Delhi District Court
Icici Bank vs . Chander Singh on 28 January, 2014
ICICI Bank VS. Chander Singh
Civil Suit No. 317/11
: 1 :
IN THE COURT OF SH. MANISH KHURANA:JSCCCUM
ASCJCUMGUDN. JUDGE (NORTH): ROHINI COURTS:DELHI
Civil Suit No. 317/11
M/s ICICI Bank Ltd.
Having its Regd. Office at:
Landmark, Race Course Circle,
Vadodara390007
Having its branch office at:
Plot No. 7, S.D. Tower,
Sector08, Rohini,
New Delhi110085
Through its Authorized Representative
MR. Anurodh Julius ......................... Plaintiff
Versus
Chander Singh Gullaiya
S/o Sh. Bucha Ram, 541,
Chirag, Delhi17. ................ Defendant
DATE OF INSTITUTION: 18.03.2009
DATE OF DECISION: 28.01.2014
JUDGMENT :
1. Vide this judgment I proceed to dispose of the ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 2 : suit for recovery of Rs. 1,83,571.76/ (Rupees One Lakh Eighty Three Thousand Five Hundred Seventy One and Seventy Six Paise only). Through this suit it has been prayed that a decree for amount of Rs. 1,83,571.96 may be passed in favour of plaintiff and against the defendant together with costs, pendent lite and future interest @ 10.04% per annum from date of the filing of suit till the realization of money.
2. As per case of the plaintiff, the defendant approached and requested the plaintiff bank for grant the loan of Rs. 2,69,000/ for the purchase of ALTO LXI car and he entered into an agreement/credit facility and executed certain documents i.e. credit facility application alongwith terms and conditions for said facility. The Deed of Hypothecation and irrevocable power of attorney were executed on 28.01.2006. The plaintiff bank sanctioned and disbursed ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 3 : the loan of Rs. 2,69,000/ vide loan agreement no. LADEL00005492288 payable in 58 equated monthly installments of Rs. 5,873/ each. It is further stated that the defendant failed to adhere to the financial discipline of repayment of the loan and several ECS instructions/post dated cheques issued by the defendant were dishonoured. The defendant was served with the reminders and ultimately a demand notice dated 06.09.2008 calling upon him to make the payment and to hand over the peaceful possession of the vehicle. It is further stated that despite the receipt of said notice, the defendant neither replied the notice nor made any effort to pay the outstanding dues nor handed over the physical possession of the vehicle. Hence, the present suit has been filed.
3. The defendant contested the present suit and filed the written statement and allegations levelled in the present suit have been ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 4 : denied. Ld. counsel for the defendant has argued that payment receipts of repayment of loan are annexed with the Written Statement vide which he had made the payment of the loan amount. There is also a prayer for the dismissal of the suit.
4. From the pleadings of parties following issues were settled:
1. Whether the plaintiff is entitled for a decree for sum of Rs. 1,83,571.96, if yes then at what rate of interest? OPP
2. Whether the suit of the plaintiff is barred by limitation? OPD.
3. Whether the suit is liable to be dismissed as the plaint is not verified as per law? OPD.
4. Whether the suit of the plaintiff is liable to be dismissed because of misjoinder and nonjoinder of the necessary party? OPD
5. Relief.
The plaintiff got examined Sh. Arun Kr Chaudhary AR of the plaintiff as PW1 who tendered his evidence by way of affidavit and ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 5 : relied upon power of attorney in his favour as Ex. PW1/1, the original credit application form as PW1/2, the original deed of hyphothecation as Ex.PW1/C, the original irrevocable power of attorney as PW1/3, the copy of demand notice and postal receipts as Ex.PW1/5 and PW1/6 respectively, the certified copies of statement of account dated 28.02.2009 and 24.02.2012 as Ex. PW1/7 and PW1/8 respectively. AR has stated that the plaintiff bank granted the loan of Rs. 2,69,000/ to the defendant at his request for the purchase of the vehicle i.e. ALTO Car under loan cum Hypothecation Deed. It is further stated that the plaintiff was sanctioned and disbursed the loan of Rs. 2,69,000/ vide loan agreement no. LADEL00005492288 payable in 58 equated monthly installment and the the aforesaid documents were executed. It is further stated that the defendant failed to adhere to the financial discipline and defaulted in repayment ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 6 : of several EMIs and his loan was recalled. As per the affidavit and the statement of account dated 28.02.2009 and 24.02.2012, the sum of Rs. 1,09,569.96 is pending and recoverable and he also stated that the loan account of the defendant was adjusted for the sum of Rs. 74,002/ as the said sum has been paid by the defendant after filing of the present suit. During his crossexamination, this witness stated that the documents Ex. PW1/2 to PW1/4 were not executed in his presence and he did not recognize seal of the bank on the documents Ex. Mark 1 to Mark 40 and stated that these documents were not issued by the plaintiff bank. He denied that the defendant had made upto date payment of the installments to the plaintiff bank. He could not tell as to whether the signatures of the plaintiff were taken on blank proforma Ex. PW1/2 to PW1/4 and thereafter the details were filled up. He denied that the vehicle against which the ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 7 : loan was granted had been repossessed by the bank on 18.03.2009. He could not tell as to whether the defendant had made the payment of Rs. 2,64,447/ by February, 2010 however, he stated that as on today, the total amount paid by the defendant was 2,64,285/. He denied that no amount had been due against the defendant and he was not aware that in the present suit, any loan recall notice was given or not. He denied that the contents of documents EX. PW1/A were not relied upon and he also denied that the bank has filed a false case as the defendant had already paid the entire loan amount.
5. No witness has been examined by the defendant, however, Ld. counsel for the defendant has argued that the payment receipts have been filed by the defendant which are on record. He also argued that the entire payment has been made, therefore, the case of the plaintiff should be dismissed. No other arguments were raised ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 8 : by the ld. counsel for the defendant.
6. Issue wife findings are as under: ISSUE NO. 1: Whether the plaintiff is entitled for a decree for sum of Rs. 1,83,571.96, if yes, then at what rate of interest? OPP In this case, the plaintiff has examined the authorized representative of the plaintiff company who has stated in his affidavit that the loan of Rs. 2,69,000/ was granted to the defendant and he also repaid some of the installments, however, a sum of Rs. 109569.96 is still pending and due towards the defendant. Perusal of the crossexamination of AR of the plaintiff and the pleadings of the defendant reveal that the loan has not been disputed. Ld. counsel for the defendant has given the suggestion to the AR that the loan amount as alleged by the plaintiff in his affidavit is not due and payable, however, no such documentary proof has been produced ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 9 : or shown to the AR in his crossexamination. It is pertinent to mention that the defendant has not led any defence evidence and the receipts filed by him cannot be looked into as the defendant has not entered into the witness box and the none of the receipts stands proved.
Ld. counsel for the plaintiff has also argued that the defendant has filed his affidavit though the same was never tendered in evidence as the defendant did not enter into the witness box. It is further argued that perusal of aforesaid affidavit also reveals that the loan of Rs. 2,69,000/ has been admitted by the defendant and he has stated that he has paid Rs. 2,64,447/ upto February, 2010. Ld. counsel has also stated that the loan taken by the plaintiff was payable with interest and as per the written statement and the aforesaid affidavit, even the principal amount of loan remains unpaid.
ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 10 : Ld. counsel has stated that as per the statement of account dated 24.02.2012 Ex. PW1/8, the sum of Rs. 1,35,341/ was receivable from the defendant. It is further submitted that on the date of tendering evidence i.e. 17.10.2012, the sum of Rs. 1,09,569.96 was receivable from the defendant and the plaintiff has fairly stated the aforesaid amount in the affidavit and nothing was concealed therefrom. It is also stated that the defendant made certain payments after filing of the suit and the credit of which has been duly given to the defendant at the time of tendering of evidence.
In the instant case, the AR of the plaintiff has stated that the sum of Rs. 1,09,569.96 is receivable from the defendant and during his crossexamination, the loan has not been disputed and the defendant has also failed to prove or show that he is not liable to pay any sum to the plaintiff bank as no defence evidence has been led ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 11 : on his behalf. In the present case the loan documents and statement of Account are duly proved. The credit of payments received after filling of suit was also seen given by the plaintiff at the time of evidence. The defendant has no where alleged that he had paid the entire outstanding loan amount with upto date interest to the plaintiff. The defendant has failed to shake the veracity of the documents filed or the testimony of the AR of the plaintiff. The defendant has not challenged the contractual rate of interest i.e., 10.04 % per annum.
Therefore, considering the evidence on record, it stands proved that the plaintiff is entitled for a decree of sum of Rs. 1,09,569.96 alongwith interest at contractual rate of interest i.e., @10.04 % per annum. Hence, this issue is decided in favour of the plaintiff and against the defendant.
ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 12 : Issue No. 2 : Whether the suit of the plaintiff is barred by limitation? OPD The present suit filed by the plaintiff seeking decree for the sum of money against the defendant has been filed on 17.03.2009. The plaintiff has relied upon the loan documents vide which the loan was sanctioned and the statement of account vide which the payment was received by the plaintiff bank. As per the averments in the plaint and in the statement of account, the defendant has been making the payment even after filing of the plaint. Section 19 of the Limitation Act extends the period of limitation from the date of payment when the payment is coupled with acknowledgment of liability. The payment by cheque is sufficient proof of payment and acknowledgment of liability by the defendant. As per the statement of account dated 24.02.2012, the payment of the EMI has been ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 13 : made by the defendant vide cheque on 05.08.08 i.e. prior to the filing of the present case on 17.03.2009 which clearly shows that the suit of the plaintiff is not barred by limitation. Hence, this issue is decided against defendant and in favour of the plaintiff. Issue No. 3 : Whether the suit is liable to be dismissed as the plaint is not verified as per law? OPD The defendant has taken the defence that the plaint filed by the plaintiff is not verified as per law, hence the same may be dismissed. Order 7 Rule 1 CPC contains the particulars to be contained in the plaint and perusal of the plaint reveals that it contains all the particulars enumerated in order 7 rule 1 CPC. The question is whether the provisions contained in Order 6 relating to signing, verification and presentation of the plaint relate merely to procedure or whether a plaint which does not strictly comply with the ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 14 : requirements of Order 6 would cease to be a valid plaint and would be a nullity because of such defects or irregularities. It is true that when a plaint is presented to the Court or to such officer as the Court appoints, it is open to the Court or to the officer to point out the defects or irregularities to the person present thing the suit and to require him to rectify the defects or irregularities. But can it be said that the defects or irregularities would make the presentation of the suit itself invalid although the plaint is admitted and particulars of the plaint are entered in a register of suits as provided by Order 4, rule 2? In this connection it is necessary to note that Order 7, rule 11, which refers to the rejection of a plaint, enumerates only four cases in which a plaint has to be rejected, but it does not enumerate any of the defects or irregularities referred to in Order 6, Rules 14, Order 6, Rule 15, or Order 6, Rule 2. It is clear from the prevision contained in ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 15 : Order 6 that these rules relate only to procedure, and the better view would be to regard them as mere matters of procedure and to hold that if a plaint is not properly signed or verified but is admitted and entered in the register of suits it does not cease to be a plaint and the suit cannot be said not to have been instituted merely because of the existence of some defects or irregularities in the matter of signing and verification of the plaint. (All India Reporter Ltd. And Anr. Vs. Ramchandara Dhondo Datar on 30 September 1959 Bombay High Court). The present plaint is duly supported by the affidavit which is duly verified. In view of the abovesaid discussions, this issue is decided in favour of the plaintiff and against the defendant. Issue No. 4 : Whether the suit of the plaintiff is liable to be dismissed because of misjoinder and nonjoinder of the necessary party? OPD ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 16 : The defendant has taken the bald plea of nonjoinder and mis joinder of the parties in para 4 of the written statement. However the defendant has not stated or clarified as to which party is the necessary party who has not been impleaded in this case. The loan was allegedly sanctioned by the plaintiff bank to the defendant and the loan documents were executed between the plaintiff and the defendant. Therefore, it cannot be said that the necessary party to the suit was not impleaded by the plaintiff. Hence, this issue is decided in favour of plaintiff and against the defendant. Relief: So in given fact and circumstances of the case, view of the Court is that plaintiff has successfully discharged the onus placed upon him, hence suit of the plaintiff is decreed for the sum of Rs. 1,09,569.96 (Rupees One Lakh Nine Thousand five Hundred sixty ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 17 : nine and Ninety Six paise only) alongwith interest @ 10.04% per annum from the date of filing of the suit till realization in his favour and against the defendant. Cost of suit be also awarded in favour of the plaintiff. Decree sheet be drawn and thereafter, file be consigned to record room after due compliance.
Announced in the open (Manish Khurana) Court on 28.01.2014 JSCCcumASCJcumGudn. Judge North, Rohini Courts, Delhi ICICI Bank VS. Chander Singh Civil Suit No. 317/11 : 18 : 28.01.2014 Present : Ld. counsel for the plaintiff.
Ld proxy counsel for the defendant.
Vide my separate judgment announced in the open Court, the suit of the plaintiff stands decreed in favour of the plaintiff and against the defendant. Decree sheet be drawn accordingly. File be consigned to record after due compliance.
(MANISH KHURANA) JSCCcumASCJcumGudn. Judge North, Rohini Courts, Delhi 28.01.2014.
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