Delhi District Court
Kailash Technology Pvt Ltd vs Xcel Serve Solutions Private Ltd on 23 May, 2025
IN THE COURT OF RUBY ALKA GUPTA, DISTRICT JUDGE,
(COMMERCIAL COURT)-02, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS (COMM.) No. 167/2020
CNR No. DLET01-004037-2020
In the matter of:
Canara Bank
Having its registered head office at:
112, JC Road Bangalore
Branch office at:
Patparganj, at Atlantic Arcade, G-3,
First Floor, Plot no. 6, Patparganj
Societies, I.P. Extension, Delhi-110092.
..........Plaintiff
Versus
1. Smt. Krishna Devi Kamra @ Smt. Krishna Kamra
Class-I, legal heir of borrower Sunny Kamra
W/o late Sh. Rajinder Kumar Kamra
R/o 91, Ground Floor, West Guru Angad
Nagar Extension, Laxmi Nagar,
East Delhi, Delhi-110092.
Also at:
C/o M/s Sunny Foods & Beverages
V3S Mall Shopping Multiplex, Plot no.10,
Vikas Marg, Near Nirman Vihar
CS(COMM) 167/20 Judgment dated 24.05.2025
Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 1 of 17
Metro Station, Laxmi Nagar, Delhi-110092.
2. The Registering Authority/ MLO (HQ)
Mall Road Authority under M.V. Act,
Transport Department, Govt. Of NCT Delhi,
Mall Road, Near Timarpur, Delhi-110054.
.......Defendants
Date of institution : 05.09.2020
Date of reserving judgment : 24.05.2025
Date of announcement : 24.05.2025
JUDGMENT
1. Vide this judgment, the present suit for recovery of Rs. 6,99,008/- (Rupees Six Lakh Ninety Nine Thousand and Eight only) and permanent injunction shall be disposed off. Decree of recovery is sought against defendant no. 1/borrower. The decree of permanent injunction was sought against the defendant no. 2. Submissions have been heard and file has been perused.
2. Summons of the suit were issued to the defendants. Summons were served to defendant no. 1 on 24.12.2020 and defendant no. 2 on 16.12.2020. The defendant no. 1 had appeared but WS was not filed by her. Certain payments were made by defendant no. 1 to the bank and a fresh statement of account was filed, as noted in order dated 07.12.2021. A counsel appeared on her behalf on 11.01.2022 and CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 2 of 17 stated that the defendant no. 1 was ready to surrender the vehicle. The possession of the vehicle had already been taken over by the bank. Since limitation was waived by the Hon'ble Supreme Court, opportunity to file WS was granted by the Ld. Predecessor. WS was filed by defendant no. 1. Issues were framed vide order dated 23.07.2022 which are as follows:
1. Whether the plaintiff bank is entitled for a decree against the defendant in the sum of Rs.6,99,008/- alongwith interest if any and if yes at what rate and for which period?
OPP
2. Whether the plaintiff is entitled for a decree of permanent injunction against the defendants for restraining them from transferring, alienating or creating any third party interest in respect of hypothecated vehicle bearing registration no. DL 12 CN 0123? OPP
3. Whether the plaintiff is entitled for a decree for the sale of the said vehicle to realize the decreetal amount? OPP
4. Relief.
3. A counsel appeared on behalf of defendant no. 2 on 01.03.2023. Junior Assistant from the office of defendant no. 2, Sh. Himanshu appeared on 26.05.2023. He had been authorized by defendant no. 2 to CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 3 of 17 appear and make appropriate statement. After noting the same, the Ld. Predecessor recorded his statement. In view of the said statement, Ld. Counsel for the plaintiff submitted that his claim (of permanent injunction) against defendant no. 2 is satisfied. The Ld. Predecessor passed an order to that effect and thereafter noted that the case remained pending against defendant no. 1 only.
4. Since none appeared for defendant no. 1 on 26.05.2023, defendant no. 1 was proceeded against ex parte. Ex parte evidence was led. The plaintiff examined two witnesses. The plaintiff examined Ms. Megha Sharma as PW1 and Sh. Prabhat Kumar as PW2. Their evidential affidavits are Ex. PW1/X and Ex. PW 2/X. The documents exhibited in testimony of PW1 are as follows:
S. No. Particulars of the document Exhibit No
1. The original loan application dated Ex. PW1/1 29.08.2017
2. Copies of the KYC documents such as Mark B-1 (colly) photocopies of ITR, CIBIL Report, Aadhar Card and PAN Card, etc.
3. Performa invoice dated 28.08.2017 Ex. PW1/2
4. Office copy of the Sanction Ex. PW1/3 Memorandum dated 29.08.2017
5. CAN mobile loan agreement (Form Ex. PW1/4 NF-928) dated 25.09.2017
6. Specimen signature card dated Ex. PW1/5 25.09.2017 with the photographs of CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 4 of 17 defendant no. 1 and her son Sunny Kamra
7. Original form of particulars of vehicle Ex. PW1/6 hypothecated (NF-373) dated 26.10.2017
8. Copies of RC, Vahan receipt print out, Mark B-2 (colly) retail invoice, insurance & email letter dated 06.10.2017 and 25.09.2017
9. Print out of the status of the loan and Ex. PW1/7 hypothecated vehicle
10. Attested copy of Power of Attorney Ex. PW1/A dated 22.07.2008
11. Letter/email dated 29.01.2022 along Ex. PW1/B (colly) with certificate under Section 65B of Indian Evidence
12. Copy of insurance cover dated Mark D1 (colly) 13.10.2018
13. Letter dated 18.10.2020 along with Ex. PW1/8 (colly) copy of online status
14. Office copy of the legal notice dated Ex. PW1/9 13.07.2020
15. Courier receipts dated 15.07.2020 Ex. PW1//10 (colly)
16. Statement of account along with Ex. PW1/11 (colly) Bankers Book Evidence Act bearing the signature of the then Branch Manager, Sh. Anand Kumar Sinha
17. The Memorandum of Calculation along Ex. PW1/12 (colly) with certificate under Bankers Book Evidence Act
18. Certificate under Bankers Book Ex. PW1/13 Evidence with the signatures of Sh.
Anand Kumar Sinha CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 5 of 17
5. The documents exhibited in testimony of PW2 are as follows:
S. Particulars of the document Exhibit No No.
1. Attested copy of authority letter dated Ex. PW 2/1 25.05.2023
2. Certificate under Bankers Books Evidence Ex. PW 2/2 Act
6. An application under Order 9 Rule 7 CPC was moved on behalf of defendant no. 1. Said application was, however, dismissed in default vide order dated 16.05.2024.
Averments in the plaint
7. The plaintiff is a Bank constituted under The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 with its head office at 112, J.C Road, Bangalore. It has various branches including the branch at Patparganj, at Atlantic Arcade, G-3, First Floor, Plot no. 6, Patparganj Societies, I.P. Extension, Delhi-110092. The plaint has been signed and verified by Sh. Anand Kumar Sinha who is the Branch Manager and duly authorized to do so.
8. The defendant no. 1 is stated to be the mother of borrower Sunny Kamra (since deceased). Defendant no. 1 and her deceased son CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 6 of 17 had approached the plaintiff bank for grant of Canara Vehicle Loan/Car loan for Rs.9,40,000/- with a margin of Rs.2,00,000/- (Rupees Two Lakh only) repayable with interest @8.75% p.a. compounded monthly for purchase of Hyundai, Creta-1.4 CRDI E+STATION WAGON/SUV/BS-IV (05 SEATER). After consideration and examination of the request, the bank was satisfied and sanctioned the loan of Rs. 9,40,000/- (Rupees Nine Lakh Forty Thousand only) with a margin of Rs.2,00,000/- on 29.08.2017. The aforesaid loan was to be repayable in 72 equated monthly installments of Rs.17,061/-. Documents such as the CAN Mobile Loan Agreement (Form NF-928) and Specimen Signature Card both dated 25.09.2017 were executed by the defendant no. 1 and her son.
9. The loan amount was transferred by the plaintiff bank to the account of the car dealer on 25.09.2017. The said car dealer M/s Nimus Motors Pvt. Ltd. issued three receipts: dated 26.09.2017 for Rs. 9,40,000/-; dated 28.09.2017 for amount of Rs.54,000/- and Rs.1,00,000/-; and dated 05.09.2017 for Rs.50,000/- in favour of the deceased Sunny Kamra towards the entire cost of the said hypothecated vehicle. The said car dealer also issued retail invoice of the cost of the said hypothecated vehicle dated 13.10.2017 and the said car dealer had delivered the hypothecated vehicle in the second week of October.
CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 7 of 17
10. The deceased son of defendant no. 1 executed form of particulars of vehicle hypothecated (NF-373) dated 26.10.2017 thereby furnished the requisite details therein in favour of the plaintiff, on behalf of himself and defendant no. 1. Details of hypothecated vehicle are as follow:
a) Brand of vehicle: Hyundai, Creta-1.4 CRDI E+STATION WAGON/SUV/BS-IV 05 SEATER/ COLOUR POLAR WHITE
b) Model/year of make: 09/2017 Fuel: Diesel
c) Body/class: STATION WAGON/SUV
d) Chassis no. MALC181RLHM306224
e) Engine no. D4FCHM416913
f) Registration no. DL-12CN-0123
11. The borrowers were required to pay the EMIs w.e.f October, 2017 onwards. Some payments were made. Son of the defendant no. 1 lastly paid on 02.08.2019. No other payments were made after that. Plaintiff sent reminders, including one on 10.01.2020 to clear the dues.
12. That on 18.01.2020, the plaintiff bank was informed through a letter by another son of defendant no. 1 that Sunny Kamra (principal borrower) was murdered. It was assured that the copy of FIR and other documents will be provided. However, no document was provided, even the details of death, legal heirs and assets of the deceased principal borrower were not provided. On a visit of the bank officials at the address of the borrowers, they were informed that CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 8 of 17 defendant no. 1 was a class one legal heir of the deceased principal borrower. The bank also came to know that the hypothecated vehicle was also missing since the day of the alleged murder. The defendant no. 1 is stated to have not cooperated with the plaintiff bank to reveal the details and whereabout of the vehicle or any claim lodged with the insurance company. However, Rs.1,56,826/- were further paid.
13. It was revealed that the retail business run by the deceased principal borrower had been taken over by defendant no. 1 and her another son. The defendant no. 1 had thus taken over the assets of the deceased principal borrower.
14. The said loan account became highly irregular in terms of payment, despite repeated requests by the plaintiff bank. The loan account of the defendant was classified as NPA on 01.12.2020 as per the guidelines/directives of Reserve Bank of India.
15. Legal notice dated 13.07.2020 was sent to the defendant. No payment was made even thereafter. The plaintiff states that the defendant rendered themselves liable to pay interest. The plaintiff bank also approached East District Legal Authority on 13.01.2022 for pre-litigation mediation. A non starter report was issued by the authority on 26.03.2022.
CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 9 of 17
16. The plaintiff therefore, seeks a decree of amount Rs.6,99,008/- (Rupees Six Lakh Ninety Nine Thousand and Eight only) along with pendente-lite and future interest @ 9.35 % per annum compounded monthly and penal interest @ 2 % simple from the date of filing of the suit till realization.
Averments made in WS
17. In the preliminary objections in the WS, the plaintiff is stated to have concealed true, material and relevant facts. The plaintiff is stated to have not approached the court with clean hands.
18. It is stated that the son of the answering defendant was murdered on 11.02.2019. FIR No. 0001/2020 u/S 302 IPC was registered at PS Laxmi Nagar. The vehicle was with her son at the time of the incident. The vehicle is stated to have been insured. It is contended that instead of making a claim with the insurance company, the plaintiff bank has intentionally and deliberately involved the answering defendant in the present case.
19. The officials of the plaintiff bank are stated to have obtained signatures of the defendant and other family members on several printed and blank papers on the pretext of insurance of the vehicle. The said signatures were done in good faith. The deceased son of the defendant is stated to have repaid most of the amount. It is stated that CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 10 of 17 he had paid Rs.8,76,363/- till 06.10.2021 leaving a balance of Rs.1,81,182/-. Yet, the suit has been filed for Rs.6,99,008/-. The plaintiff bank is thus stated to have filed the present case illegally and unlawfully to extort money from the defendant.
20. The plaintiff is stated to have no cause of action in its favour. Further, the conduct of the plaintiff also dis-entitles it from seeking the assistance of the court. The defendant also claims to have received no notice prior to the filing of the suit. The defendant also mentions about the moratorium announced by the RBI during Covid-19 pandemic.
21. The defendant no. 1 has denied the averments made in the plaint, in reply on merits.
Contentions of the plaintiff.
22. The Ld. counsel for the plaintiff reiterated the averments contained in the plaint. He submitted that the defendant no. 1 did not clear the outstanding dues. Therefore, defendant no. 1 was liable to pay the outstanding dues. He prayed for interest to be awarded at the rate sought as well as for costs of the suit to be awarded to the plaintiff.
CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 11 of 17 Observation of the Court
23. Issue wise discussion is as follows. However, the issues are not discussed in their chronological order. Issue no. 2 and 3 are taken up first, together.
Issue no. 2- Whether the plaintiff is entitled for a decree of permanent injunction against the defendants for restraining them from transferring, alienating or creating any third party interest in respect of hypothecated vehicle bearing registration no. DL 12 CN 0123? OPP Issue No. 3- Whether the plaintiff is entitled for a decree for the sale of the said vehicle to realize the decreetal amount? OPP
24. Defendant no. 1 had availed a loan, along with her son (since deceased) to purchase a vehicle. The vehicle had been hypothecated to the plaintiff bank. During the course of proceedings, the plaintiff bank had taken possession of the vehicle under SARFAESI Act and had sold the same. Further, a statement had been made on behalf of defendant no. 2 that the vehicle shall not be transferred to any person without prior intimation in writing to the plaintiff and obtaining no CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 12 of 17 objection certificate from the plaintiff. In view of the said statement, Ld. Counsel for the plaintiff had stated that his relief against defendant no. 2, for which issue no. 2 was framed, stands satisfied. Further, since the vehicle has already been sold by the plaintiff bank under SARFAESI Act, issue no. 3 has become infructous. Both issues are decided accordingly.
Issue no. 1: Whether the plaintiff bank is entitled for a decree against the defendant in the sum of Rs.6,99,008/- alongwith interest if any and if yes at what rate and for which period? OPP
25. Defendant no. 1 alongwith her son (since deceased) had availed the vehicle loan. During his life time, the deceased son of defendant no. 1 failed to maintain financial discipline. Payments were not made as per agreement. Despite legal notice being served, the dues were not cleared by defendant no. 1. As per the records of the plaintiff bank, maintained in the ordinary course of its banking business, a sum of Rs. 6,99,008/- remained due.
26. It has further been deposed in the evidential affidavit of Ms. Megha Sharan, PW2 that:
CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 13 of 17 As per the record of plaintiff bank as maintained in the ordinary course of its banking business that as per the provisions of Section 34 of CPC coupled with the provisions of Section 2A of Commercial Courts Act 2015, the plaintiff bank has sought the relief of interest over the claim amount of Rs.6,99,008/- @9.35% per annum compounded mnthly floating (whereas the contractual rate of interest as agreed by he defendant no. 1 on 29.08.2017 was 8.75% per annum compounded monthly (floating) from the date of filing the present suit till its realization as the same is notified/agreed rate of interest qua the vehicle loan, granted/to be granted by the plaintiff bank w.e.f 29.08.2017 onwards. Moreover, the plaintiff bank is also claiming penal interest @2% p.a. simple w.e.f 01.06.2019 onwards as per the agreed rate as per the aforesaid loan agreement dated 29.08.2017, executed by defendant no. 1. The interest on the loan amount of Rs.9,40,000/- is being calculated w.e.f 29.08.2017 onwards at the initial rate of 8.75% p.a. compounded monthly floating then lastly @ 9.35% p.a. compounded monthly floating till date. As per the said statement of account, the book liability of the principal loan amount alongwith interest @ 9.35 % p.a.. compounded monthly becomes Rs.6,67,735/10 ps. As on 10.08.2020 whereas the unapplied interest for period w.e.f 11.08.2020 till 06.09.2020 @ 9.35 % p.a. compounded monthly becomes Rs.4978.70 ps and penal interest is Rs.13,454/30 ps, w.e.f. 01.06.2019 till 06.09.2020 as claimed by the plaintiff bank as on 06.09.2020 besides other miscellaneous charges of Rs.12840/-. Therefore, the plaintiff bank is further entitled to claim balance amount of Rs.3,28,125.45 as on May 2023) (being balance amount out of claim amount of Rs.6,99,008/- minus the adjusted amount as received from liquidated FDR/KDRs till May 2023) along with pendente lite and future interest 9.35% p.a. compounded monthly CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 14 of 17 and penal interest @ 2% simple over the claimed amount of rs.6,99,008/- till 10.05.2023 and then over Rs.3,28,125.45 as balance after adjusting FDR/KDRs till May 2023), from the defendant no. 1 towards the pendente lite and future till its realization, adjustment of all the payments received / adjusted during the course of the proceedings of the present Civil Commercial Suits.
27. PW 2 Sh. Prabhat Kumar has further deposed in his evidential affidavit Ex. PW 2/X as follows:
As per the record of plaintiff bank as maintained in the ordinary course of its banking business and during the course of proceedings of the present suit, the plaitniff bank has adjusted the sum of Rs. 2,18,573/- as on 14.12.2020, Rs.2,18,818/- as on 28.09.2021 and Rs.16,764.65p on 27.07.2020 with Rs.116/- on 01.08.2022 under general lien of the bank. As such the plaintiff bank has adjusted total sum of Rs.4,54,271.65p during the course of proceedings of the present suit by the proceeds of the liquidated FDR/KDRs. Now as on 10.05.2023, the plaintiff bank is further entitled to claim balance amount of Rs.2,44,736.35p as on May, 2023 along with pendente lite and future interest @ 9.35% p.a. compounded monthly and penal interest @ 2 % simple over the claimed amount of Rs.6,99,008 till 10.05.2023 and then over Rs. 3,28,125.45p as balance after adjusting FDR/KDRs till May 2023 till realization, from the defendant no. 1 towards pendente lite and future till its realization.
28. The statement of account Ex. PW 1/11 placed on record is till 31.08.2020 and shows the balance as Rs.6,67,735.10p. The total CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 15 of 17 liability in respect of the vehicle loan including unapplied interest, penal interest and miscellaneous charges has been shown in the statement Ex. PW 1/12, as Rs.6,99,008/-. The updated statement of account Ex. PW 2/2 further shows the adjusted amount as Rs.4,54,271.65p leaving a balance of Rs.2,44,736.35p. The plaintiff bank is thus entitled to a recovery of Rs.2,44,736.35p, rounded off to Rs.2,44,736/-.
29. Pendente lite and future interest has been sought by the plaintiff @ 9.35% p.a. compounded monthly and penal interest @ 2% simple. The same was found to be excessive. Interests of justice would be served by granting pendente lite and future interest @ 8% per annum.
Relief
30. In the light of the above discussions, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for the amount of Rs.2,44,736/- (Rupees two lakhs forty four thousand seven hundred and thirty six only) with interest @ 8% per annum from the date of filing of the suit (i.e. 05.09.2020) till realization of the amount. Costs of the suit are also awarded to the plaintiff.
CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 16 of 17
31. Decree sheet be accordingly drawn. Copy of judgment be supplied to the Ld. Counsel for the parties in terms of Order XX Rule 1 CPC, as amended by the Commercial Courts Act, 2015.
32. File be consigned to record room thereafter.
Digitally signed by RUBY ALKA RUBY ALKA GUPTA GUPTA Date: 2025.06.04 10:40:44 +0530 Announced in the Open Court (RUBY ALKA GUPTA) on 24th day of May, 2025 District Judge (Comm. Court)-02, East District/KKD Courts/Delhi CS(COMM) 167/20 Judgment dated 24.05.2025 Canara Bank Vs. Smt. Krishna Devi Kamra Page No. 17 of 17