Delhi District Court
Inter Alia Having Its Branch Office At vs Mr. Om Prakash (Borrower) on 13 January, 2021
IN THE COURT OF SH. JITENDRA SINGH, ADDITIONAL
DISTRICT JUDGE -06: CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS No. 18646/16
IN THE MATTER OF:-
M/s. ICICI Bank Ltd.
Having its registered office at :
Landmark, Race Course Circle,
Vadodra-390007.
Inter alia having its branch office at:
E-Block, Videocon Tower,
Jhandewalan Extn.,
New Delhi.-110055.
..........PLAINTIFF
VERSUS
1. Mr. Om Prakash (Borrower)
H.No. 682, Old Vijay Nagar,
Near Main Market, Vijay Nagar &
Sunder Puri Road,
Ghaziabad-201009.
ALSO AT:
AC Tech-I, Electric Department
Northern Railway, SSE, ACC, Delhi Main,
Platform No. 14, Old Delhi Railway Station,
Delhi-110006.
ALSO AT:
Plot No. 21A, Khasra No. 287/3,
New Shastri Nagar,
Ghaziabad-201010.
2. Mrs. Kamlesh (Co-Borrower)
CS No. 18646/16,
ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 1/9
W/o Mr. Om Prakash
H.No. 682, Old Vijay Nagar,
Near Main Market Vijay Nagar & Sunder Puri Road,
Ghaziabad-201009.
ALSO AT:
Plot No. 21A, Khasra No. 287/3,
New Shastri Nagar,
Ghaziabad-201010.
3. Mr. Vijay Dhar Prasad (Guarantor),
Plot No. 21A, Khasra No. 287/3,
New Shastri Nagar,
Ghaziabad-201010.
ALSO AT:
C-200, Sector-9, New Vijay Nagar,
Ghaziabad-201003.
.....DEFENDANTS
Other Details :
Date of Institution : 09.10.2013
Date of Reserving Judgment : 12.01.2021
Date of Judgment : 13.01.2021
SUIT FOR RECOVERY OF RS. 6,02,191/-
JUDGMENT
Facts as averred in the Plaint:
1(a) Succinctly stated, the case of plaintiff is that the plaintiff is the body incorporated under the provision of the CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 2/9 Companies Act, 1956 and is having its registered office at Landmark, Race Course Circle, Vadodara and its branch office at E-Block, Videocon Tower, Jhandewalan Extension, New Delhi and defendant is borrower of plaintiff bank.
1(b) It is averred that defendants no. 1 and 2 had availed loan facility from the plaintiff bank under its Home Loan Scheme vide loan agreement no. LBGHZ00000706842 dated 31.03.2004 against mortgage of their property bearing Plot No.21A, Khasra No. 287/3, New Shastri, Ghaziabad-201010. It is further averred that the defendant no. 3 stood as the guarantor in respect of the aforesaid loan.
1(c ) It is further averred that in terms of the aforesaid agreement, a total sum of Rs.2,42,100/- was disbursed, which was repayable alongwith the floating rate of interest @7.75% per annum in 144 EMIs of Rs.5,433/- each. Since the defendants failed to adhere to the financial discipline of the repayment of balance loan amount, the plaintiff sent a notice dated 30.05.2011 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to defendant no. 1 and also got published the same on 19.06.2011 in newspapers CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 3/9 'Rashtriya Sahara' and 'Business Standard', but the defendants failed to repay the outstanding amount.
The plaintiff has prayed for a decree of recovery of Rs.6,02,191/- alongwith interest @24% per annum 06.09.2013 till its realization.
Proceedings before the beginning of trial:
2(a) Record reveals that despite service of summons on defendant no. 1, none on his behalf had appeared and as such, the defendant no. 1 was proceeded against ex-parte on 20.01.2014. Since no steps had been taken for service on the defendants no. 2 and 3, the suit was dismissed against them vide order dated 29.09.2014. Subsequently, vide judgment dated 24.02.2015 passed by the then ADJ-03, Central District, Tis Hazari Courts, Delhi, the suit was decreed against defendant no. 1 only for a sum of Rs.6,02,191/- along with a simple interest @6% per annum on the principal sum from 06.09.2013 till its realization. 2(b) Record further reveals that upon the application under Order IX Rule 4 CPC moved on behalf of the plaintiff, the aforesaid order dated 29.09.2014 was set aside and the suit of the CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 4/9 plaintiff was restored to its original number qua defendants no. 2 and 3 vide order dated 16.03.2016. However, despite service of summons on defendants no. 2 and 3 by way of publication in 'The Statesman' dated 28.10.2016 and 'Veer Arjun' dated 25.10.2016, they did not appear and therefore, they were proceeded against ex-
parte vide order dated 16.01.2017. Evidence:
3. To prove its case, the plaintiff examined Shri Lokesh Jaiman, Authorized Representative of the plaintiff bank as PW1.
4. I have heard the final arguments through video conferencing and carefully gone through the material as placed on record.
5. PW-1 Shri Lokesh Jaiman, Authorized Representative of the plaintiff bank filed his affidavit of evidence Ex.PW1/X wherein he reiterated the averments made in the plaint and relied on the following documents:-
i. Power of Attorney in favour of Mr. Anuj Jain is CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 5/9 Ex.PW1/1;
ii. Copy of Power of Attorney in his favour is Ex.PW1/1A (OSR);
iii. House Loan Agreement is Ex.PW1/2;
iv. Declaration is Ex.PW1/3;
v. Personal Guarantee is Mark X;
vi. Offer letter is Ex.PW1/5;
vii. Agreement to sell and sale deed are Ex.PW1/6-colly;
viii. Notice dated 30.05.2011 alongwith its postal receipt are
Ex.PW1/7-colly;
ix. Newspaper "Business Standard" dated 19.06.2011 is
Mark Y;
x. Newspaper "Rashtriya Sahara" dated 19.06.2011 is
Mark Z;
xi. Statement of account is Ex.PW1/10;
xii. Certificate under Section 65B of Indian Evidence Act
is Ex.PW1/11.
6. As referred to above, defendant no. 1 was proceeded against ex-parte vide order dated 20.01.2014 and the defendants no. CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 6/9 2 and 3 were proceeded against ex-parte vide order dated 16.01.2017. Perusal of the record reveals that the defendants never appeared before the court to contest the case on legal aspect. Appreciation of evidence:
7(a) The plaintiff bank proved vide House Loan Agreement (Ex.PW1/2) that that defendants no. 1 and 2 had availed loan facility from it under its Home Loan Scheme vide loan agreement no. LBGHZ00000706842 dated 31.03.2004 against mortgage of their property bearing Plot No.21A, Khasra No. 287/3, New Shastri, Ghaziabad-201010. The defendant no. 3 stood as the guarantor in respect of the aforesaid loan vide Personal Guarantee (Mark X).
7(b) In terms of the aforesaid House Loan Agreement (Ex.PW1/2), a total sum of Rs.2,42,100/- was disbursed, which was repayable alongwith the floating rate of interest @7.75% per annum in 144 EMIs of Rs.5,433/- each. However, since the defendants failed to adhere to the financial discipline of the repayment of balance loan amount, the plaintiff sent a notice dated 30.05.2011 (Ex.PW1/7-colly) under Section 13(2) of the Securitization and CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 7/9 Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to defendant no. 1 and also got published the same on 19.06.2011 in newspapers 'Rashtriya Sahara' and 'Business Standard' (Mark Y), but the defendants failed to repay the outstanding amount.
7(c) The plaintiff has also furnished Certificate under Section 65B of Indian Evidence Act (Ex.PW1/11) in support of statement of account (Ex.PW1/10) as required by law.
8. There is nothing on record to disbelieve the genuineness of documents Ex.PW1/1 to Ex.PW1/11 proved by PW1 Shri Lokesh Jaiman. His testimony remained unrebutted and uncontroverted.
9. It is not out of place to mention that the instant suit of the plaintiff was decreed against defendant no. 1 only for a sum of Rs.6,02,191/- along with a simple interest @6% per annum on the principal sum from 06.09.2013 till its realization, vide judgment dated 24.02.2015 passed by the then ADJ-03, Central District, Tis Hazari Courts, Delhi. It is settled law that co-borrower is always CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 8/9 liable for the payment of the loan whether the principal borrower pays back or not. Similarly, the liability of guarantor is well established and co-extensive with that of the borrower.
Relief:
10. In view of the facts and circumstances of the case coupled with evidence adduced on record by the plaintiff, the suit is decreed and plaintiff is held entitled to recover amount of Rs.6,02,191/- alongwith a simple interest @6% per annum on the principal sum as mentioned from the date, i.e. 06.09.2013, it became due till its realization from defendants no. 2 and 3, jointly or severely. No order as to costs. Decree sheet be prepared accordingly.
11. File be consigned to Record Room as per rules after compliance of necessary legal formalities. Digitally signed by JITENDRA SINGH JITENDRA Announced in open Court SINGH Date:
2021.01.15 Dated: 13.01.2021 13:28:48 +0530 (JITENDRA SINGH) Addl. District Judge-06 (Central), Tis Hazari Courts, Delhi CS No. 18646/16, ICICI Bank Ltd. Vs.Om Prakash & Ors. Page No. 9/9