Delhi District Court
The Federal Bank Limited A Banking vs Sh. Sohan Lal Kaushik S/O Sh. Nefa Singh on 4 August, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 469/2014
IN THE MATTER OF:
The federal Bank Limited a Banking
company registered under the companies
Act, 1956 with its Registered Office
at Aluva, Kerala, and having a branch
amongst others at Karol Bagh Branch,
New Delhi. ...............Plaintiff
Versus.
1. Sh. Sohan Lal Kaushik S/o Sh. Nefa Singh,
Computer Operator at Amrit T. Pvt. Ltd.,
6/8 Indira Vihar Colony, Kingsway Camp, Delhi.
Also at: L5, New Police Line, L Block,
Kingsway Camp, Delhi110009.
2. Smt. Surbhi Kaushik W/o Sh. Sohan Lal Kaushik,
Storage in charge, Shroff Publishers and
Distributers Pvt. Ltd., Basement 2/11,
Ansari Road, Darya Ganj, New Delhi110002.
Also at: L5 New Police Line, L Block,
Kingsway Camp, Delhi110009. ................ Defendants
Date of Institution: 02.07.2012
Date of Reserving for Judgment: 04.08.2014
Date of Judgment : 04.08.2014
Suit No. 469/2014 Page No. 1 of 13
SUIT FOR RECOVERY OF RS. 75,838/
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery of Rs. 75,838/ filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that on the joint request of defendants, defendant No. 1 was granted a personal loan of 50,000/ by the Plaintiff Bank which was repayable in 30 installment of Rs. 2,052/ each along with interest @ 16.75 % p.a. with monthly rests. Various documents were executed by the defendants in favour of the plaintiff Bank. It is further submitted that defendants failed to adhere the repayment schedule and defaulted in repayment of the loan. A legal notice dt. 12062012 was also sent to the defendants in this regard. But despite the same defendants did not pay the outstanding amount, hence the present suit is filed by the plaintiff.
3. On the other hand the defendants in their WS have contended that suit of the plaintiff is unwarranted and without any cause of action qua the answering defendants . Further the suit is time barred as the same has been filed after three years of the cause of action as the last payment alleged to have been deposited by the defendants on 05.06.2009 of a sum of Rs. 2,052/ in cash but the plaintiff has Suit No. 469/2014 Page No. 2 of 13 manipulated the statement of account, as they are the creator of that account, by depositing Rs. 2,100/ on 06.08.09 by 'SELF' which clearly shows that the statement of account of the defendants has been manipulated and fabricated in order to create limitation to file the present suit. It is further submitted that the statement of account of the defendant no. 1 has been manipulated to the extent of deposit of Rs. 2,100/ by the plaintiff by 'SELF' on 06.08.2009 whereas the previous deposits have been shown in 'CASH' of Rs. 2,052/. It is further submitted that the stamp paper dated 05.02.2009 appears to be manipulated one as the stamp of the stamp vendor, his particulars and signatures do not bear and the same has not been duly signed and filled up by the stamp vendor. The font and size of the font of the first page of the agreement are altogether different from the following pages which show that the agreement has been manipulated after obtaining the signatures on the defendants. The agreement shows that the defendants are the borrowers of the alleged personal loan whereas the statement of account shows that only the defendant no.1 is the borrower having account no. 13827600005954 and the name of defendant no. 2 is not mentioned in that said account and as such both the documents are contrary to each other. The document relied upon by the plaintiff Suit No. 469/2014 Page No. 3 of 13 dated 01.07.2009 appears to be manipulated at the addressing point as the name of the defendant no. 2 has been added later on by adding 'And Surabhi Kaushik whereas the name of the defendant no.2 has not been found place in other connected documents. The writing of the name of defendant no.1 is different from defendant from defendant no.2 in the documents relied upon by the plaintiff clearly shows the manipulation and fabrication of the documents against the defendants. There are overwriting pertaining to the dates mentioned in the Security Delivery Letter and each and every writing and moreover, the inks are different from each other in the documents relied upon by the plaintiff. It is further submitted that the statement of account relied upon by the plaintiff is pertaining to 31.01.2009 to 12.06.2009 which appears to be manipulated and fabricated to the effect of 'DEPOSITS' AND 'WITHDRAWALS' as a matter of fact, the defendants never withdrew any amount from the said statement of account. It is further submitted that as a matter of practice and rule , the personal loan cannot be granted without Guarantor and in the present loan, there is no Guarantor and the whole process of granting of loan has been violated. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed. Suit No. 469/2014 Page No. 4 of 13
4. Vide order dt. 06122012, from the pleadings of the parties following issues were framed:
i) Whether the suit of the plaintiff is barred by time? OPD
ii) Whether the stamp papers, loan documents and account documents are manipulated?OPD
iii) Whether the plaintiff is entitled to recover the suit amount, as prayed for? OPP
iv) Whether the plaintiff is also entitled to recover interest? If so, at what rate and for which period? OPP
v) Relief.
5. To prove its case plaintiff has examined Smt. Pratibha Singh AR of the plaintiff Bank as PW1. PW1 has filed her evidence by way of affidavit Ex. PW1/A. In her affidavit PW1 has reiterated the facts mentioned in the plaint and relied upon the following documents:
i) Power of Attorney in favour of PW1 is Ex. PW1/1.
ii) Power of Attorney in favour of Sh. Sabu R.S. is Ex. PW1/1A. Iii) Agreement for Personal Loan dated 06022009 executed by both the Defendants is Ex. PW1/2.
iv) Demand Promissory Note dated 06022009 executed by both the defendants is Ex. PW1/3.
v) Security Delivery letter dated 06022009 is Ex. PW1/4.
vi) Balance confirmation letter dt. 01072009 is Ex. PW1/5. Suit No. 469/2014 Page No. 5 of 13 Vii) Legal notice dt. 12062012 and postal receipt of the same is Ex. PW1/6.
Viii) Statement of account is Ex. PW1/7.
During crossexamination the PW1 was also confronted with deposit receipts Ex. PW1/D1 to PW1/D4.
6. On the other hand the defendant has examined himself as DW1 who filed his evidence by way of affidavit Ex. DW1/A. In his affidavit PW1 has reiterated the facts mentioned in the WS and relied upon the documents already Ex. PW1/D1 to PW1/D4. The DW1 was also crossexamined by the Ld. counsel for the plaintiff.
7. I have heard Ld. counsel for both the parties and perused the record & gone through the relevant provision of law.
8. My issue wise finding is as under:
9. Issue no. 1 Whether the suit of the plaintiff is barred by time? OPD Issue No. 2 Whether the stamp papers, loan documents and account documents are manipulated?OPD Issue No. 3 Whether the plaintiff is entitled to recover the suit amount, as prayed for? OPP Issue nos. 1, 2 and 3 being interrelated are being taken up and decided together.
Suit No. 469/2014 Page No. 6 of 13 Before delving on the rival contentions of the parties it is worthwhile to discuss the evidence led by the parties.
10.The plaintiff examined Mrs. Pratibha Singh as PW1 who stated in her crossexamination that she is working in the Karol Branch of the plaintiff Bank since May, 2010. The suit account relates to the year 2009. The Voucher Ex. PW1/D4 does not bear the date put by the depositor. The cash were not deposed by any of the defendants. There may be different seal for deposing cash and at some counter it is round and at some square. Voucher Ex. PW1/D1 to D3 are of Rs. 2,052/ each and voucher Ex. PW1/D4 is for Rs. 2100/. Before granting loan the KYC of the borrower is checked in which his address through and Identify proof are verified. The income proof is checked through ITR , Salary Slip and form 16 of he Borrower and some cases through the pass book of the account of the borrower maintained with the other banks. It is not mandatory on the part of the bank to obtain guarantor in each case. Ex. Pw1/7 is the documents of the Bank as per bank's record. She denied that the entry of self on 06082009 in the account statement has been made by the bank from its own account in order to create limitation to file the present suit.
11.The defendant examined Sohan Lal Kaushik/defendant no. 1 as Suit No. 469/2014 Page No. 7 of 13 DW1 who stated in his crossexamination that the notice dt. 1206 2012 was replied by him but same was not brought by him. Since Bank did not grant sufficient loan to him therefore, he was unable to pay the loan installments. He stated that he is 12trh passed and his wife is graduate. He stated that Ex. PW1/2 and Ex. PW1/5 bear signatures of defendant No. 2.
12.The case of the plaintiff is that a personal loan was taken by the defendants on 06022009 and they have not repaid the same till date and thus the present suit has been filed. To prove its case the plaintiff proved the documents i.e. Power of Attorney in favour of PW1 Ex. PW1/1 ; Power of Attorney in favour of Sh. Sabu R.S. is Ex. PW1/1A ; Agreement for Personal Loan dated 06022009 Ex. PW1/2; Demand Promissory Note dated 06022009 Ex. PW1/3 ; Security Delivery letter dated 06022009 Ex. PW1/4 ; Balance confirmation letter dt. 01072009 Ex. PW1/5 ; Legal notice dt. 12 062012 Ex. PW1/6 ; Statement of account Ex. PW1/7.
13.The contention of the defendant is that the suit is barred by limitation since the deposit dated 6/8/2009 of Rs. 2,100/ has not been deposited by the defendants but have been deposited by the plaintiff as even 'self' instead of 'cash' is mentioned against it in the account statement Ex. PW1/7 and also the previous installments as Suit No. 469/2014 Page No. 8 of 13 shown in the statement of account by the plaintiff show deposit of Rs. 2,052/ each but deposit dated 6/8/2009 was of Rs. 2,100/. The loan documents were executed on 6/2/2009 and first installment was to begin from 6/3/2009. The loan was to be repaid in 30 months. Thus, as per Article 113 of the Schedule to the Limitation Act the period of limitation shall begin to run after the expiry of 30 months i.e from September 2011.
14.In this regard it was held as under in Shri Satish Kumar vs Smt. Reena Bhoumik decided on 18 April, 2012 by the Hon'ble Delhi High Court in RFA No.684/2006
5.A reading of the aforesaid paras shows that the trial Court has held that period of limitation of every loan granted is three years and the suit has to be filed under Article 19 within three years of the loan being granted. This reasoning of the trial Court is ex facie incorrect because loan can be granted to be repayable after a particular period of time of, let us say one year, two years, three years and so on. Limitation to recover the loan on the cause of action will arise on the date when the loan is not repaid i.e. not from the date of grant of the loan but after one year or two years or three years of grant of loan when cause of action will arise to file the suit for recovery of amount. The period of limitation will be three years from the date of default i.e. the date when the loan ought to have been repaid but is not repaid. Such suits for recovery of loan granted will not be governed by Article 19 of the Limitation Act, 1963, and in fact will be governed by Article 113 of the Limitation Act, Suit No. 469/2014 Page No. 9 of 13 1963 which states that a suit has to be filed within three years from arising of cause of action.
15.The present suit has been filed on 2/7/2012 and thus is within the period of limitation.
16.As regards the contention that the deposits made on 6/8/2009 were not made by the defendant has not been proved by the defendant. The defendant has neither put any suggestion to PW1 that the person who deposited the same vide deposit slip Ex PW1/D4 is not known to the defendant nor otherwise proved their said contentions. Thus, this content of the plaintiff is also without any merits.
17.The contention of the defendants that the document Ex. PW1/2 is manipulated is without any merits since merely because the font size of the typing on the first page is different from the other pages does not mean it is manipulated. The DW1 has admitted signatures of the defendant no. 2 on PW1/2 and admittedly DW1 is12th pass and defendant no. 2 is a graduate. They are not rustic villagers or illiterates or pardanashin ladies who are naïve. The contention of the defendants that signatures were obtained by the bank on blank papers is not believable looking at the educational qualifications of the defendants. The signatures of the defendants on the stamp paper of Ex. PW1/2 on two points shows that the document was executed in their presence.
Suit No. 469/2014 Page No. 10 of 13
18.The contention of the defendants that the stamp paper of Ex. PW1/2 is defective is without any merits as it is well known that the stamp papers are not provided by the bank to the person taking loan rather the borrower gets the stamp paper. Also, the backside of the stamp paper mentions the details of the stamp vendor. To prove this submission the defendants should have summoned the stamp vendor but they did not summon him. Thus, this submission is also not proved as per law by the defendants.
19.Another contention of the defendants is that the defendant no. 2 has been shown as coobligator and not as a surety on the loan transaction whereas the defendant no. 2 has no liability as even in the statement of account Ex. PW1/7 the account statement mentions the name of the defendant no. 1 alone. This contention remained unproved by the defendant since the defendant no. 2 did not enter the witness box and she would have been the best witness to prove this submission. Under S. 114 (g) of the Indian Evidence Act an adverse inference is drawn against this contention of the defendants. Further merely because only one name is mentioned in the statement of account does not mean that the defendant no. 2 is discharged of her liabilities especially when the loan documents Ex. PW1/2 bears her signatures on each page.
Suit No. 469/2014 Page No. 11 of 13
20.The contention that in the absence of a guarantor no loan can be granted by a bank is without any merits as it is for the bank to decide in which cases it wants a surety/guarantee and in which cases it does not.
21.The contention of the defendants that on document dated 1/7/2009 'and surbhi kaushik' was added later on or that writings of the names of the defendants are different is without any merits since no suggestion in this respect was put to PW1 by the defendants.
22.The plaintiff has duly proved the account statement Ex. PW1/7 as a certificate mandated under the Bankers Book Evidence Act has also been filed along with it.
In view of the foregoing discussion, the plaintiff has proved its case but the defendants have failed to rebut its case. Thus, the plaintiff is entitled to recover Rs. 75,838/ from both the defendants. These issues are decided accordingly.
23.Issue no. 4 Whether the plaintiff is also entitled to recover interest? If so, at what rate and for which period? OPP The plaintiff has also claimed the pendentelite and future interest on the decreetal amount @ 19.75 % p.a. with monthly rests and penal rate @ 2% per annum which in my opinion is very exorbitant and unreasonable. According to me, considering the current market Suit No. 469/2014 Page No. 12 of 13 rate the plaintiff is entitled to pendentelite and future interest @ 9 % p.a. on the decreetal amount from filling of the suit till the actual realization on the decreetal amount. This issue is decided accordingly.
24.Relief:
Hence a decree, for the recovery of Rs. 75,838/ along with pendentelite and future interest at the rate of 9 % p.a. from filling of the suit till the actual realization of the decreetal amount, is passed in favour of the plaintiff and against the defendant. Costs of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 04.08.2014 Civil Judge/Central05/Delhi
Suit No. 469/2014 Page No. 13 of 13