Delhi District Court
Having Its Branch Office At vs Kunaal Malhotra on 28 August, 2008
IN THE COURT OF SH. SUNIL KUMAR AGGARWAL
ADDL. DISTRICT JUDGE, DELHI
Suit No. 571/07
ICICI Bank Ltd
Having its registered office at:
''Landmark'', Race Course Circle
Vadodara- 390007
Having its branch office at.
E Block, Videocon Tower
Jhandewalan Extension
New Delhi -110 055 ................... Plaintiff
Versus
Kunaal Malhotra
8-A-1 , C-72,
Nilgiri Part-I, Sector 34,
Noida -201 301
............... Defendant
Plaint presented on 24.09.07
JUDGMENT:
1. This suit under summary procedure has been filed by the Plaintiff, an incorporated company carrying on banking business in India per licence under Banking Regulations Act, through Sh. Arun Choudhary, Collection Manager who has duly been authorized in this behalf by virtue of a Power of Attorney executed in his favour on the ground that for the purchase of vehicle Esteem Vxi loan of Rs. 4,59,000/- was accorded to the Defendant on 17.02.06 on their request vide loan agreement No. .. 2 ..
LADEL 00005714006. The loan was to carry interest at the rate of 10.5 % per annum and was repayable in equated monthly installments of Rs. 9,781/- each. Defendant had executed credit facility application along with terms and conditions of loan, deed of hypothecation and irrevocable power of attorney authorizing the Plaintiff to take possession of vehicle and sell the same to appropriate the proceeds in the event of default by the Defendants.
2. After getting the vehicle registered vide No. DL 3C AG 7074 it was hypothecated in favour of the Plaintiff in terms of loan documents. After availing the facility Defendant did not remain regular in discharging the liability. Despite requests and reminders to regularize the account, Defendant did not pay a heed. He further did not produce the hypothecated vehicle for inspection by the officials of Plaintiff as per the terms of agreement. These circumstances forced Plaintiff to recall the loan vide notice dated 18.08.07 as also to ask for the possession of subject vehicle from the Defendants. Neither reply of the notice was received not was it complied with. As per the statement of account maintained by the Plaintiff in the ordinary course of its .. 3 ..
business a sum of Rs. 4,60,992.09 including principal, interest, penal interest and other charges, is outstanding against the Defendants for the recovery of which the suit has been filed.
3. Along with the suit an application U/o. 40 Rule 1 and sections 94 and 151 CPC was filed for ex-parte appointment of receiver for taking control and possession of subject vehicle. It was allowed on 26.09.07 and an employee of Plaintiff was appointed the receiver. So far there is no report of receiver having traced out or seized the vehicle.
4. After accepting the suit U/o. 37 CPC, summons for appearance were sent to the Defendant through registered post but the same were returned with report '' intimation delivered''dated 17.11.07; ''unclaimed'' dated 23.11.07;
''intimation given'' dated 01.12.07 and ''unclaimed ''dated 07.12.07. By way of abundant caution processes were also sent subsequently in ordinary manner as well as through registered post but all have returned with reports that the addressee is not putting up at given address and that he has sold off his property and shifted to unknown place. On the representation of Plaintiff that no other address of Defendant ..4..
is available in their records nor was it updated by the Defendant and that effort to locate him have proved futile , substituted service was directed. The Defendant was accordingly served through publication of proclamation in The statesman in its issue of 29.07.08 of which copy was forwarded to the Defendant by the publisher as well as by the advertising agency on 29.07.08 and 30.07.08 respectively and must have reached their destination within a week of posting. It has been held in M/s. Bhawani Auto Distributors Vs K Muralidharan , 2008 (NOC) 139 Guj. That where the rept managed to have notice returned with postal remarkes not claimed, unclaimed , it is deemed to be duly served upon him. Reference in this behalf be also be made to State of MP Vs Hiralal , 1996 I AD (SC) 874 . Service of summons thus are legitimately imputed on the Defendant. No appearance however has been entered by the Defendant during the statutory period or till date.
5. I have heard Sh. Pankaj Kumar, Advocate Ld. Counsel for the Plaintiff and perused the record. Suit has been filed by the Plaintiff within the period of limitation through their official who has duly been authorized in this behalf by Power of Attorney dated 27.07.07. The computer ..5..
generated copy of statement of account has been certified under the Banker'sBooks Evidence Act, 1891 and therefore inspires confidence. The Defendant having failed to put in appearance, within 10 days of service of summons are deemed to have accepted the version of Plaintiff. The statement of account reflects his poor record of repayment of installments. The charges have been levied in the account as per the terms of agreement with the Defendants. The suit thus is liable to be decreed U/o. 37 Rule 2 (3) CPC .
6. In view of the above suit is decreed in the sum of Rs. 4,60,992.09 with interest at the rate of 10.5 % per annum from the date of filing of suit till today and half costs in favour of the Plaintiff and against the Defendant. The Plaintiff is entitled to realize this amount by attachment and sale of hypothecated vehicle Esteem Vxi bearing registration No. DL 3C AG 7074 and balance if any, from the other assets of Defendant.
7. Decree sheet be accordingly prepared. File be consigned to record room.
ANNOUNCED IN THE OPEN (SUNIL KR AGGARWAL) COURT ON DATED: 28.08.08 ADDL. DISTRICT JUDGE DELHI Suit No. 571/08 28.08.08 Present: Sh. Pankaj Kumar Advocate Ld. Counsel for the Plaintiff.
None for Defendant .
Summons for appearance were sent to the Defendant through registered post but the same were returned with report '' intimation delivered'' dated 17.11.07;
''unclaimed'' dated 23.11.07; ''intimationgiven''dated 01.12.07 and ''unclaimed''dated 07.12.07. By way of abundant caution processes were also sent subsequently in ordinary manner as well as through registered post but all have returned with reports that the addressee is not putting up at given address and that he has sold off his property and shifted to unknown place. The Defendant was accordingly served through publication of proclamation in The statesman in its issue of 29.07.08 of which copy was forwarded to the Defendant by the publisher as well as by the advertising agency on 29.07.08 and 30.07.08 respectively and must have reached their destination within a week of posting. Service of summons thus are legitimately imputed on the Defendant. No appearance however has been entered by the Defendant during the statutory period or till date. Arguments heard.
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Vide separate judgment the suit has been decreed in favour of the Plaintiff and against the Defendant . In view of the provision made in the judgment the application of Plaintiff is satisfied. Decree sheet be accordingly prepared.
File be consigned to record room.
(Sunil Kr Aggarwal) ADJ/Delhi 28.08.08