Delhi District Court
State Bank Of India vs Sh. Subhash Rathi on 15 March, 2014
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTRICT & SESSIONS JUDGE (NORTHWEST),
ROHINI COURTS, DELHI
CS No. 5/14/11
State Bank of India
Having its Central Office at Madam Cama Road,
Nariman Point, Mumbai
and various branches throughout India including
one at Pooth Khurd, Delhi and having its
stressed assets recovery branch at 23, Nazafgarh Road,
New Delhi. ......Plaintiff
Versus
Sh. Subhash Rathi
Prop. M/s. Som Motors
CN5, 34/22, Bawana Road
Samaypur Badli,
Delhi
Also at :
H. No. 1142, Sector - 31,
Pragati Nagar, Sonipat
Haryana .......Defendant
Date of institution : 04.04.2011
Date of hearing arguments : 13.03.2014
Date of decision : 15.03.2014
CS No. 5/14/11 Page 1 of 28
JUDGMENT
1. The plaintiff has filed the present suit for the recovery of Rs. 3,64,422/ along with pendentlite and future interest against the defendant averring therein that the defendant had approached the plaintiffbank for financial assistance at Pooth Khurd Branch under Cash Credit Facility and the proposal of the defendant was received by the plaintiffbank and on scrutiny of the proposal of the defendant, the plaintiff sanctioned, lent and released a fresh Cash Credit Limit/loan of Rs. 6,00,000/ only (Rupees Six Lacs only) on 09.04.2008 which was availed by the Defendant as per requirements under the terms and conditions contained in the documents executed by the defendant.
2. It is further averred that on consideration of availing of the aforesaid loan the defendant signed, executed and delivered the following documents: a. Agreement of LoanCumHypothecation dated 09.04.2008. b. Letter of Arrangement dated 09.04.2008.
3. It is further averred that the defendant at the time of availing of above said C.C. Limit, hypothecated all stocks, receivable and other current assets besides collateral security worth of Rs. CS No. 5/14/11 Page 2 of 28 2,75,000/ in the form of STDR.
4. It is further averred that the defendant had agreed to comply with the terms and conditions on which the loan/Cash Credit Limit was sanctioned to him by the PlaintiffBank. It was also agreed by the defendant that in case of default or nonadhering to the financial discipline, the whole of the amount due shall become payable by him to the plaintiffbank in the lump sum at once or at any other time at the option of the plaintiffbank.
5. It is further averred that all the above documents were duly filed read over and explained to the defendant and he put his signatures on these documents voluntarily and consciously after understanding its implications and delivered the same to the plaintiffbank.
6. It is further averred that an account was opened in the books of account of the plaintiffbank at Pooth Khurd, Delhi in the name of defendant, which was being operated by defendant and thus defendant is liable to repay the amounts outstanding in the said account.
CS No. 5/14/11 Page 3 of 28
7. It is further averred that the defendant failed to adhere to the financial terms and conditions and defendant failed to pay the installments regularly, whereby the account of the defendant became irregular and the officers of the plaintiffbank had been contacting the defendant time and again to impress upon him to regularize the account but to no effect.
8. On these allegations, the plaintiff has filed the present suit for the recovery of Rs. 3,64,422/ along with pendentlite and future interest and cost of litigation against the defendant.
9. The defendant contested the case of the plaintiff and filed his written statement thereby denying the contents of the plaint. The defendant in his written statement has submitted that the defendant never availed any credit facility from the plaintiff. In his written statement the defendant in reply to para No. 5 of the plaint has submitted that he never executed any document on the date as alleged, however, some printed but blank papers were got signed by the plaintiff. It is further stated in the WS that the defendant raised objection to such documentation but the officer concerned satisfied the defendant that it was merely a formality. The defendant specifically denied having ever executed any document CS No. 5/14/11 Page 4 of 28 by hypothecating his entire/all stock receivable and other current asset. The defendant has submitted that the alleged documents were blank which have lately been filled up by the plaintiff to their own suiting. It is further stated in the WS that the defendant is an Engineer Graduate and even the plaintiff did not allow him to fill up the blanks, neither allowed/delivered any photocopy of the same allegedly to have been executed. In his reply to para No. 10/11 of the plaint, the defendant has specifically denied that the documents were duly filled up at the time of their alleged execution.
10. The plaintiff filed the replication and denied the contentions raised by the defendant in the WS and reaffirmed those as stated in the plaint.
11. From the pleadings of the parties and documents on record, following issues were framed on 17.12.2011 :
1. Whether the plaintiff is entitled for a decree of Rs. 3,64,422/ along with pendente lite and future interest at contractual rate of interest from the filing of the suit till its realisation? Opp.
2. Whether this court has no territorial jurisdiction to entertain the present suit? OPD
3. Whether there is no cause of action in favour of the plaintiff? OPD CS No. 5/14/11 Page 5 of 28
4. Whether there is no privity of contract between the parties as alleged? OPD.
5. Relief, if any.
12. In order to prove its case, the plaintiff examined two witnesses viz. PW1 Sh. N.K. Dang, Assistant Manager/City Case Officer and PW2 Sh. S.B. Singhal, Deputy Manager, P.P.G. Department and both the PWs tendered their affidavits in evidence as Ex. PW1/A and Ex. PW2/A respectively.
13. Besides his affidavit, PW1 also proved various documents on record i.e. Exs. PW1/1 to PW1/7, Marks A to D and Marks X to Z. Document Ex. PW1/1 is the loan application form, Ex. PW1/2 is agreement of loancumhypothecation dated 09.04.2008, Ex. PW1/3 is the arrangement letter dated 09.04.2008, Ex. PW1/4 is letter dated 27.07.2012, Ex. PW1/5 is legal notice, Ex. PW1/6 is the original postal receipts, Ex. PW1/7 is the statement of accounts and Mark A to D are the copies of gazette notifications. Copy of ITRs of defendant are Mark X, copy of telephone bill of defendant is mark Y and copy of stock statement of defendant is Mark Z.
14. Both the PWs were duly cross examined by the Ld. Counsel CS No. 5/14/11 Page 6 of 28 for the defendant.
15. On the other hand, the defendant has examined himself as DW1 and tendered his affidavit in evidence as Ex. DW1/A in support of his defence.
16. DW1 was duly cross examined by Ld. Counsel for the plaintiff.
17. I have heard Ld. Counsel for both the parties and have gone through the entire record carefully.
18. Considering the pleadings, the issues framed, evidence led and arguments addressed by the Ld. Counsel for both the parties, the issuewise findings are as under : ISSUE No. 2 :
"Whether this court has no territorial jurisdiction to entertain the present suit? OPD"
19) This issue is taken up at the first instance for determination CS No. 5/14/11 Page 7 of 28 and adjudication inasmuch as it will affect the jurisdiction of this Court. The onus to prove this issue is upon the defendant.
20) The plaintiff has stated in the plaint that the PlaintiffBank works for gain at Delhi, the PlaintiffBank released facility which was availed by Defendant and was to be repaid by him to the PlaintiffBank at Pooth Khurd Branch and the Defendant signed, executed and delivered the documents to the PlaintiffBank at Pooth Khurd Branch, therefore, this court has jurisdiction to try and entertain the present suit.
21) The defendant has not specifically denied the above said averments in the written statement. Even otherwise no arguments has been addressed by the Ld. Counsel for the defendant on this issue. In view of the specific averments in the plaint regarding the jurisdiction as well as regarding the fact that this court has jurisdiction to entertain the suit which has not been denied, this court accordingly decides this issue against the defendant and in favour of the plaintiff.
ISSUE No. 1 :
CS No. 5/14/11 Page 8 of 28
"Whether the plaintiff is entitled for a decree of Rs. 3,64,422/ along with pendente lite and future interest at contractual rate of interest from the filing of the suit till its realisation? OPP".
22) The onus to prove issue No. 1 is upon the plaintiff.
23) The plaintiff has stated in the plaint that the defendant had approached the plaintiffbank for financial assistance at Pooth Khurd Branch under Cash Credit Facility. The proposal of the Defendant was received by the PlaintiffBank and on scrutiny of the proposal of the Defendant, the plaintiff sanctioned, lent and released a fresh Cash Credit Limit/loan of Rs. 6,00,000/ only (Rupees Six Lacs only) on 09.04.2008 which was availed by the Defendant as per requirements under the terms and conditions contained in the documents executed by the defendant.
24) It is further averred in the plaint that on consideration of availing of the aforesaid loan the defendant signed and executed and delivered the following documents: a. Agreement of LoanCumHypothecation dated 09.04.2008. b. Letter of Arrangement dated 09.04.2008.
25) It is further averred in the plaint that the defendant at the time of CS No. 5/14/11 Page 9 of 28 availing of above said C.C. Limit hypothecated all stocks, receivable and other current assets besides collateral security worth Rs. 2,75,000/ in the form of STDR.
26) It is further averred in the plaint that the defendant had agreed to comply with the terms and conditions on which the loan/Cash Credit Limit was sanctioned to him by the PlaintiffBank. It was also agreed by the defendant that in case of default or nonadhering to the financial discipline, the whole of the amount due shall become payable by him to the plaintiffbank in the lump sum at once or at any other time at the option of the plaintiffbank.
27) It is further averred in the plaint that all the above documents were duly filed read over and explained to the defendant and he put his signatures on these documents voluntarily and consciously after understanding its implications and delivered the same to the plaintiff bank.
28) It is further averred in the plaint that an account was opened in the books of account of the plaintiffbank at Pooth Khurd, Delhi in the name of defendant, which was being operated by defendant and thus defendant is liable to repay the amounts outstanding in the said account. CS No. 5/14/11 Page 10 of 28
29) It is further averred in the plaint that the defendant failed to adhere to the financial terms and conditions and defendant failed to pay the installments regularly, whereby the account of the defendant became irregular. The officers of the plaintiffbank had been contacting the defendant time and again to impress upon him to regularize the account but to no effect.
30) On the otherhand the defendant in his written statement has submitted that the defendant never availed any credit facility with plaintiff. In his written statement the defendant in reply to para No. 5 of the plaint has submitted that he never executed any document on the date as alleged, however, some printed but blank papers were got signed by the plaintiff. It is further submitted that the defendant raised objection to such documentation but the officer concerned satisfied the defendant that it was merely a formality. The defendant specifically denied having ever executed any document by hypothecating his entire/all stock receivable and other current asset. The defendant has submitted that the alleged documents were blank which have lately been filled up by the plaintiff to their own suiting. It is further submitted that the defendant is an Engineer Graduate and even the plaintiff did not allow him to fill up the blanks, neither allowed/delivered any photocopy of the same allegedly to have CS No. 5/14/11 Page 11 of 28 been executed. In his reply to para No. 10/11 of the plaint, the defendant has specifically denied that the documents were duly filled up at the time of their alleged execution.
31) PW1 has reiterated almost all the contents of the plaint in his affidavit in evidence Ex. PW1/A . Apart from other facts, PW1 has admitted that he is authorized only by gazette notification. PW1 further stated in his cross examination that the Agreement Ex. PW1/2 is the agreement of loancumhypothecation wherein the limit of rupees six lacs has been sanctioned and mentioned. PW1 further stated in his cross examination that the account of defendant during the course of transaction with the bank has also exceeded about rupees six lacs which at portion Mark B in Ex. PW1/7. PW1 further stated that the account of defendant was opened on 09.04.2008. PW1 further stated that the account of defendant exceeded from rupees six lacs for the period from 31.10.2009 to 31.01.2010. PW1 further stated that the last closing balance as on 17.03.2011 is Rs. 2,90,210.77, however, the date of NPA is 01.06.2010.
32) PW1 further stated in his cross examination that no written permission was obtained from defendant before adjusting the STDR shown in the statement of account as it was collateral security and bank could adjust the same without obtaining any written permission from the CS No. 5/14/11 Page 12 of 28 defendant and without informing him. PW1 further stated that no permission from any court was obtained before adjusting the said STDR in the account of defendant. PW1 further stated that, in the legal notice Ex. PW1/5, dated 19.03.2011, it is not mentioned that the STDR has been adjusted in the account of defendant. Same is also not mentioned in the plaint. PW1 further stated that he had never been posted in the Poothkhurd Branch of the plaintiff bank. PW1 admitted that he was deposing on the basis of record of the plaintiffbank and he has no personal knowledge. PW1 has deposed that the facts mentioned in para No. 4 of his affidavit is based on the record available in the bank. PW1 further stated that Ex. PW1/1 is the interview form and the sanction has been granted on the same document Ex. PW1/1.
33) PW1 has further stated that Ex. PW1/3 was issued by the bank mentioning the terms and conditions regarding the sanction. PW1 further deposed that he cannot say whether any receipt was issued or not and that is a matter of record. PW1 further stated that the date of NPA is 01.06.2010 as per the record. PW1 further stated that as per the bank procedure normally the intimation is given to the customer before the account is NPA but he cannot say any such information has been placed on record or not and voluntarily added that as and when the file is received in the recovery branch, normally the notice/information is issued CS No. 5/14/11 Page 13 of 28 to the customer that the file has been received and matter is going to be NPA. PW1 further deposed that there is no such intimation or notice on record.
34) PW1 has further stated that at the time of granting loan, the rate of interest was 13% which varies from time to time as per the guidelines of RBI. PW1 further stated that no such intimation regarding the variation in interest was given but that is mentioned in the statement of account. PW1 admitted that the bank limit of the defendant was rupees six lacs. PW1 further stated that on 17.03.2011, Rs. 2,90,210.77 was outstanding. PW1 further stated that he has no personal knowledge about this case. PW1 denied the suggestion that he was deposing falsely.
35) PW2 Sh. S.B. Singhal, Dy. Manager, P.P.G. Deptt. of the plaintiff bank has stated in his affidavit apart from other facts that the defendant had approached the plaintiff bank at its Pooth Khurd Branch under the Cash Credit Facility Scheme and the proposal of the defendant was received by the plaintiff bank and on scrutiny of the proposal of the defendant, the plaintiff bank sanctioned, lent and released a cash credit limit/loan of Rs. 6,00,000/ to the defendant on 09.04.2008 from SMECC, SBI, Chandni Chowk, Delhi, during his (PW2) tenure and in his presence, and the CS No. 5/14/11 Page 14 of 28 defendant after going through the terms & conditions, signed and executed the loan documents. PW2 further has further stated in his affidavit that he can safely identify the signatures of the defendant on said loan documents which are exhibited as Exs. PW1/1 to PW1/3 i.e. original loan application form, agreement of loan cum hypothecation and agreement letter. PW2 has further stated in his affidavit that Sh. Subhash Chand Goel was posted as Chief Manager, SMECC, SBI, Chandni Chowk Delhi, at the time when the loan was sanctioned to the defendant and he (PW2) can also identify his (S.C. Goel) signatures on the documents, as the same were done in his presence. PW2 has further stated in his affidavit that at the time of availing the abovesaid loan facility, the defendant had hypothecated all stocks, receivable and other current assets besides collateral security of Rs. 2,75,000/ in the form of SDTR and all the documents were dully filled, read over and explained to the defendant and he put his signatures voluntarily on these documents i.e. Exs. PW1/1 to PW1/3 after understanding its implications and delivered the same to the plaintiff bank.
36) In his cross examination, PW2 has stated that the signatures of Sh. Subhash Chand Goel, Chief Manager (Sanction) is at point "Y" on Ex. PW1/3 andame is the initial of the above said official. PW2 further stated in his cross examination that Ex. PW1/3 is the CS No. 5/14/11 Page 15 of 28 original as per the bank rules else the duplicate copies are prepared and the original is handed over to the customer and the second copy is kept on record. PW2 further stated in his cross examination that he original was handed over to the customer and the receipt was obtained and that is a matter of record and the same is at point "Z" on Ex. PW1/3. PW2 further stated in his cross examination that the loan was sanctioned from the Chandani Chowk branch and document was executed at Poothkhurd Branch and Sh. Subhash Chand Goel had signed in Chandani Chowk branch. PW2 further stated in his cross examination that Sh. Subhash Rathi, defendant has signed in Poothkhurd Branch. PW2 has further deposed that the document was handed over to him by Sh. Subhash Chand Goel after sanctioning the loan. PW2 further stated that he was posted at Chandani Chowk. PW2 admitted that after sanctioning, the document was handed over to him and defendant has signed the document in the Poothkhurd branch of the bank. PW2 deposed that at that time, he was posted as Document Execution Officer and after the sanction they had contacted the defendant where it will be convenient for him for executing the document. PW2 further deposed that the Ex. PW1/3 and arrangement letter when handed over to him by Subhash Chand Goel were duly returned and signed by the defendant. PW2 admitted that Ex. PW1/3 does not bear his CS No. 5/14/11 Page 16 of 28 signature and the same is not required. PW2 denied the suggestion that he was deposing falsely.
37) On the other hand, the defendant as DW1 has stated in his affidavit in evidence Ex. DW1/A that the suit filed by the plaintiff is not maintainable and is liable to be dismissed, inasmuch as the plaintiff has failed to place any documents on record so as to establish with certainty the decision to initiate the present proceedings against the defendants herein by way of appropriate resolution or decision by the competent authority. The defendant has further stated in his affidavit in evidence that the plaintiff has not filed any attorney nor has the plaintiff filed on record, the authority of the individuals executing such power of attorney on behalf of the plaintiff's bank. The defendant has further submitted that the plaintiff has failed to place any documents on record so as to establish with certainty the decision to initiate the present proceedings against the defendants herein by way of appropriate resolution or decision of the plaintiff bank and in absence whereof the plaintiff bank has no right or authority to initiate the present proceedings on his own sweet will.
38) The defendant has further stated in his affidavit in evidence that he had never availed any credit facility with the plaintiff. CS No. 5/14/11 Page 17 of 28
39) DW1 was duly cross examined by Ld. Counsel for the plaintiff. So far as the cross examination of the defendant (DW1) is concerned, apart from other things, he stated that he is an Engineer. DW1 deposed that he had not written any letter to the bank that the loan was given to him without his consent. DW1 again said that one letter was given by him but he has not brought the same. DW1 further deposed that he had not made any complaint to any authority that his signatures were obtained by the bank on blank papers. DW1 denied the suggestion that he was deposing falsely. DW1 further denied the suggestion that the plaintiffs are entitled for the suit amount.
40) Ld. Counsel for the defendant submitted that the signatures of the defendant were obtained on some printed but blank papers by the plaintiff which are not binding upon the defendant. However, it is a fact on record that the defendant has himself admitted that he is an Engineer, hence, it can be safely presumed that being a literate person, the defendant knew/knows the consequences of signing on blank forms/papers. Even otherwise, the defendant never raised such objection earlier before the filing of the suit, hence, I do not find any force in the contention of the Ld. Counsel for the defendant that the signatures of the defendant were obtained on some printed, but blank papers. It is unbelievable that an educated person like an Engineer who signed blank papers/forms would CS No. 5/14/11 Page 18 of 28 not have protested at any point of time or will not make any complaint.
41) The defendant has also admitted in his cross examination that he has not written any letter to the bank that the loan was given to him without his consent and he has not proved any document in this regard.
42) The plea that the loan was given to the defendant without his consent or that the signatures of the defendant were obtained on some printed/blank form is sham, farce and is an after thought.
43) The plaintiff on the other hand has proved the loan application form as Ex. PW1/1 is, agreement of loancumhypothecation dated 09.04.2008 as Ex. PW1/2, the arrangement letter dated 09.04.2008 as Ex. PW1/3, letter dated 27.07.2012 as Ex. PW1/4, legal notice as Ex. PW1/5, original postal receipts as Ex. PW1/6, statement of accounts as Ex. PW1/7 and copies of gazette notifications as Mark A to D. The plaintiff has further proved copy of ITRs of defendant as Mark X, copy of telephone bill of defendant as mark Y and copy of stock statement of defendant as Mark Z.
44) The defendant has not denied specifically any flaw in the statement of account Ex. PW1/7. The defendant has admitted his signatures on the CS No. 5/14/11 Page 19 of 28 documents. The defendant in para No. 5 of the written statement has not denied his signatures on the documents. The defendant has also not denied signing of the documents in his written statement. It is also a fact on the record that the defendant has not denied or disputed statement of account filed by the plaintiff.
45) Ld. Counsel for the plaintiff has stated that there is no force in the contention of Ld. Counsel for the defendant that STDR of the defendant was not properly adjusted. PW1 in his cross examination has specifically stated that the plaintiff bank was having STDR of defendant as collateral security which has been adjusted in the statement of account filed on record and the said adjustment has been shown at portion Mark "C" in Ex. PW1/7. There is no allegation on the contrary and or has been pointed out in the statement of account Ex. PW1/7.
46) The other contention by the Ld. Counsel for the defendant is that the suit has not been signed, verified or filed by the proper person. Though there is no issue regarding the same. It is stated by the plaintiff in the plaint that Sh. N.K. Dang who has signed and verified this plaint and who has instituted the present suit on behalf of the plaintiff bank, is presently posted as Assistant Manager/City Case Officer of State Bank of India, Stressed Assets Recovery Branch, which is opened for filing suit on CS No. 5/14/11 Page 20 of 28 behalf of the branches and following up the cases in courts, having its centre at 23, Nazafgarh Road, New Delhi. It is further stated in the plaint that Sh. N.K. Dang is well conversant with the facts of the case on the basis of records of the PlaintiffBank maintained in its regular course of business and is capable of deposing about the same. Even otherwise Sh. N.K. Dang is competent to sign and verify the pleading, vakalatnama, applications, execution and swear the affidavits on behalf of Plaintiff Bank under regulation 76 and 77 of State Bank of India General Regulations, 1955 framed by Reserve Bank of India, exercising powers conferred on it under State Bank of India Act, 1955, read with previous approvals of Central Government and with Gazette notifications published in Gazette of India including one dated 26.08.1972.
47) The defendant in his written statement has simply stated that he does not know management, attorney/authority and functioning of the plaintiff bank and the plaintiff must be directed to prove the allegations contained in the para. The allegation of the defendant is baseless.
48) The defendant has not specifically denied that Sh. N.K. Dang, who assigned, verified and instituted the present suit on behalf of the plaintiff bank, is not presently posted as Asstt. Manager/City Case Officer, Stressed Assets Recovery Branch, which has been opened for filing of the CS No. 5/14/11 Page 21 of 28 suit on behalf of the branches and following up the cases in Courts.
49) In the matter of Union Bank of India vs. Naresh Kumar & Ors., AIR 1997 SC 3, it has been held that in suit instituted or defended by public corporation like bank, public interest should not be allowed to be defeated on mere technicalities and also held it improper that the suit was dismissed on the ground of plaint being not signed or verified by a competent person. It was also observed that the bank can sue and be sued in its own name and reading Order VI Rule 14 r/w Order XXIX Rule 1 CPC, it would appear that even in the absence of any formal letter of authority or power of attorney having been executed, a person referred to in Order XXIX Rule 1 can by virtue of the office which he holds, sign and verify the pleadings on behalf of the bank.
50) Hon'ble High Court of Delhi in the matter titled as "M/s J.B. Marketing and Finance Ltd. vs. Rakesh Khatan & Anr., RFA No. 616/2004 decided on 19.11.2008 observed as :
"We may only note that the witness of the appellant was not cross examined by the respondents who were ex parte at the trial. Thus, each and every statement made on oath by the witness of the appellant had to be accepted. Further, what was the Ld. Trial Judge doing when he was exhibiting the documents? Objection to CS No. 5/14/11 Page 22 of 28 the admissibility and proof of a document has to be raised when a document is sought to be proved. If so done, the party concerned can take remedial actions there and then.
Since the witness of the appellant was not cross examined, we hold that the testimony of the witness being not challenged, has to be accepted in toto.
In respect of entires in the statement of account and the same required to be proved by producing the original documents we may record that only when a party challenged an entry in a statement of account has the same to be proved. If an entry in the statement of account is not challenged, the party relying upon the statement of account has not to justify the said entry".
51) In the matter of State Bank of India vs. Kaushal Plastics & Ors., reported in 85(2000) DLT 558, it is held as under :
"That the plaintiff is a bank constituted under the State Bank of India Act, 1955. PW1 Sh. Keshav Rai, Dy. Manager of the plaintiff bank has deposed that Sh. Harbans Singh had taken over charge from him as Branch Manager in Karol Bagh Branch in 1985 and that under State Bank Regulations, Sh. Harbans Singh as Branch Manager was authorized and competent to sign and verify the plaint and institute the suit on behalf of the bank. PW1 (Sh. Keshav Rai) has also proved copy of a Gazette Notification Ex. P. 1/1. PW1 has also deposed that the plaint is signed and verified by Sh. Harbans Singh whose signatures he has identified. PW1 has also not been cross examined on this part of his statement. There is no other evidence in rebuttal CS No. 5/14/11 Page 23 of 28 also. Even no arguments have been addressed to dispute his testimony. It is further held that there is no reason not to believe this unchallenged testimony of PW1".
52) Now reverting back to the present suit. In view of the fact that the defendant has not specifically denied the contents of para no. 2 of the affidavit, in his written statement, as discussed herein above, and even otherwise when we glance through the cross examination of PW1 Sh. N.K. Dang, the only suggestion which has been given regarding verifying, signing and institution of the suit by Sh. N.K. Dang is that he is authorized only by the Gazette Notification and the photocopies of the said notifications are already on the record and he is not having the originals. PW1 has not been cross examined regarding rest of the statement and there is no evidence in rebuttal. Even otherwise, the Gazette Notification which has been placed on the record and which has been marked as Marks A to D can be relied upon, as stated, being notified and published in the Gazette of India under Regulations 76 & 77 of State Bank of India General Regulations, 1955, framed by Reserve Bank of India, exercising powers conferred on it under State Bank of India Act, 1995, r/w previous approvals of Central Government and with Gazette notification published in Gazette of India. Hence, I have no hesitation to hold that the suit has been signed, verified and filed by a proper person. CS No. 5/14/11 Page 24 of 28
53) Ld. Counsel for the defendant has raised another contention that the plaintiff has failed to prove the service of notice upon the defendant before filing of the suit. A perusal of the record demonstrates that the plaintiff has proved the legal notice Ex. PW1/5 dated 19.03.2011 and the postal receipts Ex. PW1/6 on the record. The defendant has not disputed the address mentioned in Ex. PW1/6. There is presumption under General Clauses Act even or otherwise in view of the postal receipts on the record Ex. PW1/6 that the legal notice was duly served upon the defendant.
54) It is settled proposition of law that in case the notices are properly address and delivered to the postal authorities, then it must be presumed that the same are properly served. The presumption is greater when the notices are registered. Hence, in view of the notice and postal receipts on record by the plaintiff, which were properly addressed and delivered to the postal authorities, thus, the notice deemed to have been served upon the defendant, which has not been replied by the defendant. Hence, an adverse presumption is required to be drawn against the defendant that the contents of notices were correct, hence, not replied.
55) Even otherwise the defendant has failed to give suggestion to PW1 that the legal notice was not served upon the defendant. It is a well settled CS No. 5/14/11 Page 25 of 28 law that if a party before filing a petition makes serious assertions in a notice, then other party must not remain silent by ignoring to reply, if he does so, then adverse inference may be raised against him. Hence, in this case, in the light of pleadings and evidence on the record, one fact is very clearly stands proved that the legal notice dated 19.03.2011 has been received by the defendant. The defendant should not have remained silent by ignoring to send reply to the legal notice dated 19.03.2011. Since the defendant has failed to do so and remained silent, hence, the adverse presumption is required to be drawn against him. Hence, as per law, whatever is stated in the legal notice presumed to be correct.
56) In view of the above discussions, I do not find any substance in the contention of Ld. Counsel for the defendant that the suit filed by the plaintiff is liable to be dismissed. This court is of the opinion that in view of the evidence of PW1, PW2 and the documents proved on record as discussed herein above, the plaintiff has proved beyond any doubt that the plaintiff is entitled for decree of Rs. 3,64,422/ along with pendente lite and future interest from the date of filing of the suit till its realization. This issue is accordingly decided in favour of the plaintiff bank and against the defendant.
CS No. 5/14/11 Page 26 of 28 ISSUE No. 3 :
"Whether there is no cause of action in favour of the plaintiff?
OPD"
57) The onus to prove this issue is upon the defendant. In view of the averments made and the evidence led on the record, I do hereby hold that the plaintiff was having a cause of action in his favour to file the present suit. This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE No. 4 :
"Whether there is no privity of contract between the parties as alleged? OPD".
58) The onus to prove this issue is upon the defendant. In view of the averments made and the evidence lead on record, I do hereby hold that there is a privity of contract between the parties. This issue is accordingly decided against the defendant and in favour of the plaintiff. RELIEF :
59) In view of my aforesaid discussions, a decree for the recovery of Rs. 3,64,422/, with costs, is passed in favour of the plaintiff bank and against the defendant. The plaintiff bank is also entitled to recover CS No. 5/14/11 Page 27 of 28 pendente lite and future interest, however, @ 12% p.a. from the date of filing of the suit till the realization of the decreal amount.
Decree sheet be drawn accordingly and file be consigned to Record Room.
Announced in the open Court (CHANDER SHEKHAR)
today i.e. 15.03.2014 District & Sessions Judge (N/W)
Rohini Courts, Delhi
CS No. 5/14/11 Page 28 of 28