Delhi District Court
M/S Icici Bank Limited vs Raj Kumar on 16 August, 2022
IN THE COURT OF SH. AJAY GULATI-II,
ADDITIONAL DISTRICT JUDGE-01, (CENTRAL)
TIS HAZARI COURTS, DELHI.
CS NO. 135/2017
CNR NO. DLCT 01-0001370-2017
M/S ICICI BANK LIMITED
REGISTERED OFFICE AT :-
LANDMARK, RACE COURSE CIRCLE,
VADODARA-390007.
HAVING ITS BRANCH OFFICE AT :-
E-BLOCK, 2nd FLOOR, VIDEOCON TOWERS,
JHANDEWALAN EXTENSION,
NEW DELHI -110 055. ...PLAINTIFF
VERSUS
RAJ KUMAR
S/O SH. KALI YADAV
(BORROWER)
EMPLOYED AT :
MINISTRY OF LABOUR AND EMPLOYMENT
E-MAIL ID- N653 (DATA ENTRY OPERATOR)
DIRECTORATE GENERAL OF EMPLOYMENT,
BEHIND RBI BANK, S. S. BHAWAN,
NEW DELHI-110001 ...DEFENDANT
Date of institution of the suit : 07.01.2017
Date on which order was reserved : 26.07.2022
Date of decision : 16.08.2022
SUIT FOR RECOVERY OF Rs.4,32,631.49/- (RUPEES FOUR
LACS THIRTY TWO THOUSAND SIX HINDERED THIRTY
ONE AND FORTY NINE PAISA ONLY)
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EX-PARTE JUDGMENT
1.The plaintiff has filed the present suit seeking recovery of Rs. 4,32,631.49/- alongwith pendente-lite and future interest at rate of 15.60% per annum on the basis of the Plaint pleading inter-alia as follows:-
a. That the plaintiff is a body corporate incorporated under the Companies Act, 1913 and is having its registered office at Land mark, Race Course Circle, Vadodra-390007 and having its branch at E-Block, Videocon Tower, Jhandewalan Extension, New Delhi-110055 and the present suit has been filed through its Authorized Representative Mr. Pankaj Mishra. b. That the defendant is the borrower and had availed personal loan from the plaintiff under the Personal Loan Scheme of the plaintiff bank. c. The plaintiff, in view of the request of the defendant, sanctioned the loan of Rs. 4,00,000/- vide Loan Account No. LPDEL00033639277 and disbursed an amount of Rs. 3,86,208/- into the account of the defendant bearing Account No. 107001000056091 with Indian Overseas Bank on 19.10.2015 after deducting an amount of Rs. 7,752 towards processing fees.
It is pleaded that the defendant agreed to repay said loan alongwith interest @ 15.60% in 48 Equated Monthly Installments of Rs. 11,275/- each. d. That the defendant executed the Credit Facility Application Form alongwith other documents. It is further pleaded that the defendant had paid only Rs 56,375/- (5 EMIs) and thereafter the defendant defaulted in making the installment. Subsequently, plaintiff was compelled to issue the Loan Recall Notice dated 26.09.2016 upon the defendant to which defendant paid no heed and no payment was made.
e. It is pleaded that as per the accounts maintained by the plaintiff qua the defendant, the defendant is liable to pay an amount of Rs. 4,32,631.49/-
CS No. 135/2017 ICICI Vs Raj Kumar Page No 2/7 (Rupees Four Lacs Thirty Two Thousand Six Hundred Thirty One And Forty Nine Paisa Only) as on 10.11.2016.
SERVICE OF DEFENDANT AND EX-PARTE PROCEEDINGS
2. The summons of the suit were sent to the defendant but the defendant could be served on his last known/available address by the way of ordinary process as well as by way of registered post. Thereafter the plaintiff moved an application under Order 5 Rule 20 seeking substituted service of the defendant and thus the defendant was served by way of publication as recorded in the Order dated 06.10.2021. However the defendant failed to appear and thus vide order dated 06.10.2021, the defendant was proceeded Ex-Parte.
ISSUES
3. The Ld. Predecessor, while proceeding the defendant as ex-parte, has framed the following issue:-
1) Whether the plaintiff is entitled for recovery alongwith interest as prayed for? OPP
2) Relief.
PLAINTIFFs EVIDENCE
4. The plaintiff led his ex-parte evidence.
5. In order to prove its case, the plaintiff got examined its authorized representative namely Sh. Pankaj Jain as PW-1, who tendered in evidence his duly sworn in affidavit Ex. P1 reiterating the contents of the plaint which are not reproduced here for the sake of brevity. In his testimony the PW-1 relied upon and proved the following documents :-
S No Exhibited as Nature of documents
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1 Ex PW1/1(OSR) Copy of power of attorney
2 Ex PW1/2 Credit Facility Application alongwith terms
and conditions of the loan.
3 Ex PW1/3 Notice dated 26.09.2016
4 Mark X Postal receipt of the legal notice
5 Ex PW1/4 Certified copy of Statement of account dated
10.11.2016
6 Ex PW1/5 Certificate u/s 65 B of Indian Evidence Act
7 Ex PW1/6 Certificate u/s 2A of the Bankers book of
Evidence Act
6. Thereafter, the ex-parte PE was closed vide order dated 11.04.2022 consequent upon the statement of authorized representative for the plaintiff.
ARGUMENTS AND CONCLUSION
7. Final arguments were duly advanced by Ld. Counsel for the plaintiff.
8. I have duly considered the arguments advanced by the Ld. Counsel for the plaintiff and have perused the pleading, documents and the evidence on record carefully.
9. Since only one issue qua the entitlement of the plaintiff was framed, therefore, my findings are as under:
10. The onus to prove its case was upon the plaintiff as it is a settled proposition of law that the case of the plaintiff has to stand on its own legs irrespective of the defence of the defendant.
11. In order to prove its case, the plaintiff has placed on record various documents to show that the defendant has availed personal loan from the plaintiff bank vide documents i.e. Credit facility application form which is duly exhibited and proved as Ex.PW1/2 and the said loan was duly disbursed by the CS No. 135/2017 ICICI Vs Raj Kumar Page No 4/7 plaintiff to the defendant.
12. The plaintiff has deposed before the Court that the defendant had defaulted in paying the EMIs and in order to substantiate this, the plaintiff has placed on record the statement of accounts maintained by the plaintiff bank qua the defendant which is duly exhibited as Ex.PW1/4 and duly supported with certificate under Section 65-B of the Indian Evidence Act which is exhibited as Ex.PW1/5 and Certificate under the Banker's Book of Evidence Act which is exhibited as Ex.PW1/6 showing the outstanding balance of Rs.4,32,631.49 as on 10.11.2016. Thus, by placing the said documents on record, plaintiff has duly proved and discharged his burden of proof placed upon him to prove the liability against the defendant.
13. The plaintiff has also placed on record the legal notice/loan recall notice dated 26.09.2016, exhibited as Ex.PW1/3 demanding the due amount along with postal receipt which was sent to the defendant.
14. Thus, on the basis of the pleadings as well as the evidence led by the plaintiff, and in view of the fact that despite service the defendant did not appear before the Court to defend the case and to cross-examine the plaintiff's witness therefore it can be safely held that the testimony of PW-1 has remained unrebutted, unblemished and uncontroverted. Therefore, this Court has no ground to disbelieve the testimony of the PW-1. Also, by placing on record various loan documents and statement of accounts qua the defendant maintained by the plaintiff bank, the plaintiff has been able to prove its case on the scale of preponderance of probabilities. It is also noteworthy to mention that the present suit was filed on 07.01.2017 on the basis of the loan agreement executed on 19.10.2015 i.e. within 3 years of the sanction of the loan.
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15. The plaintiff, in his suit, has prayed for payment of pendente-lite and future interest at the rate of 15.60% per annum on the basis of the loan agreement. However this Court is of the opinion that the interest claimed by the plaintiff bank is on the excessive side.
16. Section 34 of CPC provides for grant of interest pendentelite at any rate not exceeding 6% and future interest at any rate not exceeding contractual rate and if there is no contractual rate than not exceeding the rate at which nationalized banks advance loan.
17. Thus keeping in mind the said provision interest of justice would be served if plaintiff is granted simple interest @ 6% per annum for the pendentelite period i.e. from the date of institution of the suit till the passing of the decree. The plaintiff shall also be entitled to simple interest at the rate of 9% per annum towards future interest from the date of the passing of the decree till its actual realization.
18. Therefore this Court is of the considered opinion that, on the basis of pleadings as well as the testimony of PW-1 which has gone unchallenged, the plaintiff has been able to prove its case against the defendant. Therefore, the suit of the plaintiff stands decreed for a sum of Rs. 4,32,631.49/-(Rupees Four Lacs Thirty Two Thousand Six Hindered Thirty One And Forty Nine Paisa Only) with simple interest @ 6% per annum for the pendentelite period i.e. from 07.01.2017 to 16.08.2022. The plaintiff shall also be entitled to simple interest at the rate of 9% per annum towards future interest from the date of the passing of the decree till its actual realization.
19. Decree sheet be prepared accordingly.
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20. File be consigned to record room, after necessary legal formalities.
Announced in the open court (AJAY GULATI-II)
on 16th August, 2022. ADJ-01/ Central District
Tis Hazari Court/Delhi.
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