Icici Bank Ltd vs Rajesh Kashyap on 25 November, 2009

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Delhi District Court

Icici Bank Ltd vs Rajesh Kashyap on 25 November, 2009

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     IN THE COURT OF SH SUNIL KUMAR AGGARWAL: ADDITIONAL
           DISTRICT & SESSIONS JUDGE (CENTRAL) 16: DELHI

                                                    Suit No. 470/08


ICICI Bank Ltd.
Having its registered office at
Lanmark, Race Course Circle,
Vadodara - 390007.
Having its Branch Office At:
S.D. Tower, Commercial Complex,
Sector -8, Rohini, New Delhi -110085.                   ....Plaintiff.


VERSUS

Rajesh Kashyap
S/o Sh. Radheyshyam Kashyap
H.N. 1988, Jawahar Colony,
Air Force Road
Near Gurudwara, NIT
Faridabad - 121002
Also at:
H K Enterprises, 1909/B, Jawahar Colony,
Air Force Road
Near Gurudwara, NIT
Faridabad 121002 .                                    ...Defendant


                                     Plaint presented on 15.07.2008

J U D G M E N T.


1.          Plaintiff, a body corporate, carrying on banking

business under license of Reserve bank of India, has filed this

recovery suit under summary procedure through Sh. Syed




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Hussain Asghar, Collection Manager, stating that loan of Rs.

3,43,000/- was granted to defendant vide agreement No.

LADEI00009766391 dated 03.03.2007 for purchase of Maruti

Wagon R. It was repayable in 47 equated monthly installments

of Rs. 9,782/- each. Defendant had purchased vehicle bearing

registration No. HR 51X 9107 and hypothecated it in favour of

the plaintiff.    He had executed credit facility application

containing       terms   and   condition   of   loan,   deed   of

hypothecation and irrevocable power of attorney authorizing

the plaintiff to take possession of vehicle and sell the same to

appropriate the dues in the event of default by the defendant.

2.         After availing the loan defendant failed to adhere

to the commitment for repayment. Repeated requests to him

to regularize the account did not materialize. The defendant

also failed to produce the hypothecated vehicle for inspection

by the officials of plaintiff in compliance of the terms of

agreement.        He was requested to attend Lok Adalat on

10.01.2008 to resolve the dispute but he opted to abstain. The

defendant thus is intentionally avoiding to make contractual

payment to the plaintiff. The demand notice dt. 03.06.2008 has




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neither been replied to nor complied with by him. A sum of Rs.

4,18,242.52 is outstanding against the defendant including

principal, interest and other dues till the date of filing of suit as

per the books of account maintained by the plaintiff in the

usual and ordinary course of its day to day business.          Since

liquidated sum is being demanded from the defendant under

an agreement, it has been preferred U/o 37 CPC.

3.          An application U/o 40 Rule 1 and Sec. 94 and 151

CPC was filed by the plaintiff along with the suit on which

exparte order dated 16.07.2008 was passed. Sh. Manoj Kumar,

an employee of plaintiff was appointed as Receiver for taking

custody of hypothecated car with police aid. No report till

date has been filed by him inferring that he has not been able

to seize the vehicle till date.

4.          After accepting the suit Under order 37 CPC special

summons were sent to the defendant.           He was duly served

through his father by registered post sometimes in August, 2008.

Summons for appearance were again sent to him which were

refused by him on 06.02.2009 as well as on 08.10.2009 when

tendered in ordinary manner, therefore, a copy thereof was

affixed by the process server at the given addresses.



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5.          Despite service of summons for appearance the

defendant did not entered appearance within the prescribed

time or till date.

6.           None has come forward to address arguments on

behalf of the plaintiff. I have carefully perused the record. Suit

has been filed by the Plaintiff within the period of limitation

through their official who has duly been authorized in this

behalf by Power of Attorney of which copy has been

produced on the record.       The computer generated copy of

statement of account has been certified under the Banker's

Books Evidence Act, 1891 and therefore inspires confidence.

The Defendant having failed to enter appearance within 10

days of service of summons is deemed to have accepted the

version of Plaintiff. The statement of account reflects his poor

record of payment of installments. The charges have been

levied in the account as per the terms of agreement with the

Defendant. The suit thus is liable to be decreed U/o. 37 Rule 2

(3) CPC .



6.          In view of the above suit is decreed in the sum of Rs.

4,18,252/- with interest at the rate of 15.23 % per annum from



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the date of filing of suit till today and half costs in favour of the

Plaintiff and against the Defendant. The Plaintiff is entitled to

realize this amount by attachment and sale of hypothecated

vehicle Maruti Wagon R      bearing registration No. HR 51X 9107

and balance if any, from the other assets of Defendant.

7.         Decree sheet be accordingly prepared.          File      be

consigned to record room.




Announced in the open court
on 25th November, 2009.

                                      (Sunil K. Aggarwal)
                               Addl. District Judge (Central)-16
                                            Delhi.




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Suit No. 470/08

25.11.2009

2.45 p.m.

Present:     None for the plaintiff since morning.

             The summons for appearance sent to defendant
through registered post have returned with report that no such
person is putting up at      House No. 1909/B, Jawahar Colony
while the addressee did not meet the postman on his repeated
visits at 1988, Jawahar Colony. The ordinary process at both
addresses were refused by the defendant himself, therefore,
the same were affixed at a conspicuous place by the process
server from the office of Civil Judge (Senior Division) Faridabad.

The defendant has earlier also been served in similar fashion on

06.02.2009 and through registered post in August, 2008.         No

appearance has till date been filed.

             I have perused the record. Vide separate judgment
suit has been decreed U/o 37 Rule 2 (3) CPC. Decree sheet be
prepared. File be consigned to record room.




                                       (Sunil K. Aggarwal)
                               Addl. District Judge (Central )-16
                                            Delhi.




                                                             Cont...
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IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ADDL. SESSIONS
                  JUDGE (CENTRAL) : DELHI

                                        Crl. Appeal No. 04/2008

Mohsim Ali
S/o. Sh. Rehmat Ali
R/o. Dagah Sheikh Kalimulla,
Pigeon Market, Jama Masjid,
Delhi
                                            ... Appellant

           Versus

State
(Through Wild Life Inspector, Delhi)
                                            ... Respondent


                             Criminal Appeal filed on 19.12.2008

ORDER

1. This appeal U/s 374 Cr.PC have been filed by the appellant / convict through a counsel appointed by the Delhi Legal Services Authority against order on sentence dated 04.08.07 passed by Learned. ACMM Delhi U/s. 51 of Wild Life (Protection ) Act, 1972.

2 The facts in brief are that the appellant was convicted U/s 51 of Wild Life (Protection ) Act, 1972 by Learned Trial Court on 01.08.07 on his plea of guilt for unauthorizedly Cont...

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keeping endangered species of birds , by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. Along with the case No. 70/01, to which this appeal relates, he was simultaneously convicted in a number of other cases and sentences were imposed. While the substantive sentence having been directed to run concurrently with other sentences, no such corresponding order was passed for the sentence in default of payment of fine. The default sentence awarded to the petitioner thus is much sever and will cumulatively with other cases be of much more period than the period of substantive sentence. He thus urged for setting aside the sentence in default of payment of fine. 4 An application U/s 5 of Limitation Act has been filed Cont...

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for condoning the delay in filing the appeal on the ground that none of the family members of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

5 Ld. Addl. PP has opposed the application on the ground that it has grossly become barred by the period of limitation.

6 I have head Ld. Addl. PP for the state and Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and carefully perused the file.

7 So far as the contents are concerned the condonation application is vague as to when the convict had applied to the court of Learned ACMM for being provided legal aid counsel and when the counsel was actually provided Cont...

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to him. Nevertheless there appears some substance in the appeal of which benefit he should not be denied merely on the technical bar of limitation particularly when he is incarcerating all through, sympathetic view is taken and the delay in filing present appeal is hereby condoned. 8 The appellant is neither aggrieved with his conviction by Learned Trial Court nor with the imposition of substantive sentence. His grievance seems to be limited to the extent of default punishment awarded to him on non payment of fine. Section 30 Cr.P.C read with section 40 and 67 of IPC prescribe the standards of imposition of fine for the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the default sentence awarded to the appellant cannot be said to be exaggerated.

9 In view of the peculiar facts however that the appellant was convicted in 12 cases on 01.08.07 simultaneously. While the Learned Trial Court took care to keep Cont...

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his substantive sentence to the minimum by providing for their concurrent run in all the cases, no such provision could have been made for the default sentence. It resulted in appellant having been awarded more cumulative default sentence of simple imprisonment than total substantive sentence of rigorous imprisonment. Facts and circumstances warrant some sort of balance in the two. Hence the period of sentence in default on payment of fine of Rs. 25,000/- of the convict is reduced from 6 months to 1-1/2 months in case No. 70/01. Appeal is allowed accordingly .

10 An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

11 Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 12th February, 2009 Addl. Sessions Judge (Central) Delhi Cont...

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IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI Crl. Appeal No. 03/2008 Mohsim Ali S/o. Sh. Rehmat Ali R/o. Dagah Sheikh Kalimulla, Pigeon Market, Jama Masjid, Delhi ... Appellant Versus State (Through Wild Life Inspector, Delhi) ... Respondent Criminal Appeal filed on 19.12.2008 ORDER

2 The facts in brief are that the appellant was convicted U/s 51 of Wild Life (Protection ) Act, 1972 by Learned Trial Court on 01.08.07 on his plea of guilt for unauthorizedly Cont...

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3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. Along with the case No. 215/01, to which this appeal relates, he was simultaneously convicted in a number of other cases and sentences were imposed. While the substantive sentence having been directed to run concurrently with other sentences, no such corresponding order was passed for the sentence in default of payment of fine. The default sentence awarded to the petitioner thus is much sever and will cumulatively with other cases be of much more period than the period of substantive sentence. He thus urged for setting aside the sentence in default of payment of fine. 4 An application U/s 5 of Limitation Act has been filed Cont...

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5 Ld. Addl. PP has opposed the application on the ground that it has grossly become barred by the period of limitation.

6 I have head Ld. Addl. PP for the state and Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and carefully perused the file.

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9 In view of the peculiar facts however that the appellant was convicted in 12 cases on 01.08.07 simultaneously. While the Learned Trial Court took care to keep Cont...

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10 An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

11 Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 12th February, 2009 Addl. Sessions Judge (Central) Delhi Cont...

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Cont...

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IN THE COURT OF SH SUNIL KUMAR AGGARWAL:ASJ:DELHI Crl. Appeal No. 02/2008 Mohsim Ali S/o. Sh. Rehmat Ali R/o. Dagah Sheikh Kalimulla, Pigeon Market, Jama Masjid, Delhi ... Appellant Versus State (Through Wild Life Inspector, Delhi) ... Respondent Criminal Appeal filed on 19.12.2008 ORDER

2 The facts in brief are that the appellant was convicted U/s 51 of Wild Life (Protection ) Act, 1972 by Learned Trial Court on 01.08.07 on his plea of guilt for unauthorizedly Cont...

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keeping one tiger skin, by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months. 3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. Along with the case No. 43/01, to which this appeal relates, he was simultaneously convicted in a number of other cases and sentences were imposed. While the substantive sentence having been directed to run concurrently with other sentences, no such corresponding order was passed for the sentence in default of payment of fine. The default sentence awarded to the petitioner thus is much sever and will cumulatively with other cases be of much more period than the period of substantive sentence. He thus urged for setting aside the sentence in default of payment of fine. 4 An application U/s 5 of Limitation Act has been filed for condoning the delay in filing the appeal on the ground that Cont...

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none of the family member of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

5 Ld. Addl. PP has opposed the application on the ground that it has grossly become barred by the period of limitation.

6 I have head Ld. Addl. PP for the state and Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and carefully perused the file.

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appeal of which benefit he should not be denied merely on the technical bar of limitation particularly when he is incarcerating all through, sympathetic view is taken and the delay in filing present appeal is hereby condoned. 8 The appellant is neither aggrieved with his conviction by Learned Trial Court nor with the imposition of substantive sentence. His grievance seems to be limited to the extent of default punishment awarded to him on non payment of fine. Section 30 Cr.P.C read with section 40 and 67 of IPC prescribe the standards of imposition of fine for the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the default sentence awarded to the appellant cannot be said to be exaggerated.

9 In view of the peculiar facts however that the appellant was convicted in 12 cases on 01.08.07 simultaneously. While the Learned Trial Court took care to keep his substantive sentence to the minimum by providing for their Cont...

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concurrent run in all the cases, no such provision could have been made for the default sentence. It resulted in appellant having been awarded more cumulative default sentence of simple imprisonment than total substantive sentence of rigorous imprisonment. Facts and circumstances warrant some sort of balance in the two. Hence the period of sentence in default on payment of fine of Rs. 25,000/- of the convict is reduced from 6 months to 1-1/2 months in case No. 43/01. Appeal is allowed accordingly .

10 An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

11 Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 12th February, 2009 Addl. Sessions Judge (Central) Delhi Cont...

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2 The facts in brief are that the appellant was convicted U/s 51 of Wild Life (Protection ) Act, 1972 by Learned Trial Court on 01.08.07 on his plead of guilt for unauthorizedly Cont...

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keeping endangered species of birds by the impugned order he was sentenced to undergo rigorous imprisonment for 3 years and pay fine of Rs 25000/- in default of payment of fine he is to further undergo simple imprisonment for a period of six months.

3 It has been contended that the appellant is a poor man and has not been keeping well. He is in jail since 04.01.07 and has no means to pay the amount of fine. Along with the case No. 215/01, to which this appeal relates he was simultaneously convicted in a number of other cases and sentences were imposed. While the substantive sentence having been directed to run concurrently with other sentences, no such corresponding order was passed for the sentence in default of payment of fine. The default sentence awarded to the police thus is much sever and will cumulative with other cases be of much more period than the period of substantive sentence. He thus urged for setting aside the sentence in default of payment of fine.

4 An application U/s 5 of Limitation Act has been filed Cont...

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for condoning the delay in filing the appeal on the ground that none of the family member of appellant have been pursuing his case. He therefore, had filed an application for being provided legal aid counsel for filing appeal and the present appeal has been filed on the said request being allowed. Since the delay is neither intentional nor deliberate, it is liable to be condoned.

5 Ld. Addl. PP has opposed the application on the ground that it has grossly become barred by the period of limitation.

6 I have head Ld. Addl. PP for the state and Ms Sunita Vasudeva advocate appointed by Delhi Legal Services Authority on behalf of the appellant and carefully perused the file.

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to him. Nevertheless there appears some substance in the appeal of which benefit he should not be denied merely on the technical bar of limitation particularly when he is incarcerating all through, sympathetic view is taken and the delay in filing present appeal is hereby condoned. 8 The appellant is neither aggrieved with his conviction by Learned Trial Court nor with the imposition of substantive sentence. His grievance seems to be limited to the extent of default punishment awarded to him on non payment of fine. Section 30 Cr.P.C read with section 40 and 37 of IPC prescribe the standards of imposition of fine in the court awarding sentence to convict and lay down the parameters of default sentence in lieu thereof. Judged on the same, the default sentence awarded to the appellant cannot be said to be exaggerated.

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concurrent run in all the cases, no such provision could have been made for the default sentence. It resulted in appellant having been awarded more cumulative default sentence of simple imprisonment than total substantive sentence of rigorous imprisonment. Facts and circumstances warrant some sort of balance in the two. Hence the period of sentence in default on payment of fine of Rs. 25,000/- by the convict is reduced from 6 months to 1-1/2 months in case No. 215/01. Appeal is allowed accordingly .

10 An attested copy of this order be sent to Learned Trial court for being mentioned in the conviction warrant of the appellant .

11 Appeal file be consigned to record room. Announced in open court Sunil Kr. Aggarwal on 12th February, 2009 Addl. Sessions Judge (Central) Delhi Cont...

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Cont...

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Delhi District Court

Icici Bank Ltd vs Rajesh Kashyap on 25 November, 2009