Delhi District Court
Through: Shri Avinish Kumar Srivastava vs Mrs. Anju Tyagi on 13 August, 2018
State Bank of India V. Anju Tyagi
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 249/2016
UNIQUE CASE ID NO.: 616475/16
IN THE MATTER OF :
LOCAL HEAD OFFICE:
State Bank of India
Parliament Street,
New Delhi - 110001.
BRANCH OFFICE:
State Bank of India
657671, Sant Bhawan,
Chandni Chowk,
Delhi - 110006.
Through: Shri Avinish Kumar Srivastava,
Chief Manager ....Plaintiff
VERSUS
Mrs. Anju Tyagi
W/o Mr. Lalit Tyagi
House No.85, Nasib Vihar,
Main Chauhan Patti Road,
Near Sonia Vihar, Check Post,
Illaychipur201002, Loni,
Ghaziabad (U.P.). ...Defendant
Suit No. 249/2016 Page 1 of 16
State Bank of India V. Anju Tyagi
CIVIL RECOVERY SUIT FOR RS. 6,08,894/ (RS. SIX LAKHS
EIGHT THOUSAND EIGHT HUNDRED NINETY FOUR ONLY) UN
DER ORDER XXXVII OF THE CIVIL PROCEDURE CODE
Date of institution of the Suit : 26/02/2016
Date on which Judgment was reserved : 24/07/2018
Date of Judgment : 13/08/2018
ORDER
By way of present order, this court shall dispose off the application for Leave to defend under Order 37 Rule 3(5) filed by the Defendant. However in order to appreciate the controversy it required to know the first of all the case of the Plaintiff. CASE OF THE PLAINTIFF AS PER PLAINT The defendant is a principal borrower and she approached to the plaintiff bank through her application dated 20/01/2013 for grant of Car Loan of Rs.7,20,000/ for purchase of Car - Maruti Suzuki Swift Dzire ZDI. The defendant had signed the aforesaid loan application by promising to fulfills/ or to adhere certain terms and conditions to the present car loan and agreeing to pay back the amount borrowed by her from the plaintiff bank, along with interest Suit No. 249/2016 Page 2 of 16 State Bank of India V. Anju Tyagi with 84 Equated Monthly Installments (EMI) i.e. Rs.12,140/ per month.
Consequent upon request of the defendant and taking into consideration the facts submitted by her in loan application and also on executing necessary and relevant documents in favour of the bank in this regard, the plaintiff bank sanctioned and disbursed/ granted the car loan of Rs.7,20,000/ on certain terms and conditions as stipulated in the plaintiff bank's Arrangement Letter of 20/01/2013 and the same terms and conditions were accepted and acknowledged by the borrower/ defendant by putting her signatures on 20/01/2013. The Arrangement Letter of 20/01/2013 so issued by the plaintiff in favour of the defendant. The defendant in consideration of plaintiff bank having sanctioned and granted/ disbursed the car loan of Rs.7,20,000/ to her and as security for the repayment and duly discharge all the liabilities arising out of the said loan granted to her by the plaintiff bank, executed and delivered the documents, i.e. Loancum Hypothecation Agreement dated 20/01/2013. Suit No. 249/2016 Page 3 of 16
State Bank of India V. Anju Tyagi After completion of entire formalities, the plaintiff bank disbursed an amount of Rs.8,48,063/ out of which Rs.7,20,000/ towards car loan amount and Rs.1,28,063/ as margin money for and on behalf of the defendant directly sent to the Car Dealer, namely M/s. T.R. Sawhney Motors Pvt. Ltd., East Gokulpur, Main Wazirabad Road, New Delhi - 110094, through RTGS in her account maintained with ICICI Bank, vide UTR No. SBH2201135310334 dated 22/01/2013 for which the dealer issued a Receipts dated 22/01/2013, in terms of Dealer's Quotation cum Performa Invoice dated 20/01/2013 and the same was sent and forwarded under plaintiff bank's letter dated 22/01/2013. To secure the due repayment of the amounts which may become due and payable under the said loan account, the defendant executed and delivered to the plaintiff bank a Loancum Hypothecation Agreement in the prescribed format, in favour of the plaintiff bank dated 20/01/2013, whereby the defendant hypothecated the car as security for the repayment of the loan amount.
Suit No. 249/2016 Page 4 of 16
State Bank of India V. Anju Tyagi However, in order to facilitate to repay the loan, the said loan amount with interest at the rate of 10.50% per annum with monthly rests and other charges was repayable by the defendant in 84 monthly installments of Rs.12,140/ starting from February, 2013. However, the rate of interest is subject to variations as per the RBI guidelines issued from time to time in this regard. After availing of the aforesaid loan from the plaintiff bank, the defendant failed to adhere to the terms and conditions of the loan regarding repayment amount either towards principal or towards the interest or charges thereon. Several reminders were issued to the defendant to pay the amount and regularize the account but to no avail and the account was declared NPA on 21/08/2015 with an outstanding of Rs.5,64,483.68 excluding of interest charged therein upto 21/08/2015. In subsequent, the plaintiff bank sent a demand letter dated 12/10/2015 through postal authorities to the defendant.
However, the defendant had made diverse payments towards part repayment in the said account, but some cheques were dishonoured on presentation and all the entries of payments and Suit No. 249/2016 Page 5 of 16 State Bank of India V. Anju Tyagi dishonoured cheques are reflected in the statement of account maintained by the plaintiff bank of defendant. The plaintiff bank aggrieved with the attitude of the defendant she was approached by the plaintiff bank by way of paying personal visits and telephonic calls and recalled the entire outstanding from the defendant in the said account, but the defendant has miserably failed and neglected to liquidate the outstanding amount in the said account, despite demand letter dated 12/10/2015 acknowledged/ received by defendant on the same day. Moreover, the plaintiff bank have sent a legal notice dated 20/01/2016 for recalling the entire outstanding amount to the defendant at her last known address through their counsel under speed post and courier but despite of the service of the said notice the defendant failed and neglected to make the outstanding amount.
As per the accounts maintained by the plaintiff bank, the defendant is liable to pay a sum of Rs.5,64,483.68 paise towards principal amount excluding of interest of Rs.15,063/ charged upto 21/08/2015 since the same has been reversed in the statement of account being unutilized/uncharged interest as per the guidelines Suit No. 249/2016 Page 6 of 16 State Bank of India V. Anju Tyagi of RBI but the plaintiff bank is entitled to recover the same interest of Rs.15,063/ hence added in the principal amount which comes to Rs.5,79,547/ and Rs.29,347/ towards agreed interest @ 10.10% with effect from 22/08/2015 to 20/02/2016 being entitlement of plaintiff bank, thus totalling an amount of Rs.6,08,894/, is payable by the defendant to the plaintiff as per the statement of account duly certified, signed and authenticated by the bank, for which the plaintiff is suing. The suit is filed under Order XXXVII of CPC on written agreements and no relief which does not fall within the ambit of Rules under Order XXXVII CPC is claimed in the suit. CASE OF THE DEFENDANT AS PER LEAVE TO DEFEND APPLICATION AND AFFIDAVIT The plaintiff has filed the false case against the defendant only to succeed in its illmotive by hook or by crook. The defendant has taken the car loan from the plaintiff bank and was regularly paying the installments for repayment of the said car loan, but in the mean time, the husband of defendant got suffered from severe mental diseases and he undergone regular Suit No. 249/2016 Page 7 of 16 State Bank of India V. Anju Tyagi treatment for the same and due to the said reason, the husband of defendant suffered from great financial crisis and his business also suffered from great loss and due to the said reason, there may be occurred some default in payment of installment and the husband of defendant is still undergoing the said medical treatment. The defendant after getting some recovery of her husband from the said mental diseases, started paying the installments of the above said car loan at regular intervals and still ready to pay the balance loan amount, which can barely be seen from statement of account of the said car loan, thereby reflecting the installments made by the defendant.
If leave to defend will not be granted to the defendant, then the defendant will have to suffer irreparable loss and injury which cannot be compensated in terms of money.
Falsity in the allegations of the plaintiff shall be exposed if the matter is tried by this Court and the defendant is granted leave to defend the present suit.
For the reasons set out herein above no amount whatsoever is due and payable by the defendant/ applicant to the plaintiff, what Suit No. 249/2016 Page 8 of 16 State Bank of India V. Anju Tyagi to speak of the pendentelite and future interest as claimed by the plaintiff in the suit. At no point of time any cause of action arose against the defendant/ applicant nor is the same continuing. The applicant/ defendant does not admit the claim of the plaintiff and she has got very good plausible defence in her favour, which raise various triable issues in the matter, which requires to be adjudicated upon by way of proper defence and evidence, which are being taken in the accompanying detailed affidavit and same may be taken as part and parcel of this application and as such the defendant wishes to defend the same and as such seek the unconditional leave of this Court for the same. REPLY ON BEHALF OF THE PLAINTIFF TO LEAVE TO DEFEND APPLICATION.
The Plaintiff has reiterated the facts of the Plaint and denied the averments made in the Leave to defend application. It is also submitted that the fact with regard to repaying the installments regularly against the car loan by the defendant, can be verified from the statement of account so available in the case file and the truth can be ascertained whether the installments of a car Suit No. 249/2016 Page 9 of 16 State Bank of India V. Anju Tyagi loan are being made regularly or not. There may be occurred some default in repayment of installment, thus, he violated the terms and conditions of agreement so entered upon between the parties. After filing of the instant suit, the defendant has only deposited an amount of Rs.12,000/ on 12/09/2016 and Rs.12,000/ on 29/03/2017, both in cash, which is appropriated in the car loan and the same is reflected in the statement of account. PRINCIPLES OF GRANT/REFUSAL OF LEAVE TO DEFEND:
I have profit to refer the Judgment of Hon'ble High Court of Delhi passed in RFA No. 387/2018 titled as M/s AMCON ENGINEERS & ANR. Versus SATVINDER SINGH decided on 8th May, 2018, whereby the Hon'ble High Court on the basis of the dictum passed by the Hon'ble Supreme Court held that the following principles are to be followed for grant or rejection of Leave to Defend application: "6. The principles with respect to grant of leave to defend have been recently stated by the Supreme Court in the case of IDBI Trusteeship Services Ltd. Vs. Hubtown Ltd., (2017) 1 SCC 568. Paras 17 to 17.6 of this judgment lay down the principles with respect to the grant of leave to defend and these paras read as under: Suit No. 249/2016 Page 10 of 16 State Bank of India V. Anju Tyagi "17. Accordingly, the principles stated in paragraph 8 of Mechelec's case will now stand superseded, given the amendment of Order XXXVII Rule 3, and the binding decision of four judges in Milkhiram's case, as follows: 17.1 If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the Plaintiff is not entitled to leave to sign judgment, and the Defendant is entitled to unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the Plaintiff is not entitled to sign judgment, and the Defendant is ordinarily entitled to unconditional leave to defend.
17.3 Even if the Defendant raises triable issues, if a doubt is left with the trial judge about the Defendant's good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4 If the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security.
As such a defence does not raise triable issues, conditions as to deposit or security or both can Suit No. 249/2016 Page 11 of 16 State Bank of India V. Anju Tyagi extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5 If the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the Plaintiff is entitled to judgment forthwith.
17.6 If any part of the amount claimed by the Plaintiff is admitted by the Defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the Defendant in court."
"7. In view of the ratio of the judgment of the Supreme Court in the case of IDBI Trusteeship Services Ltd. (supra) once the defence is completely frivolous and vexatious and if the case is that defence is only to defeat a valid claim of the plaintiff, as no genuine triable issue is raised the leave to defend should be refused."
FINDINGS OF THE COURT:
ADMISSION ON BEHALF OF DEFENDANT IN LEAVE TO DEFEND APPLICATION:
The defendant has not disputed any of the following original documents:
a) The loan application form dated 20.01.2013 i.e. Annexure P2. Suit No. 249/2016 Page 12 of 16
State Bank of India V. Anju Tyagi
b) The Arrangement Letter of 20/01/2013 issued by the Plaintiff bank in favour of defendant i.e. Annexure P3.
c) Written contract i.e. Loan Cum Hypothecation Agreement dated 20.01.2013 i.e. Annexure P4.
d) Dealer's Quotation/Performa Invoice dated 20.01.2013 i.e. Annexure P5.
e) The copy of the forwarding letter dated 22.01.2013 for payment through RTGS 22.01.2013 and payment receipt and copy of payment and other details annexed as Annexure P6 (Colly.).
f) Demand letter dated 12.10.2015 i.e. Annexure P7.
g) Statement of Account under Section 2A(b) of Banker's Books Evidence Act i.e. Annexure P8 (Colly.).
h) Legal Notice dated 20.01.2016 alongwith postal receipts i.e. Annexure P9 (Colly.).
The combined reading of the entire documents it clearly depict that the suit falls under the written contract and within the parameters of the Order 37 CPC. The relevant portion of Order 37 CPC is reproduced for ready reference: (1) XXXXX (2) Subject to the provisions of subrule (1), the Order applies to the following classes of suits. namely:--
(a) suits upon bills of exchange, hundies and promissory notes;Suit No. 249/2016 Page 13 of 16
State Bank of India V. Anju Tyagi
(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,--
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.] It is admitted that the Car loan was taken by the defendant from Plaintiff and the defendant has defaulted in the payments. The defendant is also relying upon the Statement of Account of the plaintiff. It is well known practice under the banking system that after declaring NPA the banks used to keep the amount in Shadow Account.
The perusal of the entire leave to defend, in my considered view, the Defendant has not raised any substantial defence and genuine triable issues. The defence of the defendant is totally bald, vague, evasive, frivolous and vexatious. Admittedly the defendant has paid a sum of Rs.12,000/ twice i.e. total Rs.24,000/ during the pendency of the case and for this reason Suit No. 249/2016 Page 14 of 16 State Bank of India V. Anju Tyagi the adjustment is required to be given in the final decreetal amount in terms of the Final Order.
INTEREST:
Section 34 CPC which postulates and envisages the pendentelite interest at any rate not exceeding 6% and future interest at any rate not exceeding the rate at which nationalized banks advanced loan. Keeping in mind the mandate of the said proposition, interest of justice would be served if plaintiff is granted simple rate of pendentlite interest @ 6% per annum and future rate of interest @ 9% per annum till its realization.
RELIEF:
Accordingly, I hereby pass the following FINAL ORDER (A) The application under Order 37 Rule 3(5) CPC for leave to defend filed by the defendant is hereby rejected. (B) a decree in the sum of Rs.6,08,894/ is passed in favour of the plaintiff and against defendant alongwith pendentlite interest @ 6% per annum and future rate of interest @ 9% per annum till its Suit No. 249/2016 Page 15 of 16 State Bank of India V. Anju Tyagi realization on the said amount of 6,08,894/. Admittedly defendant has paid a sum of Rs.12,000/ twice i.e. total Rs.24,000/ was paid by the defendant during the pendency of suit and therefore the Plaintiff shall have to give adjustment of the said amounts with retrospective effect relating to the date of payment by the defendant to the plaintiff.
(C) The cost of the suit is also awarded in favour of the plaintiff and against defendant.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
On 13/08/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 249/2016 Page 16 of 16