Delhi District Court
Syndicate Bank vs Sh. Neeraj Gupta on 13 August, 2007
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IN THE COURT OF SH. SATISH KUMAR ARORA, CIVIL JUDGE, DELHI
SUIT NO : 289/06/05
Syndicate Bank
a Body Corporate constituted under the
Banking Companies (Acquisition &
Transfer of Undertakings Act) 1970
having its head office at Manipal in
the state of Karnataka and interalia
a branch at Central Market,
Ashok Vihar, Delhi.
..........Plaintiff
Versus
Sh. Neeraj Gupta,
Proprietor : M/s. Alpine Packers & Closures,
BC-47, Shalimar Bagh,
Delhi-110 088.
..........Defendant
SUIT FOR RECOVERY
EX-PARTE JUDGMENT
1.This is a suit for recovery of Rs. 34,201.42/- (Rupees Thirty Four Thousand Two Hundred One and Paisa Forty Two Only) filed by the plaintiff bank against the defendant.
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2. Brief facts of the case as stated in the plaint are that the plaintiff bank is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1975 having, intere alia, its branch office at Central Market, Ashok Vihar, Delhi. Sh. Anil Goel, Senior Manager and principal officer at the aforesaid branch of the plaintiff bank is competent to sign and verify the pleadings and institute the suit on behalf of the plaintiff bank. It is the case of the plaintiff that the defendant, Sh. Neeraj Gupta representing himself to be the sole proprietor of M/s. Alpine Packers and Closures approached and requested the plaintiff bank for opening a current account which was duly acceded to by the plaintiff bank and a current account bearing no. CA 1586 was opened in the name & style of proprietorship concern M/s. Alpine Packers and Closures on 09.12.2002. Current account was regularly operated by the defendant and when there was a credit balance of Rs. 38,405.58/- in the defendant's account, the defendant approached the plaintiff bank with the request that he was in urgent need of funds to meet certain business commitments, therefore requesting the plaintiff bank for allowing temporary overdraft facility in the aforesaid current account of the defendant. The plaintiff bank acting on representation of the defendant, Page 2 of 7 -:3:- allowed the temporary overdraft facility by passing a cheque for a sum of Rs. 5,00,000/- (Rupees Five Lacs) on 20.05.2003 resulting in debit balance of Rs. 4,61,594.42/-. The said temporary overdraft facility was allowed by the plaintiff bank, inter alia, on the condition that the amount of overdraft along with interest would be deposited from time to time by the defendant within a period of 14 days from the date of availment. It is the case of the plaintiff that the said overdraft facility falls in the category of clean advance and the rate of interest as prescribed is 16% per annum compounded monthly.
3. It is further the case of the plaintiff that the defendant, after availing the temporary overdraft, failed to deposit/clear the amount in respect of the debit balance. The plaintiff bank repeatedly called upon the defendant to clear the debit balance along with interest. The defendant pursuant to the said notices/requests of the plaintiff bank, deposited certain payments but at irregular intervals and thereafter the operations in the current account by the defendant were totally stopped. Resultantly, the plaintiff sent a legal notice dated 04.01.2005 thereby calling upon the defendant to clear the dues. Neither any payment nor any reply was given by the defendant, hence, the Page 3 of 7 -:4:- present suit of the plaintiff bank against the defendant. It is the case of the plaintiff that plaintiff bank is maintaining regular books of account in its normal and usual course of banking business and a sum of Rs. 34,201.42/- is due and outstanding in current account no. CA 1586 (now, NPL account no. 2/04) of the defendant as on 31.05.2005. Copies of the statement of account duly certified under the Bankers' Book Evidence Act are attached with the plaint as annexure A.
4. The defendant was served by way of affixation dated 27.10.2005. Since on the said affixation report there were remarks that "the defendant has left the premises two years", therefore the application under Order 5 Rule 20 CPC was moved for substituted service of the defendant. The defendant was duly served through publication in the newspaper "The Statesman" dated 25.10.2005. Despite due service, defendant remained absent and was accordingly, proceeded ex-parte by an order of this court dated 14.12.2005.
5. Plaintiff has examined PW-1 & PW-2 as its witnesses in ex-parte plaintiff's evidence in support of its case. PW-1, Sh. Dharmender Kumar, Page 4 of 7 -:5:- Clerk at the aforesaid branch of the plaintiff bank was examined by way of his affidavit Ex. PW-1/A who reiterated the case of the plaintiff bank and also brought the original Power of Attorney, Ex. PW-1/1 executed by the Directors of the plaintiff bank in favour of Sh. Anil Goel, attorney of the plaintiff bank. PW-1 deposed that he is competent to depose on account of the fact that he is well conversant with the facts of the present case as he is posted as a Clerk at the aforesaid branch of the plaintiff bank since January, 2002. PW-1 proved the copy of the legal notice dated 04.01.2005 as Ex. PW-1/2. PW-1 further proved the copies of the statement of account of the defendant duly maintained under the Bankers' Book Evidence Act as Ex. PW-1/4 and the Shadow account of the defendant as Ex. PW-1/5.
6. PW-2, Sh. Rakesh Gupta, Senior Manager of the plaintiff bank was examined by way of affidavit which is Ex. PW-2/A. It was stated by PW-2 that he was posted at the Ashok Vihar branch of the plaintiff bank from June, 2001 onwards to June, 2004 and therefore is fully conversant with the facts of the present case. PW-2 identified the signatures of the defendant in defendant's application for opening of current account with the plaintiff bank Page 5 of 7 -:6:- which is Ex. PW-2/1. PW-2 also identified the signatures of the defendant on the cheques issued by the defendant which are Ex. PW-2/2 to PW-2/11 respectively.
7. Both the plaintiff's witnesses have reiterated the facts as averred in the plaint. Plaintiff has produced on record the application by the defendant for opening of current account which is Ex. PW-2/1, cheques bearing the signatures of the defendant (signed in the capacity of proprietor of M/s. Alpine Packers & Closures) in original which are Ex. PW-2/2 to PW-2/11 respectively, the statement of account of the defendant in the name of M/s. Alpine Packers & Closures, maintained by the plaintiff bank and duly certified and admissible under the Bankers' Book of Evidence Act as Ex. PW-1/4, certified copy of the shadow account, Ex. PW-1/5, of M/s. Alpine Packers & Closures, the proprietorship concern of the defendant duly admissible under the Bankers' Book of Evidence Act, the legal notice dated 04.01.2005, Ex. PW-1/2 and the Power of Attorney, Ex. PW-1/1.
8. Since the defendant was proceeded ex-parte, therefore, the Page 6 of 7 -:7:- testimony of the plaintiff witnesses goes unrebutted and read with the documents placed on record by the plaintiff bank, duly discharges the onus on the plaintiff to prove its case. From the above said, it becomes clear that the defendant had defaulted in clearing the dues arisen on account of temporary overdraft facility availed by him with the plaintiff bank.
9. Considering the above said and from the documents placed on record, this court is of the considered opinion that the present suit has merits. Accordingly, suit of the plaintiff is decreed in the sum of Rs. 34,201.42/- in favour of the plaintiff and against the defendant along with interest @ 12% per annum from the date of filing of the suit till its realization. Costs are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in open court:
Dated : 13th August, 2007 (SATISH KUMAR ARORA) (Three copies attached) CIVIL JUDGE, DELHI
This judgment contains 7 pages and each page bears my signatures. Page 7 of 7