Delhi District Court
Kotak Mahindra Bank Limited vs Mr. Sintu Kumar Nirala on 28 April, 2023
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
CS (Comm.) No. 674/2021
Kotak Mahindra Bank Limited
Having its registered office at:
27BKC, C 27, G Block,
Bandra Kurla Complex,
Bandra (E), Mumbai-400051.
Through its authorized representative Sh. Amar Maini
.....Plaintiff
Versus
1.Mr. Sintu Kumar Nirala, s/o Mr. Ram Virksh Yadav, r/o House no. 23, Village Thallu Bigha, Post Lakhawar, Tehsil- Ghoshi, District- Jehanabad, Bihar-804434.
2. Mr. Kapil Singh, s/o Mr. Ram Virksh Yadav, r/o House no. 23, Village Thallu Bigha, Post Lakhawar, Tehsil- Ghoshi, District- Jehanabad, Bihar-804434.
....Defendants
Date of Institution : 23.12.2021
Arguments concluded on : 10.04.2023
Decided on :28.04.2023
Appearances : Mr. Manoj Kumar, Ld. Counsel for Plaintiff.
EX-PARTE JUDGMENT
1. De Lage Landen Financial Services India Pvt. Ltd. (herein after referred as original plaintiff) through Sh. Vimal Dubey, Authorized Representative initially filed this suit for recovery of Rs. 5,80,307/- with interest and cost against the defendants. Following the brief relevant material facts of case of plaintiff. In terms of plaint Sh. Vimal Dubey, Authorized Representative of the plaintiff company is well conversant with the facts of the case CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 1 of 8 and has been duly authorized to institute the suit on behalf of the plaintiff. Original plaintiff is a non banking financial company duly registered with the Reserve Bank of India. Original plaintiff sanctioned a loan to the defendants vide Loan cum Hypothecation Agreement dated 23.10.2017 for an amount of Rs. 4,00,000/- vide loan account no. 1000009763001. Defendants obtained the loan for purchasing a Tractor (being Escort PT-434 DS+) from authorized dealer of Escorts Limited bearing Engine/Machine No. E-3391597 and Chasis No. T053349309EF (in short equipment) and the said equipment was hypothecated in favour of the plaintiff. Defendants also executed a Demand Promissory Note and Continuity Letter dated 23.10.2017 in favour of the plaintiff. Original plaintiff thereafter sent a Repayment Schedule dated 30.10.2017 to the defendants. As per case of the original plaintiff, on conjoint reading of the agreement and repayment schedule, it is noticeable that the defendants are required to repay the loan through 46 monthly installments comprising of principal amount and interest @ 17.51% per annum between the period commencing from 01.12.2017 to 01.09.2021 and the defendants are liable to pay a default interest @ 30% per annum on default in payment of any outstanding loan installment to the original plaintiff. It is further submitted that the said equipment is the only security against the loan amount. Defendants failed to abide by the repayment schedule and have defaulted in payment of several installments despite repeated requests. Defendants have failed to pay the several installments. Thereafter original plaintiff issued and served upon the defendants a Facility Cancellation / Acceleration Notice dated 03.11.2020.
CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 2 of 82. Summons were issued to the defendants as per orders dated 24.12.2021 and 01.02.2022. Defendants were served on 23.02.2022. Defendants did not appear. Written statement was not filed by defendants. For non appearance, defendants were proceeded ex-parte on 28.04.2022.
3. Application under Order XXII Rule 10 r/w Order VI Rule 17 r/w Section 151 CPC was filed on behalf of Kotak Mahindra Bank Ltd. By virtue of assignment agreement dated 07.07.2022, the loan in question had been assigned by plaintiff De Lage Landen Financial Services India Pvt. Ltd. i.e. assigner in favour of Kotak Mahindra Bank Limited i.e., assignee and in view of such assignment, devolution of interest had occasioned in favour of Kotak Mahindra Bank Limited with respect to claim laid in this suit and accordingly vide order dated 18.10.2022 the application of assignee Kotak Mahindra Bank Ltd. was allowed and the assignee Kotak Mahindra Bank Ltd. was substituted as plaintiff Sh. Amar Maini, Deputy Manager of assignee was permitted to be its authorized representative. Amended memo of parties was taken on record.
4. In the plaintiff's evidence, Sh. Amar Maini, Authorized Representative of the plaintiff was examined as PW1 who filed his affidavit Ex. PW1/A. His evidence by way of affidavit was tendered before the Court and he relied upon following documents :-
CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 3 of 8 S.No Documents Exhibit
1 Copy of letter of authorization Mark A
dated 02.08.2021 in favour of
Sh. Vimal Dubey.
2 Copy of assignment Mark
agreement dated 07.07.2022. PW1/1
3 Copy of Board Resolution Ex.
dated 14.08.2022. PW1/2
4 Copy of Welcome Letter dated Mark
23.10.2017. PW1/3
5 Copy of Loan cum Mark B
hypothecation Agreement
dated 23.10.2017.
6 Copy of Demand promissory Mark
note and continuity letter PW1/4
dated 23.10.2017 in favour of
the plaintiff.
7 Copies of repayment schedule Mark
and postal receipts dated PW1/5
30.10.2017. and
Mark
PW1/6
8 Copy of notice dated Mark
03.11.2020 along with copies PW1/7
of postal receipts. and
Mark
PW1/8
(Colly)
9 Copy of Online tracking Mark C
reports. (colly)
10 Statement of account and Ex.
Certificate u/s 65-B of PW1/9
Evidence Act.
11 Copy of Non Starter report Ex.
dated 15.03.2021 issued by PW1/10
NDDLSA.
CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 4 of 8
5. I have heard the learned counsel for the plaintiff and carefully gone through the record.
6. Before, during and even after leading of ex-parte plaintiff evidence, plaintiff through Counsel had sought adjournments for production of original documents. On 27.05.2022, adjournment was sought by Ld. Counsel for plaintiff for taking steps for return of original documents earlier filed in previously withdrawn suit and no ex-parte evidence was led that day. Case was adjourned for ex-parte evidence of plaintiff for 21.07.2022 at the request of Ld. Counsel for plaintiff. On 21.07.2022 again adjournment was granted at the request of Ld. Counsel for plaintiff subject to costs. Later thereto on application of assignee Kotak Mahindra Bank Limited, the said assignee was substituted as plaintiff vide order dated 18.10.2022 and case was fixed for 06.12.2022 for ex-parte plaintiff evidence. Again on 06.12.2022, plaintiff Counsel sought adjournment as original documents were not brought for leading plaintiff evidence. Again case was adjournment subject to costs for ex-parte plaintiff evidence. On 16.01.2023, on application of plaintiff, file of earlier instituted case CS (Comm.) No. 645/2020 was requisitioned; which file from record room was received and it was observed on 07.03.2023 that in the aforesaid requisitioned file therein was the receipt of Sh. Vimal Dubey, the then AR of plaintiff dated 21.07.2022 and identification of Sh. Manoj Kumar Advocate on 21.07.2022 for return of original documents in lieu of their copies. In this fact of the matter on 07.03.2023, Sh. Amar Maini, AR of plaintiff was examined as PW1 and Ld. Counsel for plaintiff gave statement to close plaintiff evidence. Even then, as prayed by PW1, one week time was granted to plaintiff to file CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 5 of 8 original documents referred by PW1 in Ex. PW1/A and in deposition. Despite directions in order dated 07.03.2023, the plaintiff did not file original documents.
7. Originals of photocopies Mark B, Mark PW1/1, Mark PW1/3, Mark PW1/4, Mark PW1/5, Mark PW1/6 and Mark PW1/8 were never produced nor shown nor filed; so these documents stand not proved. Accordingly, plaintiff has failed to prove the copy of loan cum hypothecation agreement Mark B allegedly entered into between De Lage Landen Financial Services India Pvt. Ltd. and defendants; copies of demand promissory note and continuity letter Mark PW1/4 allegedly executed by defendants in favour of plaintiff. Plaintiff has also failed to prove the copies of the repayment schedule Mark PW1/5 and copies of postal receipts Mark PW1/6 for sending it to defendants. Plaintiff has also failed to prove the copy of notice Mark PW1/7 and copies of postal receipts Mark PW1/8 (Colly) for serving the said notice upon defendants.
8. Order XI Rule 6 (3) of the Code of Civil Procedure, 1908 (in short CPC) mandates the declaration on oath to be filed by a party specifying (a) the parties to such Electronic Record; (b) the manner in which such electronic record was produced and by whom; (c) the dates and time of preparation or storage or issuance or receipt of each such electronic record; (d) the source of such electronic record and date and time when the electronic record was printed; (e) in case of e-mail ids, details of ownership, custody and access to such e-mail ids; (f) in case of documents stored on a computer or computer resource CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 6 of 8 (including on external servers or cloud), details of ownership, custody and access to such data on the computer or computer resource; (g) deponent's knowledge of contents and correctness of contents; (h) whether the computer or computer resource used for preparing or receiving or storing such document or data was functioning properly or in case of malfunction that such malfunction did not affect the contents of the document stored;
(i) that the printout or copy furnished was taken from the original computer or computer resource.
9. Majority of above said information required to be specified in terms of Order XI Rule 6 (3) of CPC elicited above, is not even contained in the affidavit (certificate) of AR of plaintiff under Section 65B of the Indian Evidence Act, part of Ex. PW1/9, which only in vague terms is containing an endeavor to put forth of compliance of conditions of Order XI Rule 6 (3) of CPC .
10. For want of above said requisite specified information compliant of Order XI Rule 6 (3) (a) to (i) CPC, the electronic record statement of account of defendant no. 1 Ex. PW1/9 in books of accounts of plaintiff stands not proved.
11. In view of afore going discussions, plaintiff has failed to prove (1) sanction of loan to defendants; (2) defendants having executed above said loan documents including loan-cum- hypothecation agreement; demand promissory note; (3) original plaintiff having issued and served welcome letter, repayment schedule, legal notice to defendants; (4) statement of accounts of CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 7 of 8 defendants in book of original plaintiff and (5) any document proving transfer of sanctioned loan amount to account of defendants or to any dealer of alleged hypothecated Tractor under instructions of defendants. Inescapable conclusion in the fact of the matter from the fore going discussions is that plaintiff has miserably failed to prove for being entitled for recovery of claimed amount from defendants. Resultantly suit of the plaintiff is dismissed. Decree Sheet be prepared accordingly.
No order as to costs.
File be consigned to the record room.
Digitally signed by GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2023.04.28
15:19:29 +0530
ANNOUNCED IN (Gurvinder Pal Singh)
OPEN COURT District Judge (Commercial Court)-02
On 28th April, 2023. Patiala House Courts, New Delhi (vkp) CS (Comm.) No. 674/2021 Kotak Mahindra Bank Ltd. vs. Sintu Kumar Nirala & Anr. Page 8 of 8