Delhi District Court
Icici Bank Limited vs Souvik Ray on 25 October, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 2548/2021
CNR No. DLCT010093992021
DLCT010093992021
M/S ICICI BANK LTD,
Having its Registered Office At:
ICICI Bank tower, Near Chakli Circle,
Old Padra Road, Landmark, Race Course Circle,
Vadodara-39007 (Gujarat), India,
Having its Branch Office At:
E-3, Jhandewalan, Near Jhandewalan,
Near Jhandewalan, Metro Station,
New Delhi-110055
Though its Authorised Representative Shri Nitesh Vashisht
....Plaintiff.
Versus
Souvik Ray,
S/o Sh. Subrata Kumar Ray,
R/o Landcraft golf Links, NH-24,
Flat No.-217, Tower-4C, Ghaziabad,
Uttar Pradesh-201001.
Mobile No. 9899605935
Email ID: [email protected].
Also At:
5E/AS3/Type A Ashiyana Society,
Shankarpur, Durgapur-713212
And
Emmar MGF Lands Ltd,
Designation: Manager,
CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 1 of 23
Digitally
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
Date:
GUPTA 2024.10.28
17:58:24
+0530
Emaar Business Park,
MG Road, Sikanderpur,
Sector-28, Gurgaon-122002
....Defendant.
SUIT FOR RECOVERY OF Rs. 9,97,895/-.
Date of institution of suit : 28.07.2021
First Date before the undersigned : 21.03.2024
Date of hearing of final argument : 22.10.2024
Date of Judgment : 25.10.2024
Appearance(s): Sh. Manish Yadav, Adv., Ld. Counsel for plaintiff.
Sh. Naresh Kumar, Adv., Ld. Counsel for the defendant.
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the suit of Plaintiff-Bank for recovery of Rs.9,97,895/- alongwith interest thereon @ 12.10% per annum pendentelite and future from the date of filing of the suit till its realization. The plaintiff has also prayed for costs of the suit.
(B) PLAINTIFF'S CASE
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) the plaintiff is a body corporate incorporated under the Indian Companies Act, 1956 and is having its registered office at ICICI Bank Landmark, Race Course Circle, Vadodara-390007, Gujarat and its branch office at E-1/3, Jhandewalan, near Jhandewalan Metro Station, New Delhi-110055. The present case relates to Jhandewalan Branch of the plaintiff bank represented by its authorized representative namely Mr. Nitesh Vashisht stated to be empowered to sign, institute and prosecute CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 2 of 23 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.10.28
17:58:37
the suit and do all such acts and deeds on behalf of the plaintiff-Bank.
The plaintiff has, however, later substituted its Authorized Representative, as prayed and allowed vide orders of the Court dated 15.10.2024. Accordingly, Mr. Jitender Mehindiratta was substituted as Authorized Representative of the plaintiff -bank.
2.2.) It has been averred in the plaint that the defendant approached and requested the plaintiff bank for grant of Personal loan of Rs.10,00,000/- in the month of November, 2018 and agreed to abide by the terms and conditions applicable at the time of execution of loan documents and upon assurance by the defendant that he shall make the payment regularly as per the repayment schedule, the plaintiff-Bank sanctioned a loan of Rs.10,00,000/- on 29.11.2018 and disbursed an amount of Rs.9,91,741.18ps to the defendant vide loan account no. LPDEL00038282816 after deducting process fee and other charges. The defendant agreed to pay the said loan amount in 60 equated monthly installments of Rs.22,340/- each including interest as per the repayment schedule which was extended to 68 EMIs due to Covid-2019 pandemic situation and moratorium being given as per Government Policy. Defendant pursuant to the sanction of the aforesaid loan amount, failed to adhere to the financial discipline of the repayment and payment of EMIs became irregular. The defendant as on the date of filing of the present suit, has paid an amount of Rs.3,44,071/- (15 EMIs) and had defaulted for repayment of Rs.2,14,429/- (10 EMIs) and late payment charges and cheque bouncing charges of Rs.31,717/- besides future installments of Rs.8,48,203/-(38 EMIs) as on 25.06.2021.
Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 3 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:58:43 +0530 2.3). Repeated requests, reminders and notices were sent by and on behalf of the plaintiff-Bank from time to time, requesting and advising the defendant to clear outstanding loan amount, but the defendant completely failed and neglected to pay the same. The plaintiff-Bank then recalled the Loan Facility available to the defendant by way of sending Recall Notice dated 30.01.2021 demanding to pay the whole outstanding amount. Defendant failed to make the payment against dues, despite repeated calls and demand notice. Hence, the plaintiff-Bank has come up with the present suit for Recovery of outstanding amount of Rs.9,97,895/- due as on 25.06.2021 plus future and pendentelite interest @ 12.10% per annum, from the date of filing of the present suit till realization along with costs of the suit.
(C) DEFENDANT'S CASE:-
3. On receipt of summons for settlement of issues, the defendant contested the suit by filing a detailed Written Statement thereby taking various preliminary objections that:-
3.1) The suit is baseless and misconceived and is nothing but gross misuse of process of law and no liability for any payment of loan amount allegedly can be fastened on the defendant. It is contended that the plaintiff has failed to disclose any cause of action whatsoever which may have arisen in his favour and against the defendant. It has been contended that the plaintiff has no locus-standi to file the present suit against the defendant and the plaintiff is now trying to take advantages of his own wrongs. It has been further contended that the defendant has CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 4 of 23 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:58:48 +0530 never taken a loan of Rs.10,00,000/- from the plaintiff bank and never signed the relevant papers. It has also been averred that the plaintiff has not come to this court with clean hands and has suppressed material facts which were very much in its knowledge to file the present suit malafidely with the intention to harass the defendant.
3.2) It has also been contended that the suit of the plaintiff is not maintainable as the plaintiff has twisted, concealed and distorted the true facts for the purpose of achieving the desired illegal object. The plaintiff is stated to have filed the present suit with malafide intention and to unnecessary harass and humiliate the defendant. It has also been contended that the plaintiff has filed the present suit on the basis of false and fictitious documents and is liable to be prosecuted under section 340 Cr.P.C.
3.3) On merits, all the allegations made in the plaint are denied as incorrect and it has been contended by the defendant that the defendant has never taken a loan of Rs. 10 lacs from the plaintiff bank and never signed the loan documents. It has been averred that the defendant has only taken a loan of Rs.5,30,000/- and the plaintiff has disbursed Rs.5,08,094/-. It has further been contended that the defendant never received any notice dated 30.01.12021 from the plaintiff bank.
3.4) The defendant has however admitted that in the month of November, 2018, the defendant received a sum of Rs.4,46,773.18ps from the plaintiff bank in his account but the plaintiff never asked for any further loan and not signed any agreement with the plaintiff bank. It has been denied that the defendant agreed to repay the said loan amount alongwith the interest @ 12.10% in 68 Equated Monthly Installments of CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 5 of 23 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.10.28 GUPTA 17:58:52 +0530 Rs.22,340/-
3.5). It has been reiterated that the defendant has not executed any document in respect of loan of Rs.10 lacs in respect of loan agreement no. LPDEL00038282816. It has further been contended that the Personal Loan Application form has neither been filled nor signed by the defendant and even the Credit Facility Application form has not been filled and signed by the defendant. It has been prayed that the suit be dismissed with exemplary costs.
4. The plaintiff has not preferred any replication to the Written Statement filed by the defendant.
(D) CRYSTALISING THE DISPUTE :-
5. On the pleadings of the parties and documents placed on record and after perusing the affidavit of admission & denial of the defendant and the following issues were framed for adjudication vide order dated 03.11.2023.
ISSUES.
(i) Whether the case of the plaintiff is false and liable to be dismissed as the defendant has never taken loan from the plaintiff bank and never signed any document ?OPD
(ii) Whether the plaintiff is entitled to recover the suit amount of Rs. 9,97,895/-from the defendant ?OPP
(iii) Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?OPP
(iv) Relief.
CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 6 of 23 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:58:57 +0530 (E) EVIDENCE OF PLAINTIFF.
6. Plaintiff in support of its case got examined its Authorized Representative namely, Mr. Jitender Mehndiratta, whose deposition has been tendered as PW1 and his Examination-in-Chief by way of affidavit as Ex.PW1/A. The witness reiterated the averments made in the plaint on oath and deposed that he is authorized to depose before the Court vide Power of Attorney executed by the Plaintiff-Bank in his favour which is tendered as Ex. PW1/1.
7. PW1 has testified that defendant availed the Personal Loan Facility from the Plaintiff-Bank for which he approached and requested the plaintiff-Bank for grant of personal loan in his favour, for a sum of Rs.10,00,000/- vide Original Preliminary Credit Facility Applicaton form and Credit Facility Application Form duly proved as Ex.PW1/2 and Ex.PW1/3 respectively. The plaintiff-Bank after due verification and details, sanctioned the loan on 29.11.2018 and disbursed an amount of Rs.10,00,000/- to the account of the defendant after deducting an amount towards processing fees & other charges as per request by the defendant in terms of the loan documents on the same day with interest thereon @ 12.10% per annum vide loan account bearing no.LPDEL00038282816, vide sanction letter dated 29.11.2008 Ex. PW-1/4. The said loan was to be repaid in 68 EMIs of Rs.22,340/- each. Defendant failed to comply with the terms and conditions of the aforesaid Loan Agreement and failed to pay the outstanding amount upon which the plaintiff-Bank issued a Loan Recall Notice dated 30.01.2021 Ex.PW1/5 upon the defendant calling upon him to repay the outstanding amount. Despite notice, Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 7 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:01 +0530 defendant neither replied the notice nor paid the outstanding dues. The witness has tendered the postal receipt document as Mark 'X'. The witness has further deposed that as per Foreclosure Statement of Account dated 25.06.2021 maintained by the plaintiff-Bank, the defendant is liable to pay a sum of Rs.9,97,895.70ps. As the defendant failed to make the payment despite repeated calls and legal notice, present Suit for Recovery of total outstanding amount of Rs.9,97,895.70ps-, due as on 25.06.2021, plus accrued interest, has been filed on behalf of plaintiff.
Foreclosure of Account Statement and the Statement of account has been relied upon as Ex.PW1/6 and Ex.PW1/7 respectively. The requisite Certificate U/s.65B of the Indian Evidence Act,1872 is tendered as Ex.PW1/8. The requisite Certificate Under Section 2A of Banker's Book Act, 1891 is tendered as Ex.PW1/9.
8. The witness was subjected to a detailed cross-examination by Ld. Counsel for defendant. PW-1 has deposed that he could tell only after going through the record the date and place where the loan documents were filled. He has further deposed after seeing the record that the loan application form Ex.PW1/2 is dated 22.11.2018 and he could not tell the place where the said document was executed as no place of execution of the document is mentioned on the same. The witness has admitted that the fact regarding loan documents were executed on 29.11.2018 is not mentioned in para No.5 of his affidavit. He has also admitted that the documents Ex.PW1/2 & Ex.PW1/3 do not bear the signature of any bank officials. The witness has reiteated that he has filed the statement of account of the defendant which is Ex.PW1/7, in which the loan amount Digitally signed by CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 8 of 23 MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:05 +0530 of Rs.10,00,000/- is duly reflected. He has voluntarily deposed that there are four entries of 29.11.2018 in the Statement of Account Ex.PW/7 as the first entry is pertaining to the loan amount of Rs.10,00,000/-; the second entry is the sum of procecessing fee; the third entry of Rs.4,64,773/- pertains to fund transfer from the link loan and the balance in the said loan account was deducted and transferred to this loan account. He has deposed that a sum of Rs.5,26,968/- i.e. the fourth entry is the amount after deducting fund transfer and process fee. The total amount comes to Rs.10,00,000/-. He has further deposed that no document has been filed by the plaintiff bank to show the fund transfer of Rs.4,64,773/- from another loan account of the defendant and there is no document to show any request made by the defendant for foreclosure of the earlier loan. The witness has however negatived all suggestions of defendant regarding never availing loan of Rs. 10,00,000/- from the plaintiff, or signatures of the defendant not being made on Ex. PW-1/2, Ex. PW-1/3 or Direct Debit Mandate Form Mark "A". The witness has also refuted the suggestion that defendant never visited the Videocon Tower branch of the plaintiff on 22.11.2018 and 29.11.2018.
9. The plaintiff bank did not examine any other witness and vide statement dated 27.08.2024, the evidence of the plaintiff was closed.
(F) DEFENDANT'S EVIDENCE :-
10. The defendant did not lead any evidence and the same was closed at the request of the Ld. Counsel for defendant vide statement dated 15.10.2024, before the Court.
Digitally signed by CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 9 of 23 MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:10 +0530 (G) ARGUMENTS ADDRESSED:-
11. The matter was vehemently argued by both the Ld. Counsels for a considerable time and that too with all the force at their command citing judgments of Hon'ble Supreme Court and Hon'ble High Court of Delhi.
The same are being mentioned in brief and shall be dealt with at appropriate places in the forthcoming paragraphs.
ARGUMENTS OF PLAINTIFF.
12. Ld. Counsel for plaintiff bank Shri Manish Yadav has vehemently argued that a personal loan facility to the tune of Rs. 10 lakhs was sanctioned to the plaintiff at his request on 29.11.2000 and the admissible amount after due deduction was also duly disbursed in the Saving Bank Account of the defendant which the defendant has also admitted categorically in his Written Statement. As such, the plaintiff was required to repay the loan amount as per repayment schedule which he has utterly failed. As of now, as per Statement of Account maintained by the plaintiff bank in the ordinary course of its banking transactions a sum of Rs.9,57,895/70ps is due and outstanding which the plaintiff is required to pay as he has availed the loan facility from the plaintiff bank. It has been argued that the plaintiff has failed to disclose or prove any substantial defence and accordingly, the plaintiff bank is not only entitled to the suit amount, interest but also exemplary costs. It has finally argued that the economic health of the bank and in turn the country can be maintained only if the honest borrowers are protected and those in default are subjected to due process of law.
Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 10 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:19 +0530 ARGUMENTS OF DEFENDANT:
13. Ld. counsel for the defendant Shri Naresh Kumar, on the other hand has vehemently opposed the arguments of the Ld. Counsel for the plaintiff and has argued that the suit is being filed without any cause of action and is not maintainable as the same is based on forged documents and statement of account. He has vehemently argued that the defendant has neither taken any loan from the plaintiff bank nor has executed or signed any document, much less to agree for repayment of the loan in 68 monthly installments of Rs.22,340/-. He has admitted that the defendant has taken a loan of Rs.5,30,000/- only from the plaintiff bank and was disbursed the amount of Rs.5,08,094/- only against which he is regularly paying the installments. Without prejudice, Ld counsel for defendant has argued that the documents relied upon by the plaintiff bank namely, the Preliminary Credit Application and the Credit Facility Application Form was not signed by any bank official. Ld. counsel has finally argued that there has been no stipulation/agreement regarding charging of interest on delayed payments much less at the rate of 12.10% per annum.
14. On the legal aspect, ld counsel for defendant has relied upon various pronouncements of law laid down by Hon'ble Supreme Court and High Courts on the aspect of burden of proof, evidence beyond pleadings not admissible, power of the court to compare the signatures u/s.73 of the Evidence Act and the attesting witness according to Section 68 of Evidence Act. He has relied upon the following judgments in support of his contentions which shall be dealt with at appropriate places are as Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 11 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:24 +0530 under:-
(1) Kannamma v. P. Sagunthala, 2017 SCC Online Mad.34812 (2) Thiruvengadam Pillai v. Navaneethammal, (2208) 4 SCC 530 (3) Rameshwar Dass v. State of Punjab,(2007) 14 SCC 696 (4) Biraji v. Surya Pratap, (2020) 10 SCC 729 (5) Deepinder Singh Mann v. Ranjit Kaur, 2014 SCC Online P & H 4826 (6) Hiralal v. Board of Revenue 2014 (4) WLN 415(Raj.) (7) Lachman Singh v. Surendra Bahadur Singh, 1932 SCC Online All 88 (8) S.P.A Baskaran v. N. Sureshkumar MANU/TN/5565/2023 (9) K. Arjuna Rao v. Katuru Yeukondalu, 2017 SCC Online Hyd (H) ANALYSIS & DETERMINATION:-
15. Submissions of the Ld. Counsel for the plaintiff have been heard and the entire record including the pleadings, documents and evidence on record has been appreciated. I have also given a thoughtful consideration to the aforesaid. My issue-wise determination is as under:-
ISSUE NO. 1: "Whether the case of the plaintiff is false and liable to be dismissed as the defendant has never taken loan from the plaintiff bank and never signed any document ?OPD ".
16. The onus to prove this issue was upon the the defendant who has taken a preliminary objection that the case of the plaintiff is false and liable to be dismissed as the defendant has never taken the subject loan from the plaintiff bank and never signed any document. The defendant has, however, neither entered into the witness box nor has led any Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 12 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:29 +0530 evidence in support of the aforesaid issue. He has even not filed any document to support his contention or even to controvert the claim of the plaintiff bank. Ld counsel for defendant during course of arguments has tried to vehemently argue that the burden of proving the aforesaid fact should have been on the plaintiff bank as the defendant in his Written Statement has denied of having taken any loan from the plaintiff bank besides denying the signatures on the documents. He has relied upon the judgment of Hon'ble Madras High Court in Kanamma(supra), Hon'ble Supreme Court in Thiruvengadam Pillai(supra), Hon'ble Division Bench of Madras High Court in SPA Bhaskaran(supra), and finally of Hon'ble Andra High Court in K.Arjun Rao(supra). If all the judgments are carefully perused, it may be seen that all these judgments lay down the general principal of law regarding the fact that the plaintiff has to establish its case by leading cogent evidence on the aspects on which the plaintiff intends to rely upon including the documents for its entitlement. In fact, the Hon'ble Madras Court in SPA Bhaskaran(supra) has gone to the extent of outlining that the burden of proof in case of allegations of forgery are required to be proved succinctly by leading an evidence and not merely by alleging the fact that the same is forged. The judgment of Hon'ble Supreme Court in Kanamma(supra) does not apply to the facts of the case inasmuch as the same deals with a case of a thumb impression which was smuged and compared by the trial court and not of a signature which is disputed and the Hon'ble Apex court has clearly laid down that the responsibility of the court in case of a disputed sale deed was onerous inasmuch as the finding should not have been given only on the casual perusal of smuged disputed as well as admitted thumb impression. It Digitally signed by CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 13 of 23 MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:34 +0530 may be seen that the Indian Evidence Act, 1872 in Chapter 7 lays down the principal of burden of proof and the burden of proof as per Section 101 of the Act lies on the person who desires any court to give judgment as to legal right or liability dependent on existence of facts which he asserts. The Section further lays down that it is the person who asserts a fact must prove the existence of that fact. Section 103 which is a complementary to Section 101 lays down that the burden of proof in respect of a particular fact lies on the person who wishes the court to believe in its existence. Similarly Section 102 of the Act lays down that the burden of proof in a suit or proceedings lies on the person who would fail if no evidence at all were given on either side. Now, in this case, Ld counsel for plaintiff has tried to pursuade the court regarding onus of proof on the issue which was clearly laid on the shoulders of the defendant which he has failed to discharge. Admittedly, the burden of proof to prove a fact lies on the person who asserts a fact and wants the court to believe in its existence while onus to prove entitlement in respect of the relief claimed by the plaintiff is certainly on the plaintiff itself.
17. In this case, the onus is on the defendant to prove that he has not taken any loan from the plaintiff bank or has not executed any document or signed the same, moreso, when the defendant himself admits in its Written Statement of having received Rs.4,64,773.18ps in his saving bank account in the month of November, 2018, the period in which, the alleged loan was sanctioned to the defendant. It was for the defendant to controvert the existence of either Ex.PW1/4 whereby which, the loan was sanctioned or the existence of Statement of Account Ex.PW1/7 duly Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 14 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:38 certified by the plaintiff bank u/s.2A of the Banker's Book of Evidence Act, 1891 Ex.PW1/9. The defendant was required to at least bring before the court his bank statement or even his passbook to prove a fact that he has never obtained any loan from the plaintiff bank and has never executed any document for the same. The silence of the defendant in receiving the amount in his account cannot be simply ignored as a fact which he was required to refute. The payment of 15 EMIs of Rs.22,340/- that too by way of cheque payments for a period spread over 15 months between 05.01.2019 uptil 05.03.2020 vide Ex.PW1/7 further corroborates that the defendant has been making payment of EMIs of specified amount for initial 15 months by way of cheques. It is for the defendant to explain as to how the aforesaid payments have been made by him to the plaintiff bank if no loan was ever taken. It is not the case of the defendant that the payments were automatically debited from his account by the plaintiff bank without his knowledge, rather the fact that the payments have been made by way of cheques for a continuous period of 15 months shows that the defendant was conscious of not only the loan amount, the terms of repayment, the amount of EMIs but also the repayment schedule. All this clearly shows that the defence of the loan not being taken or the documents Ex.PW1/2 and Ex.PW1/3 being not executed by the defendant is just taken for the purpose of defence without actual intention of proving the same. The defendant has failed to enter the witness box for reasons best known to him despite the fact that he asserts the factum of the documents being forged and fabricated. Even if the best case of the defendant is taken and the signatures of the defendant are seen on Ex.PW1/2 and Ex.PW1/3, the same are on all CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 15 of 23 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:41 +0530 pages and sometimes more than once and when the same are compared from his signatures on the pleadings and the affidavit filed on judicial record, the same shows a clear structural similarity in terms of Section 73 of the Indian Evidence Act. Hon'ble Rajasthan High Court in Heera Lal (supra) has clearly laid down that the court in its discretion can compare the signature either itself or in extreme circumstances, sent the same for Expert Opinion.
18. Accordingly the facts and circumstances discussed above clearly shows that the defendant has taken the defence without any intention to prove the same. The defendant was required to prove this issue by way of a clear and cogent evidence but has decided not to lead any evidence, so much so that it has failed to file any document or his bank statement or counter statement of account in support of its case. In the absence, thereof, the court is of the considered opinion that the defendant has utterly failed to discharge the onus to prove this issue even on the yardstick of preponderance of probabilities.
19. This issue is, accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO.2: "Whether the plaintiff is entitled to recover the suit amount of Rs.9,97,895/- from the defendant ?OPP"
20. The onus of proving this issue was held upon the plaintiff and since the issue relates to the entitlement of the plaintiff bank to the suit amount, the same is pivotal to the entire controversy between the parties. It is a settled proposition of law that the plaintiff bank has to establish his MUKESH KUMAR CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 16 of 23 GUPTA Digitally signed by MUKESH KUMAR GUPTA Date: 2024.10.28 17:59:46 +0530 entitlement by way of leading cogent evidence and is also required to stand on his own legs without relying upon the weaknesses of the defendant. Accordingly, the onus to prove the averments and claim rests entirely upon the plaintiff who has to discharge the burden of proof to establish its case. In civil litigation, this burden is sufficiently discharged, if the plaintiff is able to prove its case on the yardstick of preponderance of probabilities. It is the law of land as re-affirmed by the Hon'ble Apex Court in Adiveppa V. Bhimappa (2017) 9 SCC 586 where the Hon'ble Court has held:-
"It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleadings and adequate evidence (oral and documentary) in support thereof."
21. At the outset, the court shall take up the issue of limitation which is a legal issue, which the court is required to determine for the purpose of deciding the entitlement of plaintiff to the relief claimed. As per Section 3 of the Limitation Act, 1963, any suit, application or appeal has to be filed within the period of limitation as prescribed under the schedule annexed to the Limitation Act and subject to provisions contained in Section 4 to 24. This has to be done irrespective of the fact whether limitation has been set up as a defence or not. It is a settled proposition of law that law of limitation is a law of repose, peace and justice which bars the remedy after the lapse of particular period by way of public policy and expediency. Reliance is placed on AIR 1991 Kerala 83 Craft Centre vs. Koncherry Coir Factories. It may be seen that the present suit is for recovery of amount outstanding against the defendant in Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 17 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:51 +0530 respect of personal loan sanctioned by the plaintiff bank to the defendant pursuant to Original Credit Facility Application Form dated 22.11.2018 Ex.PW1/3 and the loan amount disbursed thereto by the plaintiff bank vide Loan Disbursal Memo Ex.PW1/4. The defendant as per Statement of Account dated 25.06.2021 Ex.PW1/7 paid an amount of Rs.3,44,071/- by way of 15 monthly installments of Rs.22,340/- by way of cheques uptil 05.03.2020 and thereafter started defaulting. The Last payment was made by the defendant on 05.03.2020 by way of a cheque and the next installment became due on 05.04.2020 giving a cause of action to the plaintiff bank to approach the court. The present Suit having been filed on 28.07.2021 is well within the 3 years period of limitation, as per law.
22. Adverting to the claim of the plaintiff-Bank which it is required to prove by way of cogent oral as well as documentary evidence. It may be seen that the present suit has been filed on behalf of the plaintiff based on outstanding amount shown in the Prepayment/Foreclosure Letter Ex.PW1/6 and Statement of Account Ex.PW1/7 showing an outstanding balance of Rs.9,97,895.70ps. This Statement of Account is duly supported by a Certificate U/s.65-B of the Indian Evidence Act, 1872 and the Certificate under section 2A of the Banker's Book of Evidence Act,1891, duly proved on record as Ex.PW1/8 and Ex.PW1/9 respectively. The Statement of Account Ex.PW1/7 clearly shows an outstanding of Rs.9,97,895/- against the defendant. As per the deposition of PW1, the defendant has failed to pay the said amount of Rs.9,97,895/- which is due and pending against the defendant despite Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 18 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:55 +0530 repeated requests, advice and notice and continued to default in payment of EMIs. The loan recall notice dated 30.01.2021 Ex.PW1/5 and postal receipt Mark-X have also been duly proved by way of testimony of PW1 and has not been dented during the course of cross-examination by the defendant.
23. Though ld counsel for defendant during cross-examination has asked questions to PW1 on the aspect of disbursal of the loan amount by the plaintiff bank but no specific question regarding the outstanding or even a suggestion to this effect has been made. The loan facility was granted by the plaintiff bank to the defendant on 29.11.2018 vide loan documents Ex.PW1/2 to Ex.PW1/4 in regular course of its banking business. Though the defendant has tried to refute availing the loan facility, however, as already discussed the defendant has admitted to have received a sum of Rs.4,64,773.18ps in his account in the Written Statement itself. If the loan amount was never applied for by the defendant nor the documents were executed by him then he was required to answer as to how he has accepted transfer of such a huge amount in his saving bank account, that too, of exact denomination of amount disbursed by the plaintiff bank vide Disbursal Memo Ex.PW1/4. It is highly unbelievable for even a reasonable prudent men not to raise an objection on such a credit in his bank account. Incidently and conviently, the defendant also starts paying the installments of Rs.22,340/- as mentioned in the Disbursal Memo Ex.PW1/4, that too, for a fairly long period of 15 months which shows that the defence taken by the defendant is sham.
CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 19 of 23 Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 17:59:59 +0530
24. In banking cases, documentary evidence is of paramount importance as there is continuity of maintenance of account maintained by the banks as per RBI Guidelines in the ordinary course of its business.
Public financial institutions are required to maintain regular and proper accounts against each and every customer account. If the testimony of PW1 is carefully and meticulously scrutinized along with the documents and statement of account tendered during evidence and in the light of the fact that the defendant has preferred not to lead any evidence in defence or bring even a signle document on record much less to file his Statement of Account in respect of his earlier loan or the saving bank account in which the amount of Rs.4,64,773.18ps was received for the purpose of controverting the averrements of the plaintiff. Thus, after weighing the oral as well as the documentary evidence, taken on the yardstick of preponderance of probabilities, the plaintiff bank has been able to prove its entitlement to the suit amount.
25. However, the court has to see as to whether the plaintiff bank justifiably raised the outstanding against the defendant. It may be seen that upon appreciation of documentary evidence, plaintiff placed reliance on Statement of Account Ex.PW1/7 and prepayment/foreclosure of account dated 25.06.2021 Ex.PW1/6(colly). As per the said Foreclosure and Statement of Account, duly proved on record, the total outstanding balance of Rs.9,97,895.70ps including the principal balance of Rs.8, 46,316/-, the late penality charges of Rs.22,279/-, Cheque bouncing charges of Rs.4,720/-, Rs.4718/- as interest for the month January, 2021, Digitally signed by MUKESH CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 20 of 23 MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 18:00:03 +0530 Rs.69,929/- as interest on pending installments and Rs.49,932.70ps towards prepayment charges @ 5.9% is due and outstanding against the defendant as on 25.06.2021. The Statement of Account has been duly accompanied by Certificate U/s. 65-B of the Indian Evidence Act, 1860 Ex.PW1/8 and Certificate under section 2A of Banker's Book of Evidence Act,1891 Ex.PW1/9.
26. During the examination of PW1, a court question was put to the witness, as to whether any payment was made by the defendant during the pendency of the suit. To which, the witness has answred that no amount has been paid by the defendant towards his loan amount during the pendency of the present suit. However, since the loan was foreclosed on 25.06.2021, the plaintiff bank shall not be entitled to Rs.69,929/- towards interest on pending installments, Rs.4,718/- towards interest for the month June, 2021 and Rs.49932.70ps towards prepayment charges. As such, the plaintiff shall be entitled to a recovery of Rs.8,73,316/- against the defendant.
27. In view of the above, the plaintiff bank has been able to show its entitlement to the extent of preponderance of probabilities to a decree for a sum of Rs.8,73,316/-, against the Defendant.
28. This issue is, accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.3: "Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?
OPP"
Digitally signed by MUKESH CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 21 of 23 MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 18:00:06 +0530
29. The onus of proving this issue was also held upon the plaintiff who has claimed an interest @ 12.10% per annum on the outstanding amount pendentlite and future. However, Hon'ble Supreme court in a number of judgments reported as Pt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC) has repeatedly mandated that courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. Under the facts and circumstances of the case, keeping in view the nature of transactions of the case and the aforesaid settled law, court is of the considered opinion that interest of justice would be met, if an interest @ 6% per annum is granted to the plaintiff on the adjudicated and determined amount pendentlite and future from the date of filing of the suit till the date of its realisation. This issue is decided accordingly.
(I) CONCLUSION:-
ISSUE No.4: Relief.
30. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement for recovery Digitally CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 22 of 23 signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.10.28 18:00:10 +0530 of amount claimed, against the defendant. The suit of the plaintiff is, accordingly decreed against the defendant for a sum of Rs.8,73,316/-. The plaintiff shall also entitled to a simple interest @ 6% per annum on such amount pendente-lite and future from the date of institution of the suit till its realization.
31. In the specific facts and circumstances of the case, the plaintiff shall also be entitled to the costs of the suit throughout.
32. Decree sheet be drawn accordingly.
33. File be consigned to record room after due completion.
MUKESH Digitally
by MUKESH
signed
KUMAR KUMAR GUPTA
Date: 2024.10.28
GUPTA 18:00:17 +0530
(MUKESH KUMAR GUPTA)
DJ (COMMERCIAL COURT)-07
CENTRAL/DELHI(RK)
PRONOUNCED IN THE OPEN COURT
ON 25.10.2024.
CERTIFICATE
Certified that the judgment contains 23 pages and each page has been digitally signed by me. The judgment was pronounced on 25.10.2024 in open court and is being checked and uploaded on 28.10.2024.
Digitally signed by MUKESH MUKESH KUMAR
KUMAR GUPTA
Date: 2024.10.28
GUPTA 18:00:22 +0530
(MUKESH KUMAR GUPTA)
DJ (COMMERCIAL COURT)-07
CENTRAL/DELHI(RK)
CS (Comm.) No. 2548/2021 ICICI BANK LTD. . Vs. SOUVIK RAY Page no. 23 of 23