Delhi District Court
And Having Its Branch Office At vs Jatin Talwar on 9 December, 2021
DLCT010075542020
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL COURT)-
01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (Commercial) No. 1663/20
M/s ICICI Bank Ltd.
Having its registered office at :
ICICI Bank Tower,
near Chakli Circle, Old Padra road,
Vadodara Gujarat-390007
And having its branch office at:-
DCM Plaza-2, Central Square
Bara Hindu Rao, M.L. Khurana Marg, .....Plaintiff
Delhi-110006
Through its authorized representative
Sh. Pankaj Jain.
VERSUS
Jatin Talwar
H. No. 2/186 Subhash Nagar ...Defendant
Tagore Garden
S.O West Delhi
Delhi-110027
CS (Comm.) No. 1663/2020 Page 1 of 11
Also at :
Jatin Talwar
IFFCO Tokyo General Insurance co
F1 Building Vasant Kunj Institutional
Area New Delhi
Delhi-110070
Email ID : [email protected].,
[email protected].
Date of Institution : 02.11.2020
Date of reserving judgment : 27.11.2021
Date of Judgment : 09.12.2021
JUDGMENT
1. The plaintiff bank has filed a suit for recovery of ₹ 9,09,577/- against the defendant on 02.11.2020.
Plaintiff's Case
2. Briefly stated the case of plaintiff is that plaintiff is a Banking Company within the meaning of Banking Regulation Act and is inter-alia engaged in the business of banking, financing and providing loan facilities to its customers under various schemes such as personal loan, auto loan etc. The suit has been instituted through its authorized representative Mr. Pankaj Jain.
3. The defendant approached the plaintiff for grant of a personal loan. The plaintiff acceded to the request of defendant and sanctioned him a loan. The relevant particulars of the credit facility sanctioned by the plaintiff to the defendant are as under:
CS (Comm.) No. 1663/2020 Page 2 of 11 Loan Account no. LPDEL00038452289
Date of execution of 11.01.2019
documents
Equated Monthly ₹ 18,505/-
Installment (EMI)
Rate of Interest 13.75%
Number of EMIs 60
4. The defendant executed Preliminary Credit Facility Application Form for a valuable consideration.
5. After making certain payments, the defendant defaulted in repayment and therefore, the loan was recalled vide recall notice dated 14.11.2019 calling upon the defendant to make the payment of amount outstanding. Despite being duly notified the defendant did not come forward to pay the outstanding amount constraining the plaintiff to institute the instant suit.
6. The plaintiff has prayed that the suit be decreed in the sum of ₹ 9,09,577/- with interest @24% per annum from 09.09.2020 till the realisation of amount. Costs of the suit have also been prayed for.
Service of the Defendant
7. The process had been sent to defendant and as per record of proceedings dated 24.09.2021 he had been served on 20.04.2021. However, despite service the defendant did not cause appearance and was accordingly ordered to be proceeded ex-parte vide order dated CS (Comm.) No. 1663/2020 Page 3 of 11 24.09. 2021.The defendant thereafter did not join the proceedings.
Plaintiff's Evidence
8. In its evidence, the plaintiff bank has examined only one witness i.e. Mr. Pankaj Jain, its Authorized Representative, as PW-1.
9. PW-1 tendered his oral evidence contained in affidavit Ex.PW1/A. He also tendered the following documents in evidence: -
Documents Exhibits
Copy of Power of Attorney dated Ex.PW1/1
18.10.2017 (OSR)
Preliminary Credit Application Form Ex.PW 1/2
and standard terms and condition
Credit Application Form Ex. PW1/3
Disbursement Memo Ex.PW1/4
Office copy of demand /loan recall Ex.PW1/5
notice dated 14.11.2019
Copy of postal receipt Mark A
Statement of account Ex.PW1/6
Certificate under Section 65-B of Ex.PW1/7
Indian Evidence Act, 1872
Certificate under Section 2A of the Ex. PW1/8
Banker's Book of Evidence Act, 1891
10. The plaintiff evidence was thereafter closed on 18.11.2021.
Arguments
11. I have heard the submissions advanced by Mr. Alok Kumar, Ld. counsel for the plaintiff.
CS (Comm.) No. 1663/2020 Page 4 of 1112. Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
13. The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business.
14. The testimony of the plaintiff's witness has remained unchallenged and un-impeached as the defendant has not come forward to defend the suit despite being duly served.
15. It has also been submitted that the present suit is not only within limitation but there is also no legal impediment which may prevent decreeing the suit in favour of the plaintiff.
16. The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
17. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Courts Act, 2015 and the CS (Comm.) No. 1663/2020 Page 5 of 11 transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(c) of the Act.
18. The summons which has been sent to the defendant in this case have been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non-appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit and has been proceeded ex-parte, the plaintiff is still liable to prove its case on pre-ponderance of probabilities.
19. PW- 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for the plaintiff has placed strong reliance on a judgment passed on 31.01.2018 by our own Hon'ble High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similar to the facts of the present case.
20. PW1 has tendered in evidence his Power of Attorney as Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act,1872.
CS (Comm.) No. 1663/2020 Page 6 of 1121.The authority to sue on behalf of the plaintiff has been stated in clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
22. One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.
23. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship.
24. A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non-appearance, and the Court cannot speculate into the reasons for his non-appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided CS (Comm.) No. 1663/2020 Page 7 of 11 for working solution in the form of doctrine of pre-ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
25. Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant had approached the plaintiff bank and executed documents Ex. PW1/2 & Ex. PW1/3 seeking a credit facility. The bank acceded to the request and consequent upon the same, the defendant executed various loan documents viz. Ex. PW1/2 and Ex. PW1/3. The defendant made various payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/6, maintained by the plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
26. The plaintiff has also served a loan recall notice Ex. PW1/5 upon the defendant calling upon him to clear the outstanding in his account. Due to non-compliance of its terms on the part of the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.
27. The loan has been disbursed on 11.01.2019. The suit has been CS (Comm.) No. 1663/2020 Page 8 of 11 instituted on 02.11.2020 and the same is therefore within the prescribed period of limitation.
28.The plaintiff bank has claimed the suit amount, the components of which have been stated in Ex. PW1/4 as under:
Particulars Amount ₹
Principal outstanding 7,51,906/-
Late payment penalty 38,850/-
Cheque bouncing charges and 3,776/-
other charges
Interest for the month 6,675/-
Interest on pending installments 1,08,370/-
Total 9,09,577
29. Thus, in my considered opinion the plaintiff bank has been successful in proving its case not only on preponderance of probability but also beyond shadows of all reasonable doubts entitling it to the outstanding principal and interest amount. The plaintiff bank is also entitled to the late payment penalty and cheque bouncing charges as the same have been occasioned due to the acts and omissions of the defendant. The same flow from the contractual relationship as per the terms and conditions settled and forming part of the loan documents.
30.The plaintiff has claimed interest @24% per annum w.e.f. 09.09.2020. It was however incumbent upon the plaintiff to capitalize the interest in the suit amount as on the date of filing and he ought to have paid the court fee accordingly. Thus, the plaintiff is CS (Comm.) No. 1663/2020 Page 9 of 11 entitled to interest only from the date of institution of the suit i.e. from 02.11.2020 onwards. The plaintiff is entitled to interest @ 13.75% per annum which is the contractual rate of interest and the same appears to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances. The interest accrued till the date of decree shall be part of the decreetal amount.
31. Thus, the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
32.The suit of the plaintiff is thus decreed in the sum of ₹ 9,09,577/- with simple interest @ 13.75% per annum from the date of institution of the suit i.e. 02.11.2020 till realization of the entire amount. The interest accrued till the date of decree shall be part of the decreetal amount.
33. The plaintiff shall be entitled to the costs of the suit as well, as per rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, be deposited by the plaintiff within 30 days of the decree.
34. Decree shall be drawn accordingly.
Copy of the Judgment
35. In compliance of the provisions of the Order XX Rule 1 of the Code CS (Comm.) No. 1663/2020 Page 10 of 11 of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
36. File be consigned to the Record Room.
Announced in the open court on 09.12.2021.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 1663/2020 Page 11 of 11