. Original copy of irrevocable power of attorney is Ex.PW1/4. Office Copy of Loan Recall notice dated 11022014 is Ex.PW1/5.Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 4
Original Postal receipt is Ex. PW1/6 Certified Statement of account dated 24042014 is Ex.PW1/7. Certified Statement of account dated 18052015 along with certificate under Sec. 65B of the Indian Evidence Act is Ex. PW1/8 Colly.
7. I have meticulously gone through the records and have given my thoughtful consideration to the submissions of Sh. Sachin Garg, Ld. Counsel for the plaintiff, in light of the records.
8. During the course of arguments, it is fairly admitted on behalf of plaintiff Bank that after issuing of the loan recall notice on 11022014, the plaintiff bank has received an amount of Rs. 41,192/ on 18022014, Rs. 3,524/ on 26022014, Rs. 18,834/ on 01032014 & Rs. 18,834/ on 01042014, that totals a sum of Rs. 82,384/ and that it has not only received the amounts towards the loan account after terminating the loan vide loan termination notice dated 11022014 but also was receiving the amount against such loan account even after filing of the suit and that a total sum of Rs. 2,34,554/ was received from the defendant.
9. It is observed that the allegations made by the plaintiff on Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 5 affidavit in para 13 were absolutely beyond the pleadings made in the plaint but also contrary to the averments made in para 12 of the plaint that the defendant has 'neither cared to reply' to the loan termination notice dated 11022014 'nor have made any effort to repay' the outstanding amount.
10. It is observed that as per the plaint the loan amount was disbursed on 04022012 against the execution of loan documents by the defendant on 01022012. The loan amount was to be repaid in 59 monthly equated installments of Rs. 18,834/ that had to be started at the most from February 2012 and by February 2014, the defendant was to pay 24 equated monthly installments.
As per para 11 of the plaint, the defendant had paid an amount of Rs. 4,43,652/, 24 monthly equated installments, thus, in the month of February, 2014, there appears no cause of action to issue a loan recall notice on 11022014 on the premises that the defendant had defaulted in repayment of 2 equated monthly installments.
Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 6
Thus, the deposition of plaintiff as per Ex. PW1/A in para 10 of such affidavit basically proves no cause of action for the plaintiff Bank to issue the loan recall notice on 11022014 when admittedly, all due 24 EMI had been received by the bank.
11. Further, as per the loan recall notice Ex. PW1/6, there was an arrears shown for an amount of Rs. 68,390/ where as per the depositions in para 10 a total sum of Rs. 56,744/ were due on defaulting 2 equated monthly installments due as on 24042014. Thus, there appears an anomaly in the facts of the plaintiff as to why a loan recall notice dated 11022014 was issued when the plaintiff bank recorded the default of 2 equated monthly installments out of 26 due on 24042014, on calculating the arrears of default of Rs. 56,744/ as on 24042014. Nothing has been shown on record as to how the defendant has defaulted in the month of February 2014 for calling a loan recall notice when 24 EMIs due upto February 2014 have already been received by the Bank.
12. It is also observed that the facts deposed in para 11 of the Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 7 affidavit Ex. PW1/A are contrary to the facts deposed in para 10 of such affidavit as the bank was having an arrear towards default of 2 EMIs and an arrear of Rs. 56,744/ as on 24042014, then how it is said that the defendant has not cared to reply to the notice or that defendant has not made any effort to repay the outstanding amount as the outstanding amount shown in loan recall notice is Rs 68,390/ in the month of February 2014 when the loan was terminated, however it was a lessor amount of Rs. 56,744/ due on 24042014 on the basis of which the suit was filed in the month of May on 21052014.
13. The documentary evidence i.e. Ex. PW1/7 , the statement of account has shown that even after termination of loan, on 11022014 vide loan termination notice issued to the plaintiff, the plaintiff has received a total sum of Rs. 82,384/ upto 01042014 after the date of loan recall notice against the arrears of Rs. 68,390/ shown in the loan recall notice dated 11022014.
14. Surprisingly such facts were not brought on record in the body of the plaint, and it was stated that after receiving of the Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 8 notice the defendant has not repaid any outstanding amount and the statement of account dated 24042014 Ex. PW1/7 on the basis of which the suit has been filed for the suit amount of Rs. 6,10,595.55P, reflects the receipt of such amount after issuance of the loan termination notice Ex. PW1/6.
15. It is observed that plaintiff has accepted the amount against the loan account that was terminated vide loan recall notice dated 11022014 and has not brought in the plaint about the receipt of the amount against that terminated loan account after the date of loan recall notice.
It is an admitted facts and shown in para 13 of the affidavit Ex. PW1/A that even after filing of the suit, the Bank was continuously receiving the amount against the loan account that was terminated vide loan recall notice dated 11022014 and claims the reduced amount after deducting such amount claims an amount of Rs. 4,35,506.55P without seeking any 'amendment' of the plaint for the new facts & circumstances affecting the claim in the suit and without disclosing as to whether the termination of loan was Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 9 recalled and the account of the defendant was regularized, rather has brought certain new facts without pleading and beyond pleadings and even deposed in para 13 of the evidence of the plaintiff Ex. PW1/A.
16. It is a well settled principle of law that 'the court cannot consider any fact which is beyond the pleadings of the parties' as settled in case titled as Kalyan Singh Chauhan Vs. C.P. Joshi, 2011 (1) RCR (Civil) 865.
17. Further in a plethora of judgments, few of them are referred as the cases titled as Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta Vs. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt Vs. Land Aquisition Collector & Anr., AIR 2005 SC 3165 and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518, a principle of evidence has been settled that the court cannot Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 10 consider any facts not brought in the plaint, however deposed in the evidence for the purpose of adjudication of the issues being such facts would be treated as beyond the pleadings.
18. More specifically, it is a settled principle of law that the facts which are pleaded but not proved and the facts which are proved but beyond pleadings are not admissible in law in view of the law settled in case titled as Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242, it was held as under:
It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered.
It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.
The object and purpose of pleading is to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.
19. Thus, the plaintiff has failed to prove his claim in the suit for Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 11 concealing certain facts and deposing and producing certain evidence beyond pleadings.
20. In fact the case is based on the termination of loan vide loan termination dated 11022014, thus it has no cause of action as per the admitted pleadings and evidence on record that the plaintiff had paid 24 monthly installments and the loan was terminated in the month of February vide notice dated 11022014 where as upto the month of February 2014 only 24 EMIs were due and that were admittedly paid as per the evidence produced by the plaintiff.
21. Also the plaintiff has concealed the facts of receiving of an amount of Rs. 82,384/ between 18022014 & 01042014 & further payment of Rs. 2,34,554/ during pendancy of the claim and has not disclosed as to whether the notice of the termination of loan was recalled ever to regularise the loan account and as to whether the payment was received during pendancy as the outstanding was cleared as per such notice, however it has filed the suit in the month of May on the basis of termination of loan vide termination notice dated 11022014, but has not disclosed the Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 12 development of receiving of the amount between 12022014 till 21052014 affecting the claim.
22. Thus, the plaintiff has miserably failed to prove its case for the claim of the suit amount and hence, the suit is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Archana Sinha)
Delivered and Announced Addl. District Judge (Centl.03)
in the open Court Tis Hazari Courts / Delhi
On 06.06.2015 06.06.2015
Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 13
CS No.72/2015
M/s ICICI Bank Ltd. Vs Jaskiran Ahluwalia
06.06.2015
Present: Sh. Sachin Garg, Ld. Counsel for the plaintiff
Defendant is Exparte vide order dated 16052015 Vide separate detailed judgment of even date announced in the open court today, the suit of the plaintiff stands dismissed.
No order as to costs.
Decree sheet be drawn accordingly.
File be consigned to Record Room.
(Dr. Archana Sinha) ADJ03/Central/Delhi 06.06.2015 Suit No. 72/2015 ICICI Bank Ltd. V/s Jaikiran Ahluwalia Page No. 14