Delhi District Court
Shiv Shankar Gupta vs Standad Chartered Bank on 20 September, 2010
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IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:CENTRAL
ROOM NO.32:TIS HAZARI COURTS :DELHI
CS NO: 758/03
ID NO: 0240160425922003
SHIV SHANKAR GUPTA
S/o Late Shri Har Prasad Gupta
R/o 1853 C / 10,
Govindpuri Extension,
Kalkaji,
New Delhi19. .....Plaintiff
vs.
1. STANDAD CHARTERED BANK
Through its Manager Delhi Zone,
Having its Head Office at 17,
Parliament Street,
Opposite Police Station Parliament Street,
New Delhi.
2. DIMPLE MOTORS,
Through its proprietor / partner,
Shri Tejinder Pal Singh Singla,
Shop No.2, Pocket A2/102,
Sector 3, Rohini, Delhi. .......Defendants
SUIT FOR DECLARATION , POSSESSION, DAMAGES,
MANDATORY AND PERMANENT INJUNCTION
DATE OF INSTITUTION : 16.12.2003
DATE OF FINAL HEARING : 20.09.2010
DATE OF JUDGMENT : 20.09.2010
JUDGMENT
1. This suit has been filed by plaintiff loanee against the defendant no.1 bank apart from defendant no.2 for seeking decree of declaration to the effect that @contd/...
2the sale of car deed of Tata Safari Car No. DL1CA6702 executed by defendant no.1 in favour of defendant no.2 as Null & Void. A decree of possession of this car is also sought & in alternative recovery of Rs.5.50 lacs is sought. An additional decree of damage of Rs.5 lacs is also sought qua alleged wrongful and illegal dispossession of the vehicle. Decree of permanent injunction against the defendant is also sought against further sale of the car apart from mandatory injunction that documents of the plaintiff lying in the car be returned and sale document executed qua sale of vehicle by defendant no.1 in favour of defendant no.2 be canceled.
2. Case of the plaintiff as per plaint is that he got issued a credit card from defendant no.1 bank in the year 2002 apart from opening current account with them having No.5220535094p. The credit card issued by defendant no.1 bank in favour of plaintiff had a sanctioned limit of Rs.2.92 lacs and agreed rate of interest was 15% per annum and it was valid for 50 months. Plaintiff was depositing the amount regularly up to January'2003 but from February'2003 he could not make the deposits for three months and this fact was brought to the notice of the bank. He was assured that he has not yet @contd/...
3reached his credit limit and after reaching the credit limit , he would be duly informed. He was also told that he can pay the amount within three months thereafter. As per plaint, plaintiff continued to use the credit limit but on 12/5/03, plaintiff received a letter from the bank which threatened him with repossession of his aforesaid car on his failure to pay Rs.44,954/ within three days. Even though plaintiff's son Sh. Pawan Gupta reached the bank with the money but the bank official told him that his account has been closed.
3. Thereafter between 25.5.2003 and 29.5.2003 plaintiff was hospitalised. On 2.6.03 when plaintiff's son Sh. Pawan Gupta was driving in Bhikaji Kama Place, 8 persons came in white Sumo Car, armed with knife and iron rods and threatened the plaintiff's son and forcibly took away the aforesaid vehicle. They also took away with them Rs.50,250/ apart from MCD Trade License as well as Registration , passport, pan card and ration card. Complaint was lodged with PS R.K. Puram on the same date but no FIR was registered by the PS. Another complaint was made on 15.6.03. The defendant no.1 bank told the plaintiff that in case dues are not cleared, plaintiff 's vehicle shall be sold on 18.6.03. The bank refused to receive the money in installments.
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4Aggrieved by this incident plaintiff filed suit for permanent injunction to restrain them from selling the vehicle .
4. The suit was subsequently dismissed as withdrawn as vehicle was sold by the defendant no.1 bank for Rs.3.04 lacs to defendant no.2. As per plaintiff , his vehicle could fetch Rs.5.50 lacs in the open market. In this backdrop the suit in hand was filed. Subsequently a FIR No. 576/03 was registered with PS R.K. Puram followed by filing of a cancellation report.
5. Upon service of summons it was contested by defendant no.1 by filing a detailed WS wherein it is pleaded that the suit deserves to be dismissed for being devoid of merits since plaintiff has concealed material facts. On merits it is pleaded that plaintiff entered in to a Mileage Account Limit Agreement (Over Draft Agreement). Plaintiff furnished his Tata Safari Vehicle as a security for this Over Draft Facility availed by him. As per defendant no.1 bank, plaintiff undertook to pay a minimum 5% monthly on the outstanding balance. He failed to make the payment despite repeated requests and reminders and finally the bank was constrained to recall the over draft facility.
6. Entire dues were demanded as per statement of account. But still neither the @contd/...
5demands were cleared nor the plaintiff even contacted the bank. It is pleaded that finally they were constrained to implement the penal clause of the over draft facility agreement by taking the peaceful possession of the vehicle on 2.6.03 as per terms and condition of the agreement. Even pre sale notice was sent to him to clear the outstanding due but neither the payment was made nor plaintiff contacted the bank. Vehicle was sold at the best price to defendant no.2 and amount was credited in the over draft account of the plaintiff on 3.7.03. It is pleaded that since every act was done as per the terms and condition of the over draft facility agreement , plaintiff is not entitled to any relief claimed under this suit. With these pleas, dismissal of the suit was prayed.
7. Separate WS was filed by defendant no.2 wherein dismissal of the suit was prayed for want of privity of contracts. It is claimed that vehicle was purchased under a bid which was highest.
8. Separate replication was filed by the plaintiff wherein plaintiff reiterated its entire case and denied the objections taken in WS filed by both the defendants.
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9. Upon completion of pleadings following issues were framed by Ld. Predecessor on 17.8.2005
10.ISSUES
1.Whether the plaintiff has not made repayment as per the monthly statement of account to the defendant no.1 if so, its effect ? (OPD)
2.Whether there is no privity of contract between the plaintiff and the defendant no.2 ? (OPD 2)
3.Whether the plaintiff is entitled to decree for declaration , possession and damages as prayed for in para A,B,C of the prayer of the plaint? (OPP)
4.Whether the plaintiff is entitled to permanent injunction and mandatory injunction as prayed for in para DE of the prayer of the plaint? (OPP)
5.Relief
11.To prove his case plaintiff examined himself as PW1 apart from examining his son Sh. Pawan Gupta as PW2. On the contrary defendant no.1 bank examined Sh. S. Kaushar Abbass as DW1.
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12.I have heard LD. Counsel Sh. Nitin Kakkar advocate for plaintiff and Ld. Counsel Sh. Puneet Bhalla advocate for defendant No.1. I have also carefully perused the entire judicial file.
13.During the course of trial on an application , possession of the vehicle was ordered to be given back to the plaintiff . However, this order was set aside by Hon'ble High Court vide order dated 10.9.2004 whereby above order of Ld. Predecessor was set aside.
14.In his deposition as PW1, plaintiff deposed on the lines of the plaint vide affidavit Ex. PW1/A. He has exhibited registration certificate of vehicle Tata Safari No. DL1CF6702 as Ex. PW1/1 and insurance cover as Ex. PW1/2, letter of defendant bank as Ex.PW1/3, documents of hospital as Ex. PW1/4A to Ex. PW1/4C, copy of complaint made with the police as Ex.PW1/5, copy of the plaint is Ex.PW1/6, affidavit filed before LD. Civil Judge as Ex. PW1/7, written statement as Ex.PW1/8, copy of information sheet received from Transport Authority as Ex.PW1/9.
15.In his detailed cross examination , he conceded signing of car credit cum hypothication agreement of vehicle in question Ex. PW1/D1 on 3.4.2002. He @contd/...
8accepted that he took over draft facility for 2,92,500/ under which he was supposed to pay 5% of the balance each month. He claimed that he was making regular payment, but he accepted that he neither placed the payment receipt on record nor same are in his possession. He accepted that as per Statement of Account Ex. PW1/D3 his cheque no. 087202 was dishonoured . Even though he conceded in his plaint that he did not make any payment in February, March and April 2003 but he denied the suggestion of LD. Counsel for defendant in this regard during his cross examination. He denied receipt of letters Ex. PW1/D3 , D4 and D6 from defendant bank. He accepted his signatures on power of attorney PW1/D5. He accepted that repossession inventory Ex. PW1/D7 bears signature of his son . He accepted that no document of his criminal complaint is placed or proved on record. He accepted that he has no document to show that he offered to pay Rs.44,954/ to the bank as claimed. He also accepted that he has not placed or proved on record any valuation report that his vehicle could have fetch Rs.5.50 lacs in the market.
16.In his deposition as PW2 , plaintiff's son Sh. Pawan Kumar supported his @contd/...
9father's case. In his cross examination, he accepted that he signed vehicle repossession inventory memo Ex. PW1/D7, but claimed that it was blank. He accepted that he has not mentioned about signing blank document before any authority.
17.In his deposition as DW1, vide affidavit Ex. D1, Sh. S. Kaushar Abbas deposed on the lines of WS. He has exhibited power of attorney as Ex.DW1/A, car creditcumhypothecation agreement dated 3.4.2002 as Ex.DW1/B, Original copy of irrevocable power of attorney dated 3.4.2002 as Ex. DW1/C, the copy of statement of account as Ex. DW1/D, the copy of reminders dated 17.3.2003 and 13.04.2003 are Ex. DW1/E and F, postal receipts as Ex. DW1/E1 and F1, copy of notice dated 15.5.2003 as Ex. DW1/G and postal receipt as Ex.DW1/G1, copy pre sale notice dated 12.6.2003 as Ex.DW1/H and telegraphic postal receipt as Ex.DW1/H1.
18.In his cross examination , he stated that he is working with the bank since 2002 and is aware of the case only as per record. He accepted the suggestion of the plaintiff that the vehicle was repossessed by the defendant bank as per rights vested with the bank under terms and conditions of Milage @contd/...
10Account Agreement / Car Credit cum Hypothication agreement for over draft facility. He accepted that he in such kind of loans irrevocable power of attorney is executed in favour of the bank by the loanee. He accepted that inventory Ex. PW1/D7 was prepared at the time of repossession of the vehicle.
19.Now I shall dispose off individual issues framed in this case.
20.While hearing the final arguments in this matter it was found that even though plaintiff is seeking relief worth Rs.13,54,390/ but has paid court fees on only Rs.10,50,390/ by consolidating the reliefs sought . Instead of paying individual court fees on each relief, court fees on cumulative amount was paid and consequently instead of paying around Rs.20,250/ he paid court fees of only Rs.12,500/. Plaintiff was asked to make the deficiency good. Instead of filing the balance court fee of Rs.7,750/ he filed court fees of only Rs.2,500/ with a request of not pressing the reliefs / prayers a,d and f valuing Rs.3,04,260/. These three reliefs were allowed to be dropped and as such fresh additional court fee filed was found sufficient. ISSUE NO. 2
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2.Whether there is no privity of contract between the plaintiff and the defendant no.2 ? (OPD 2)
22.It is admitted case of the plaintiff that there is no privity of contracts between him and defendant no.2. The only reason as to why defendant no.2 was impleaded in this case is that he had purchased the Tata Safari vehicle in question in a bid offered by defendant no.1 bank. As such defendant no.2 is a bonafide purchaser of the vehicle. In such a scenario the question of taking the vehicle back from defendant no.2 does not arise. Plaintiff can not use relieves of injunction for enforcing rights and availing remedies which can be compensated / addressed in money terms. As per Section 41 (P) of the Specific Act , the reliefs sought are not the efficacious remedies available in law. Issue is accordingly decided.
ISSUE NO.1
23.
1.Whether the plaintiff has not made repayment as per the monthly statement of account to the defendant no.1 if so, its effect ? (OPD)
24.As far as facturm of non payment by plaintiff is concerned, it is not only admitted in the plaint but it is also admitted by the plaintiff in his cross @contd/...
12examination. The authenticity of the statement of account has not been denied by the plaintiff during the course of entire trial. Plaintiff admits that he was supposed to pay 5% of the balance every month but he could not make the payment owing to some problems. Once the facturm of non payment is accepted apart from accepting the fact that over draft facility was availed under an agreement, the coercive process adopted by the defendant bank are natural consequences in the admitted terms and conditions. Admittedly the only surety which the plaintiff gave qua availing of the over draft facility with the defendant bank is his vehicle. Having accepted so apart from accepting that irrevocable power of attorney was executed by plaintiff in favour of the bank, defendant bank can not be faulted upon for on acting under the terms of the agreement. This issue is also decided accordingly.
25.ISSUE NO.3
3.Whether the plaintiff is entitled to decree for declaration , possession and damages as prayed for in para A,B,C of the prayer of the plaint? (OPP)
26.Under this issue first three prayers of the plaint are covered. As referred to supra, prayer A has been dropped by the plaintiff qua decree of declaration.
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13As far as reliefs qua decree of possession of the car in question and recovery of Rs.5 lacs damages are concerned , it is argued that the officials of the defendant bank were not within their right to seize the same . It is argued that as per the Car Credit - cumHypothication agreement Ex.PW1/1 the loan was meant only for purchasing a car and since the vehicle in question was pre owned by the plaintiff , no hypothication could have been executed under the said scheme. It appears that Ld. Counsel for plaintiff is reading clause 1 of the agreement out of context. The same clause also talks of refinancing of a purchased car. There appears to be an endeavour to mix it simplicitory car loan with the Car Credit cum Hypothication Loan. Under a conventional car loan money is borrowed / loaned for purchasing of a new / old car. However, under the scheme in hand , the loan is raised by the owner of a car which is preowned by him. The registration certificate which earlier stood in the name of the plaintiff was subsequently got recasted with hypothication endorsement with Transport Department Records.
27.Attention of this court is drawn to case titled Kiran Singh Vs. State , Crl. Writ Petition No.117002 dated 15.9.03. The cause of action to file the suit arose @contd/...
14on 2.6.2003 i.e. more than three months prior to passing of this judgment. Observation made by Hon'ble Delhi High Court in this judgment qua repossession of vehicles by finance company can not have retrospective application.
28.As discussed supra, loan agreement is not denied , default is admitted , receipt of demand notice and subsequent non payment is also admitted. Hypothication of vehicle in favour of bank and execution of SPA is also admitted. As per documents proved by the defendant bank on record, notice is prior to the repossession of the vehicle and sale of the vehicle were duly issued to the plaintiff and vehicle was repossessed as per law in exercise of SPA Ex. PW1/D5. In this back drop it can not be said defendant bank was not within its legal right to repossess the vehicle. Even though after the repossession plaintiff was given opportunity to clear the dues and to take the vehicle back but admittedly no attempt was made by the plaintiff in this regard.
29.I also find no strength in the plea of plaintiff that his vehicle was worth Rs.9 lacs when purchased and was worth Rs.5.50 lacs when he took the loan @contd/...
15against the same from the defendant bank and as such it could not have been sold for Rs.3.40 lacs. The gap between availing of loan and sale of vehicle is more than one year. Moreover, in such like distress sale, it can not be expected that the vehicle will be bought by the bidder at a premium. Even if plaintiff was of the view that his vehicle was sold at a lower value, he should have been more diligent in either not allowing the situation to boil to a point where his vehicle could be repossessed. Even if repossessed , he could have salvaged his vehicle by clearing his dues admittedly and legally payable to the bank. As such I see no strength in the plea of the plaintiff that he is entitled to possession of the vehicle bank or in alternative a sum of Rs.5.50 lacs. It also does not warrant grant of damages of Rs.5 lacs to the plaintiff since whatever defendant bank did , it did to enforce their legal rights to get their legal dues from the plaintiff . Issued is answered accordingly. ISSUE NO.4
30.
4.Whether the plaintiff is entitled to permanent injunction and mandatory injunction as prayed for in para DE of the prayer of the plaint? (OPP)
31.As regards claim of the plaintiff that his other documents were lying in the @contd/...
16car, when it was taken , there is nothing on record to show that any such document was lying in the car. Admittedly signed inventory Ex. PW1/D7, does not contain any mention of these articles. Also there is nothing on record to show that in criminal complaint made by plaintiff to any police officials, he mentioned these articles. Further more there is nothing on record to show that plaintiff applied any of the numerous government authorities which issued him passport, PAN card. ration card etc for issuance of any duplicated thereof. In this backdrop I have no hesitation in concluding that plaintiff is entitled to any relief prayed by him. Issued stands decided accordingly RELIEF
32. In the light of the aforesaid discussion, plaintiff does not deserve any relief from the court and as such suit of the plaintiff stands dismissed with cost. Decree sheet be prepared accordingly and file be consigned to RR. ANNOUNCED IN THE OPEN COURT ON: 20.9.2010 (SURINDER S. RATHI) ADJ:07:CENTRAL DELHI @contd/...
17CS NO: 758/03 ID NO: 0240160425922003 SHIV SHANKAR GUPTA vs. STANDAD CHARTERED 20.9.2010 Pr: Ld. Counsel Sh. Nitin Kakkar advocate for plaintiff Ld. Counsel Sh. Puneet Bhalla advocate for defendant bank Plaintiff was asked to make the deficiency goods. Instead of filing the balance court fee of Rs.7,750/ he filed court fees of only Rs.2,500/ with a request of not pressing the reliefs / prayers a,d and f valuing Rs.3,04,260/. These three reliefs were allowed to be dropped and fresh court fee filed was found sufficient.
FA heard further.
Vide a separate judgment of the day, suit of the plaintiff stands dismissed with cost. Decree sheet be prepared accordingly and file be consigned to RR.
(SURINDER S. RATHI) ADJ:07:CENTRAL DELHI 20.9.10 @contd/...
18DECREE IN SUIT FOR POSSESSION (Order XX Rule 7 of the Code of Civil Procedure) IN THE COURT OF SHRI SURINDER S. RATHI, ADJ/CENTRAL-7 DELHI.
CS NO: 758/03 ID NO: 0240160425922003 SHIV SHANKAR GUPTA S/o Late Shri Har Prasad Gupta R/o 1853- C / 10, Govindpuri Extension, Kalkaji, New Delhi-19. .....Plaintiff vs.
1. STANDAD CHARTERED BANK Through its Manager Delhi Zone, Having its Head Office at 17, Parliament Street, Opposite Police Station Parliament Street, New Delhi.
2. DIMPLE MOTORS, Through its proprietor / partner, Shri Tejinder Pal Singh Singla, Shop No.2, Pocket A-2/102, Sector -3, Rohini, Delhi. .......Defendants SUIT FOR DECLARATION , POSSESSION, DAMAGES, MANDATORY AND PERMANENT INJUNCTION DATE OF INSTITUTION : 16.12.2003 DATE OF FINAL HEARING : 20.09.2010 DATE OF JUDGMENT : 20.09.2010 This suit coming for final disposal before me in the presence of LD. Counsel Sh. Nitin Kakkar advocate for plaintiff Ld. Counsel Sh. Puneet Bhalla advocate for defendant No.1 . It is ordered that suit of the plaintiff is dismissed on merits with costs.
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Costs of the suits
Plaintiff Defendant
Stamp for plaint NIL Stamp for power NIL
Stamp for power NIL Stamp for exhibits NIL
Stamp for exhibits NIL Stamp for petition NIL
Pleader's fee NIL Pleader's fee NIL
Subsistence for witness NIL Subsistence for witness NIL
Commissioner's fee NIL Commissioner's fee NIL
Service of process NIL Miscellaneous NIL
Miscellaneous NIL
Total NIL Total NIL
Given under my hand and the seal of this court, Dated 20.9.2010.
SEAL ADDL. DISTRICT JUDGE
CENTRAL-07,DELHI
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