Delhi District Court
Canara Bank vs Sh. Nirmal Singh on 8 February, 2023
Page no. 1 of 9
THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 72/22
CNR NO. DLSW030001342022
IN THE MATTER OF :
CANARA BANK
Head Office At 112, J.C. Road, Bangalore
Also, At Janakpuri Branch,
Janak Cinema Complex, Janakpuri, New Delhi. ........ Plaintiff
Versus
Sh. Nirmal Singh,
S/O Sh. Hakam Singh,
R/O House No.16, Om Vihar,
Uttam Nagar, West Delhi,
New Delhi-110059
Also, At:
44-45, Om Vihar Phase I,
Uttam Nagar, West Delhi,
New Delhi-110059. ............ Defendant
Date of filing : 21.01.2022
Date of Institution : 22.01.2022
Date of pronouncing judgment : 08.02.2023
SUIT FOR RECOVERY OF MONEY
EX-PARTE JUDGMENT
1.Present suit filed by plaintiff bank for recovery of Rs. 1,31,491.18/- against the defendant. Present suit has been instituted by Sh. Surender Prasad, A.R of plaintiff bank. However, he was later on substituted by Sh. Pradeep Kumar.
2. It is submitted by plaintiff that defendant has business of Taxi Driver and the borrower of MSE LOAN for purchase of vehicle Honda Amaze and the defendant has approached the plaintiff bank through its branch at Janakpuri, New Delhi on ASHISH Digitally signed by ASHISH Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh. KUMAR KUMAR MEENA Date: 2023.02.08 MEENA 14:50:38 +05'30' Page no. 2 of 9 04.11.2015 and requested for the grant of MSE LOAN of Rs. 4,75,000.00 (Rupees Four Lacs Seventy-Five Thousand only) for purchase of vehicle.
3. It is averred that in this regard the General Agreement (ASD-6) dated 04.11.2015 was executed by the defendant No.1 and Composite Hypothecation Agreement (ASD-4) dated 04.11.2015 were executed between the defendant and the applicant Bank (at that time Syndicate Bank and now it is merged with Canara Bank) and other necessary documents were executed by the borrower in favour of the bank as security for the vehicle loan advance by OM 4 the applicant bank to the borrower, defendant.
4. It is averred that the applicant bank after following the due process of banking procedures considered the request of the defendants and accordingly sanctioned the MSE LOAN of Rs 4,75,000.00 (Rupees Four Lacs Seventy Five Thousands only) on 04.11.2015 @ B.R.(9.70) + 1=10.70% per annum compounded with monthly rest. That in consideration of the grant of and due availment of the aforesaid facility, the defendants executed signed and delivered to the applicant bank the following loan documents for valuable consideration in favour of the applicant bank:
a) Loan application dated 04.11.2015 for MSE LOAN of Rs 4,75,000/(Rupees Four Lacs Seventy Five Thousands only) in the form of the applicant bank (Syndicate Bank) along with particulars of assets and liabilities of the Borrower along with Aadhar Card, Voter Election Card, Pan Card, and Driving License and PSB Driver's Badge issued by Transport Department, electricity bill and copy of passbook of Dena Bank, in the name of the Defendant of the address of defendant. Qutation of Honda Amaze dated 16.10.2015 of Samara Honda, Mayapuri, New Delhi.
b) The Sanction Letter/ process note-SyndMISE" dated ASHISH Digitally signed by ASHISH Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh. KUMAR KUMAR MEENA Date: 2023.02.08 MEENA 14:50:46 +05'30' Page no. 3 of 9 04.11.2015 in the name of the defendant was acknowledged by rrower/defendant on 04.11.2015. Receipt issued dated 28.11.2015 issued by Govt. of NCT of Delhi, Burari Taxi Unit of purchased vehicle.
d) Pronote of Rs.4,75,000/- executed by defendant dated 04.11.2015.
e) Composite Hypothecation Agreement dated 04.11.2015 executed by defendant.
f) Permit in respect of Contract Carriage issued by the Govt. of N.C.T. of Delhi in the name of the defendant along with copy of insurance.
g) Letter of undertaking dated 05.11.2015 for mandate for repayment and repayment schedule.
5. It is also averred that the defendant had availed and utilized the MSE LOAN amount of Rs. 4,75,000/- (Rupees Four Lacs Seventy Five Thousands only) for purchasing of vehicle (MOTORCAB) vide registration DL1RT8896 HONDA AMAZE vide date of registration 28.11.2015 after executing the above mentioned required loan/limit documents by the defendant in favour of the applicant bank, in year 2015 for valuable consideration which is to be payable.
6. It is averred that the defendant duly enjoyed the credit facilities granted to the defendant by the applicant bank but the defendant miserably failed to adhere and abide by the financial discipline of the applicant bank and thereby the Loan account of the defendant had become overdue, and thereafter, the Loan account of the defendant became highly irregular and sticky. The plaintiff bank being concerned with its due outstanding requested the defendant for time and again for regularization of the Loan account of the defendant, but the defendant failed to regularize the ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh. Date: 2023.02.08 MEENA 14:50:53 +05'30' Page no. 4 of 9 loan account.
7. It is averred that as per Agreement, the Defendant is liable to pay the loan amount and on the basis of the said Agreement and other documents executed between the Defendant and Applicant Bank, the loan was sanctioned a total sum of Rs 4,75,000.00 (Rupees Four Lacs Seventy Five Thousands only) and paid to the Defendant and therefore, the Defendant is liable to make payment to the Applicant Bank and the liability is co-extensive and continuous till the payment of the due loan amount.
8. It is averred that the said assets purchased out of the loan amount is the security with the applicant bank as Primary security for the repayment of the entire loan amount and dues, due and payable together with up-to-date interest with monthly rest and other allied charges. It is further submitted that the defendant duly availed the facility from time to time; however, the defendant failed and neglected to clear their dues outstanding in maintained with the applicant bank.
9. It is averred that the applicant bank called upon the defendant from time to time to repay the dues outstanding in their loan account; however, despite repeated promises made by the defendant, they deliberately and intentionally failed and neglected to pay the dues of the applicant bank. Due to non-fulfillment of the financial discipline of the applicant bank by the defendant, the loan/limit account of defendant had become overdue thereafter the Loan/Limit account is highly irregular and sticky, which is reflected in the statement of account. The rate of interest payable at present is 9.80 % p.a. compounded with monthly rests and 2% simple overdue penal interest, till its realization.
10. It is also averred that the applicant bank reminded defendant about his overdue liability time and again through various letters ASHISH Digitally signed by ASHISH Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh.
KUMAR KUMAR MEENA
Date: 2023.02.08
MEENA 14:51:01 +05'30'
Page no. 5 of 9
dated 19.02.2021 and 01.04.2021 respectively reminding about her liability but the defendant did not bother either to regularize or to liquidate the Account. Due to non-payment as per procedure of the bank, the account was classified as NPA on 30.03.2021.
11. It is further averred that due to willful default and non- cooperative attitude of the defendant, the applicant bank as per its lawful rights had recalled the outstanding liability in lump sum by issuing a legal notice of demand dated 28.12.2021 to defendant for recalling the outstanding liability in lump sum to defendant through Speed Post by Sh. Sushil Kumar Rai, Advocate and the defendants were served but the defendants again failed to comply the same overdrawn and the loan account of defendants, remained irregular, overdue, and sticky.
12. It is further averred that the applicant bank has maintained the MSE LOAN Account No. 90547910000112 of the defendant, in its account books as per banking norms, in its ordinary and regular course of business; whereby there stands a net outstanding liability of Rs.1,31,491.18/- (Rupees One Lakh Thirty One Thousand Four Hundred Ninety One And Eighteen Paisa Only) including interest charged up to 31.12.2021 and further interest from 01.01.2022 is also payable @ 9.80% per annum compounded with monthly rests and simple due penal interest @ 2 % per annum compounded with monthly rests, till its realization is also payable.
13. Hence, plaintiff seeks the following reliefs:
a) Pass a joint and several money decree for Rs.1,31,491.18/-
(Rupees One Lakh Thirty One Thousand Four Hundred Ninety One And Eighteen Paisa Only) including interest charged up to 31.12.2021 and further interest from 01.01.2022 is also payable @ 9.80% per annum compounded with monthly rests and simple overdue penal interest @ 2 % per annum monthly rests, till its ASHISH Digitally signed by ASHISH Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh. KUMAR KUMAR MEENA Date: 2023.02.08 MEENA 14:51:09 +05'30' Page no. 6 of 9 realization of the decreetal amount in favour of the plaintiff bank and against the defendant; and
b) To award the cost and legal expenses of the suit in favour of the plaintiff bank and against the defendant
14. Summons of the suit were served upon the defendant on 28.02.2022. The defendant has filed his appearance, but no WS has been filed on behalf of defendant. Therefore, the right of the defendant to file WS was struck off and the defendant was proceeded ex-parte on 29.11.2022.
15. The plaintiff only examined one witness on his behalf i.e. the Senior Manager of the plaintiff who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon the following documents:
1) Copy of GPA/ authority letter is Ex.PW1/1 (OSR)
2) Power of attorney of Mr. Surender Prasad Mark A.
3) Loan application dt. 4.11.2015 is Ex.PW1/2.
3) Copy of Aadhar card, voter election card, PAN card and driving license and PSB driver's badge issued by transport department, electricity bill and copy of passbook are collectively marked as Mark B.
4) Copy of Quotation of Honda Amaze dt. 16.10.2015 is Ex.PW1/3.
5) Sanction letter/ process note Synd MSE dt. 4.11.2015 is Ex.PW1/4.
6) Copy of Receipt issued for registration dt. 28.11.2015 issued by the Govt. of NCT of Delhi is Ex.PW1/5.
7) Pronote of Rs.4,75,000 executed by the defendant Ex.PW1/6.
8) Composite Hypothecation agreement is Ex.PW1/7.
ASHISH Digitally by ASHISH signed Civil Suit No. 72/22 KUMAR KUMAR Canara Bank Vs. Sh.Nirmal Singh.
MEENA Date: 2023.02.08 MEENA 14:51:17 +05'30' Page no. 7 of 9
9) Photocopy of permit in respect of contract carriage is marked as Mark C (colly).
10) Letter of undertaking dt. 5.11.2015 is Ex.PW1/8.
11) Acknowledgement of debt and security dt. 3.11.2020 is Ex.PW1/9.
12) Advance on hypothecation of vehicle dt.5.1.2021 is Ex.PW1/10.
13) Recall notice dt. 19.2.2021 and 1.4.2021 is Ex.PW1/11 and PW1/12 respectively.
14) Office copy of legal notice dt. 28.12.2021 is Ex.PW1/13.
15) Postal receipts are Ex.PW1/14.
16) Tracking consignment of India Post is Ex.PW1/15 (colly).
17) Copy of e-mail receipt is Ex.PW1/16.
18) Statement of account is Ex.PW1/17. (Not mentioned as exhibited in affidavit but the same has been exhibited in the court.).
No Cross examination was done as the defendant had already been proceeded ex parte.
16. PE was closed on 17.01.2023 and ex-parte final arguments were heard.
17. During the Ex-parte arguments, Ld. Counsel for plaintiff adverted to authority letter, power of attorney, loan application, Quotation of Honda Amaze, sanction letter/ process notes, receipt, pronote, composite hypothecation agreement, permit in respect of contract carriage, letter of undertaking, acknowledgement of debt and security, advance on hypothecation of vehicle and statement of account. He further relied upon the recall notice as well as legal notice and the postal receipt and email receipt. He further submitted that the defendant was served, but he chose not to defend the suit.
18. Ld. Counsel for plaintiff argued that the suit of the plaintiff ASHISH Digitally by ASHISH signed Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh.
KUMAR KUMAR Date:
MEENA MEENA 2023.02.08 14:51:24 +05'30' Page no. 8 of 9 should be decreed as the testimony of PW1 remains uncontroverted along with the corroborative evidence on the record.
19. Heard. Perused. Considered.
20. The plaintiff has sufficiently discharged the burden of proof placed upon him by virtue of Section 101 Indian Evidence Act, 1872. The PW1 has testified in the affidavit of evidence that the defendant availed the credit facility but has failed to re-pay the outstanding loan amount. Oral testimony has also been supported by corroborative evidence. PW1 has also duly proved the acknowledgment of its liability on part of the defendant, by relying upon Ex. PW 1/1 to Ex PW 1/17.
21. The testimony of PW1 has remained uncontroverted. Reference can be placed upon the Judgement of Hon'ble High Court of Delhi in M/s. Eco Lab I.MC.N vs. Eco Labs Ltd., 2011(185) DLT 664, wherein it was held that if the defendant has failed to cross-examine the plaintiff, the evidence of plaintiff is to be presumed to be correct. In view of the fact that the testimony of PW1 has remained unrebutted, his testimony on oath is accepted as correct. There is no reason to disbelieve the same.
22. Further, the defendant has not replied to the legal notice being Ex.PW1/13. PW1 deposed that the legal notice was duly served upon the defendant. The contents of the legal notice can be deemed to be admitted by the defendant. Reliance in this regard can be placed upon judgement of the Hon'ble Supreme Court of India titled Abdul Gaffar v DDA, 2001 RLR 249.
23. In any case, since the defendant had not appeared despite service and also chose not to file WS, it can be safely presumed that he has no defence to offer. The suit of the plaintiff is well within the limitation as the defendant has made payment within ASHISH Digitally by ASHISH signed Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh. KUMAR KUMAR MEENA Date: 2023.02.08 MEENA 14:51:32 +05'30' Page no. 9 of 9 the year of 2015 to 2018. Accordingly, limitation to file present suit was extended. Further as per Ex. PW1/17, defendant has made last payment of 05.07.2021. Therefore, present suit is well-within limitation.
24. The suit of the plaintiff is therefore decreed in the favour of the plaintiff and against the defendant, the Defendant is directed to pay Rs. 1,31,491.18/- to the plaintiff with the interest @ 6 % p.a. from the date of filing of the suit till the date of actual realization of the decreetal amount.
25. Costs of the suit are also awarded in favour of the plaintiff.
26. Decree sheet be prepared accordingly.
27. File be consigned to Record Room after compliance with due formalities.
ASHISH Digitally by ASHISH signed Announced in the open court on 08.02.2023 KUMAR KUMAR MEENA Date: 2023.02.08 MEENA 14:51:41 +05'30' (Ashish Kumar Meena) Civil Judge-01(SW) Dwarka Courts, New Delhi 08.02.2023 It is certified that the present judgment runs into nine pages and each page bears my signature.
ASHISH Digitally signed by
ASHISH KUMAR MEENA
KUMAR Date: 2023.02.08
MEENA 14:51:47 +05'30'
(Ashish Kumar Meena)
Civil Judge-01(SW)
Dwarka Courts, New Delhi
08.02.2023
Civil Suit No. 72/22 Canara Bank Vs. Sh.Nirmal Singh.