Indian Kanoon - Search engine for Indian Law

Delhi District Court

Branch Office At vs Shri Deepak Kumar on 27 January, 2020

             IN THE COURT OF SHRI SANJAY SHARMA­I :
               DISTRICT JUDGE (COMMERCIAL COURT)
                          EAST DISTRICT
                  KARKARDOOMA COURTS : DELHI

CS (Comm) No. 173/2019

Bank of Baroda
(A Banking Corporation)
Head Office at
Mandvi, Baroda

Branch Office at :
Shakarpur, Delhi - 110 092                 ................Plaintiff
            Versus

Shri Deepak Kumar
S/o Shri Bhagvat Ram
R/o F­62, Gali No. 3,
West Vinod Nagar,
Delhi - 110 092

Also at :
B­222 , Gali No. 2,
West Vinod Nagar,
Delhi - 110 092                            ................Defendant

        Date of institution              : 10.12.2019
        Date of reserving judgment       : 24.01.2020
        Date of judgment                 : 27.01.2020

JUDGMENT:

The plaintiff Bank has filed the present suit for recovery of Rs.7,78,254/­ against the defendant. The plaintiff Bank is having one of its Branch at Shakarpur Delhi and the present suit has been filed through its constituted attorney Shri Charan Singh who has been authorized to file the CS (Comm) No. 173/2019 Bank of Baroda Vs. Deepak Kumar 1 of 7 present suit vide power of attorney dt. 01.9.2007 and has been authorized to sign, verify and file the present suit.

2. In brief, the facts as averred in the plaint are that in February 2014, the defendant approached the plaintiff Bank for financial assistance of Rs.6,40,000/­ for his business under the scheme of Prime Minister's Employment Generation Programme, which was forwarded by the plaintiff Bank to the Khadi and Village Industries Commission at New Delhi, vide letter dt. 27.2.2014. The said Board, vide letter dt. 08.9.2014, recommended a financial assistance of Rs.6 lacs to the defendant and sent it to the plaintiff Bank alongwith relevant documents and KYC of the defendant. Accordingly, the plaintiff Bank sanctioned Rs.6 lacs to the defendant vide sanction letter dt. 03.11.2014 and disbursed the loan amount to him after the defendant executed the necessary loan documents in favour of the plaintiff Bank and duly accepted the terms and conditions of the sanction order. It has been averred that as per the terms and conditions of the recommendations from Delhi Khadi & Village Industries Board as well as Delhi District Task Force Committee and undertaking of the defendant, the subsidy amount of Rs.90,000/­ was claimed by the plaintiff Bank and the same was released to the defendant vide letter dt. 28.3.2015 from State Bank of India vide letter dt. 28.3.2015.

3. It has further been averred that the defendant utilized and availed entire loan facilities but failed to fulfill his obligations of repayment of the loan amount as per the sanction order, despite repeated demands and reminders. Thus, the account of the defendant was declared/degraded as non­performing asset on 01.2.2016. It has further been averred that as on 30.10.2017, an outstanding amount of CS (Comm) No. 173/2019 Bank of Baroda Vs. Deepak Kumar 2 of 7 Rs.7,78,254/­ remained due upon the defendant, i.e. Rs.6,76,354/­ as on 04.5.2016 with applied interest and Rs.1,01,900/­ being un­applied interest from 05.5.2016 to 30.10.2016 @ 10.4% per annum.

4. The plaintiff Bank issued a legal notice 09.5.2016 demanding the outstanding loan amount from the defendant. However, despite receipt of the said notice, the defendant failed to pay the outstanding dues. Even the officials of the plaintiff Bank visited the given address of the defendant but he was not found working there or doing any business. Hence the present suit. It has been claimed that a sum of Rs.7,78,254/­ is due upon the defendant inclusive of the principle and the prevailing rate.

5. Summons of the suit were issued to the defendant but he was not found residing at the given address. Since the plaintiff Bank was not having any other address of the defendant, it moved an application under Order 5 Rule 20 CPC for service through publication which was allowed. Defendant was served through publication in the Hindi daily newspaper 'Veer Arjun' dt. 23.5.2019. However, the defendant failed to appear or file the WS and accordingly, vide order dt. 26.7.2019, he was proceeded against ex­parte.

6. The plaintiff Bank led its evidence and examined its Chief Manager Shri Santosh Kumar as PW1 who tendered his evidence by way of affidavit Ex.PW1/A and relied upon documents Ex.PW1/1 to PW1/31 which are as under :

Ex.PW1/1 is the Power of Attorney dt. 21.7.2018 given by the Bank in favour of PW1.

Ex.PW1/2 is the copy of statement of Savings account and Loan account of the defendant alongwith certificate U/S 2(A) of the Banker's CS (Comm) No. 173/2019 Bank of Baroda Vs. Deepak Kumar 3 of 7 Book Evidence Act and certificate U/S 65­B of the Evidence Act.

Mark PW1/3 is letter dt. 27.2.2014 written by the plaintiff Bank to Khadi & Village Industries Commission at Delhi.

Mark PW1/4 is letter dt. 08.9.2014 from Delhi Khadi & Village Industries Board to the Plaintiff.

Mark PW1/5 is another letter dt. 22.9.2014 from Regional Office to Shakarpur Branch of plaintiff.

Mark PW1/5 is another letter dt. 23.6.2014 written by Development Officer PMEGP to the defendant.

Mark PW1/7 (colly.) is the application of the defendant for financial assistance with copies of KYC documents.

Mark PW1/8 is the undertaking given by the defendant. Mark PW1/9 are the minutes of meeting of District Task Fore Committee on PMEGP dt. 13.8.2014.

Mark PW1/10 is the Registration Certificate of Establishment of the defendant dt. 24.9.2014.

Mark PW1/11 is the letter dt. 09.10.2014 written by the plaintiff to the defendant.

Ex.PW1/12 is the original sanction letter dt. 03.11.2014 issued by the plaintiff and duly accepted by the defendant.

Mark PW1/13 is the pre­sanction inspection report of the plaintiff Bank dt. 14.10.2014.

Mark PW1/14 is the proforma invoice dt. 27.10.2014. Mark PW1/15 (colly.) are the covering letter dt. 10.11.2014 alongwith copy of DD dt. 10.11.2014.

Ex.PW1/16 is original DP Note for Rs.6 lacs.

Bank of Baroda Vs. Deepak Kumar 4 of 7 Ex.PW1/17 is the Composite Hypothecation Agreement. Ex.PW1/18 is the letter of installment with acceleration Clause. Ex.PW1/19 is the Composite Undertaking cum Declaration . Ex.Pw1/20 is the letter of authority to make payment directly to the dealers.

Ex.PW1/21 is Form 135.

Ex.PW1/22 is the Attestation Memo dt. 03.11.2014. Mark PW1/23 (colly.) is the Application Form dt. 26.11.2014 of the defendant to claim the subsidy from KVIC alongwith receipt dt. 26.11.2014.

Mark PW1/24 is the copy of letter dt. 06.1.2015 for disbursement of the loan amount by the defendant.

Mark PW1/25 is the copy of letter dt. 07.1.2015 written by the plaintiff to Delhi Khadi Village Industries Board.

Mark PW1/26 is Post sanction inspection report dt. 12.2.2015. Mark PW1/27 is the Letter dt. 28.3.2015 from SBI for forwarding the subsidy amount to the plaintiff.

Mark PW1/28 (colly.) are the Letters written by the defendant to the plaintiff Bank dt. 12.5.2015, 28.8.2015, 11.1.2016, 04.3.2016.

Mark PW1/29 (colly.) are the Demand letters and reminders written by the plaintiff Bank dt. 20.8.2015, 17.2.2016, 28.4.2016, 06.5.2016, 23.8.2016.

Legal notice dt. 09.5.2016 issued by the plaintiff to the defendant alongwith postal receipt are Ex.PW1/30 (colly.).

Mark PW1/31 is the Visit report dt. 09.11.2016 of the Officer of the plaintiff Bank at the address of the defendant.

Bank of Baroda Vs. Deepak Kumar 5 of 7

7. I have heard Shri SP Singh - Ld. Counsel for the plaintiff and have also gone through the records of the case.

8. The evidence led by PW1 has gone unrebutted and unchallenged and there is nothing on record to disbelieve the same. PW1 has proved the Power of Attorney executed in his favour by the plaintiff Bank as Ex.PW1/1. He deposed that defendant applied for the loan for enhancing his business vide application form alongwith KYC documents Mark PW1/7 (colly.) and Mark PW1/8 is the undertaking given by him. The loan was sanctioned to defendant vide sanction letter dt. 03.11.2014 Ex.PW1/12. PW1 further proved original DP Note for Rs.6 lacs sanctioned to the defendant, Composite Hypothecation Agreement duly signed by the defendant, Letter of installment with acceleration Clause and Composite Undertaking cum declaration as Ex.PW1/16 to PW1/19 respectively. He further proved four letters written by the defendant stating his inability to repay the loan amount, as Mark PW1/28 (colly.) and further proved the demand letters and reminders written by the plaintiff Bank to the defendant, as Mark PW1/29 (colly.). It was also deposed by him that the defendant had also claimed the subsidy amount of Rs.90,000/­ which was released to him vide letter dt. 28.3.2015 which is Mark PW1/27. He further deposed that the defendant failed to adhere to the schedule of repayment of loan and thus, a legal notice notice was served upon him, Ex.PW1/30. He also proved the statement of account and loan account in respect of the defendant showing that a balance of Rs.6,76,354/­ was due upon him alongwith applied interest, due to his failure to repay the loan amount. It also shows that the defendant withdrew the loan amount from his account from time to time. It was also deposed by PW1 that the CS (Comm) No. 173/2019 Bank of Baroda Vs. Deepak Kumar 6 of 7 account of the defendant was classified as 'Non­performing Asset' in accordance with the guidelines of the RBI.

9. The plaintiff Bank filed the present suit on 06.11.2017. Thus, the suit was filed within the period of limitation. This Court also has the pecuniary as well as the territorial jurisdiction to try and dispose of the present suit. It was rightly contended by Ld. Counsel for the plaintiff Bank that despite the execution of the Composite Hypothecation Agreement dt. 03.11.2014, the defendant failed to pay the loan amount and thus, the plaintiff had a valid cause of action against it.

10. In view thereof, it is held that the defendant is liable to pay to the plaintiff Bank a sum of Rs.7,78,254/­, i.e. the principle amount alongwith implied interest for the period ending 30.10.2017. The plaintiff Bank is also entitled to interest @ 10.4% per annum on the said amount w.e.f. 01.11.2017 till the date of realization of the said amount.

11. Accordingly, the suit of the plaintiff Bank is decreed in its favour and against the defendant and it is directed that the defendant shall pay a sum of Rs.7,78,254/­ to the plaintiff Bank alongwith interest @ 10.4% per annum w.e.f. 01.11.2017 till the realization of the said amount. Costs of the suit are also awarded to the plaintiff. Decree Sheet be prepared accordingly.

        File be consigned to Record Room.           SANJAY
                                                                 by SANJAY
                                                                 SHARMA
                                                    SHARMA       Location: Delhi
ANNOUNCED IN OPEN COURT                                          Date: 2020.01.27
                                                                 16:23:02 +0530

ON 27th day of January 2020
                                             (SANJAY SHARMA­I)
                                     District Judge (Commercial Court)
                                                 East District
                                             Karkardooma Courts, Delhi


CS (Comm) No. 173/2019
Bank of Baroda Vs. Deepak Kumar                                          7 of 7