Delhi District Court
Oriental Bank Of Commerce vs M/S K.D. Industries on 26 March, 2011
IN THE COURT OF SH RAKESH KUMAR : ADJ-03 (C) : DELHI Suit No.296/04 Oriental Bank of Commerce, A Nationalized Bank, Constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970, having its Head Office at Harsha Bhawan, EBlock, Connaught Place, New Delhi1, And having, amongst others, a Branch Office at Sadar Bazar, Delhi - 110006. .....Plaintiff. Versus 1. M/s K.D. Industries, Regd. Office:2823/28, Pratap Market, Sadar Bazar, Delhi - 110006. Branch Office: B604, Ansal Chamber1, 3 Bhikaji Cama Place, New Delhi-110006. 2. Sh. K.D. Kapoor, S/o Late Sh. R.L. Kapoor, E112, First Floor, Greater Kailash1, New Delhi. Also at: 37/4, DLF CityI, Gurgaon (Haryana) Also at: The above addresses of Def. No.1. O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.1 of pages 23 3. Sh. Ashok Kapoor, S/o Sh. K.D. Kapoor, E112, First Floor, Greater Kailash1, New Delhi. 4. Shrimati Vinod Kapoor, W/o Sh. K.D. Kapoor, E112, First Floor, Greater Kailash1, New Delhi. Also at 37/4, DLF CityI, Gurgaon (Haryana). 5. Sh. P.P. Chaudhary, S/o Late Sh. M.L. Choudhary E112, First Floor, Greater Kailash1, New Delhi. .....Defendants. J U D G M E N T
1. The instant suit for recovery of Rs.7,24,750/ and sale of mortgaged property no.E112, First Floor, Greater KailashI, New Delhi has been filed by the aforesaid plaintiff and against the above named defendants U/o 34 of the Code of Civil Procedure interalia making the following prayers:
(i).to pass a preliminary decree for the payment of Rs.7,24,750/ alongwith pendentelite and future interest @ 16% p.a. from the date of filing of the suit till its realization in favour of the plaintiff Bank against the defendants jointly and severally and on non payment of O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.2 of pages 23 the decreetal amount in Court within the time fixed, a decree a final decree for sale of the mortgaged property in favour of the plaintiff and against the defendants jointly and severally.
(ii).In case the net proceeds of the said sale are found insufficient to pay the amount due, a decree for such balance amount may be passed with costs and pententelite and future interest @ 16% p.a from the date of filing of the suit till its realization in favour of the plaintiff and against the defendants jointly and severally.
(iii).Cost of the suit is also demanded.
2. As per plaint, plaintiff is a Nationalized Bank constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970. The defendant no.1 (a Sole Proprietorship firm) through its Proprietor i.e. defendant no.2 represented itself to be carrying on the business of trading in leather goods, jackets and novelties etc. under the name and style of M/s K.D. Industries and defendants no.3 & 4 are the guarantors for the due repayment of outstanding dues towards the credit facilities availed by the defendants no.1 & 2, and are jointly as well as severally liable alongwith other defendants to pay the outstanding dues of the plaintiff Bank and their liability is also coextensive till the dues of the Bank are paid in full. The defendant no.1 acting through its O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.3 of pages 23 Proprietor i.e. defendant no.2 approached the plaintiff Bank in October, 1995 and requested for the grant of certain credit facilities in the nature of Cash Credit (Hypothecation) Facility and after considering the proposal made by the defendants no.1 & 2, the plaintiff Bank accordingly sanctioned/allowed on 10.10.1995 in favour of the defendants no.1 & 2 a Cash Credit (Hypothecation) Facility vide CC A/c No.264 to the tune of Rs.50,000/ at the agreed rate of interest @ 14% p.a. (plus 2% p.a. penal interest) chargeable on quarterly rests against hopothecation of the stock of belts, overcoats, leather bags, ladies bags, ladies purses, etc. The said credit facilities were also collaterally secured by way of one Fixed Deposit Receipt having accrued value of Rs.25,000/ as on the date of sanction. The defendant no.1 acting through defendant no.2 in consideration of the grant of and due availment of the above mentioned credit facilities in the nature of Cash Credit (Hyp.), executed, signed and delivered to the plaintiff Bank, the following Loaning documents:
(i).Sole Proprietorship Letter dated 10.10.1995.
(ii).Agreement of Hypothecation of Goods dated 10.10.1995.
O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.4 of pages 23
(iii).ApplicationcumAuthority Letter for Financial Assistance against the Security of Bank Deposits dated 10.10.1995.
(iv).Terms and Conditions.
The defendant no.1 through its Sole Proprietor i.e. defendant no.2 again approached the plaintiff Bank in the month of April, 1996 and requested for the renewal/enhancement of the above mentioned Credit Facilities. Accordingly, keeping in view the proposal made by the defendant no.1 & 2 and their past performance, the plaintiff Bank on 23.04.1996 on the existing terms & Conditions, besides additional terms & Conditions, renewed/enhanced the Cash Credit (Hyp.) facility from Rs.50,000/ to Rs.1,50,000/ against hypothecation of stock of leather goods like belts, wallets, cufflinks, etc. In consideration of the grant of and due availment of the aforesaid renewed/enhanced Credit Facilities dated 23.04.1996, the defendant no.2 on behalf of the defendant no.1 executed, signed and delivered to the plaintiff Bank a Supplemental Agreement dated 23.04.1996 which is to be read in accordance with the previous Agreement/Loan Documents executed as stated above. Besides, the defendant no.1 was also allowed by the plaintiff Bank an Over Draft Facility upto the limit O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.5 of pages 23 of Rs.2,37,500/ vide Account No.O/DCA2598 against the unencumbered portion of the CDR of Rs.2,50,000/. The defendant no.1 on 11.06.1996 also deposited the Sale Deed of property/plot no.CC74 (New No.A2563), Sector A, measuring 308 Sq. Yds., Khasra No.47/24, Green Field Colony, Village Sarai Khawaja, Tehsil Ballabhgarh, Distt. Faridabad, with the intention to create equitable mortgage to collaterally secure the repayment of dues of the Bank and also signed on 12.06.1996 a confirmation letter. The detains of the said equitable mortgage are mentioned in para no.7 of the plaint. Thereafter also the defendant no.1 through defendant no.2 again approached the plaintiff Bank on various occasions i.e. in the month of November 1996, January 1998, November, 1998, May 1999 & November 1999 with the request for renewal/enhancement of the above mentioned credit facilities and keeping in view the proposal made by the defendant no.1 & 2 and their past performance the said Credit Facility was enhanced/ renewed from Rs.1,50,000/ to Rs.2,50,000/, Rs.2,50,000/ to Rs.4,00,000/, Rs.4,00,000/ to Rs.4,50,000/, Rs.4,50,000/ to Rs.6,50,000/, Rs.6,50,000/ (for further period of one year) respectively. The relevant documents were also executed by the O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.6 of pages 23 defendant no.1 in favour of plaintiff Bank as mentioned in paras 8, 9, 11, 12 & 13 of the plaint respectively. The defendant no.1 through defendant no.2 again approached the plaintiff Bank in the month of January, 1998 and requested for the grant of a fresh Term Loan for the purchase of a new computer with printer. Accordingly, keeping in view the proposal made by the defendants no.1 & 2, the plaintiff Bank on 24.01.1998 on the existing terms and conditions, besides additional terms & Conditions, granted to the defendant no.1 a Term Loan to the tune of Rs.50,000/ against hypothecation of HCL computer with deskjet printer and in consideration of the said facility, the defendant no.2 on behalf of defendant no.1 executed, signed and delivered to the plaintiff Bank an Agreement for Hypothecation of Movable Assets to Secrure A Term Lona dated 24.01.1998. Again in the month of September 2000, the defendant no.1 through defendant no.2 approached the plaintiff Bank for grant of a fresh Over Draft Facility besides the above mentioned credit facilities and the defendant no.1 was granted an over draft facility upto the limit of Rs.2,50,000/ upon execution of relevant documents as mentioned in para 14 of the plaint. The defendants no.3 & 4 stood as O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.7 of pages 23 guarantors for the due repayment of the aforesaid credit facilities granted/availed by the defendant no.1, to which they also executed relevant documents. Besides the defendant no.2 also deposited on 30.09.2000, the original Deed of Partition dated 13.07.2000 pertaining to his immovable property no.E112, 1st Floor, Greater KailashI, New Delhi and also executed Confirmation equitable mortgage in favour of the plaintiff Bank to collaterally secure the repayment of the aforesaid credit facilities. The details of the said equitable mortgage are mentioned in para 14 of the plaint. The defendant no.2, both in his personal capacity as well as on behalf of the defendant no.1, from time to time signed Balance & Security Confirmation Letters including those dated 23.04.1996, 26.11.96, 13.01.98, 20.11.98, 27.05.1999, 29.11.1999, 19.06.2000, 03.10.2000 etc. in acknowledgment of the outstanding amounts due/payable to the plaintiff Bank against the aforesaid credit facilities. The defendants failed to adhere to the agreed financial discipline and failed to honour the terms and conditions governing the sanction/renewal/enhancement/disbursement of the above mentioned credit facilities to the defendant no.1. Persistent and concerted efforts of the plaintiff Bank to make the defendants O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.8 of pages 23 regularize the irregularities of their said accounts proved futile and accordingly the plaintiff served upon the defendants a legal notice of demand dated 13.08.2002, under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (Second) Ordinance, 2002 read with Security Interest (Enforcement) Rules 2002, calling upon the defendants to repay the outstanding amount mentioned in the notice being Rs.11,39,031.61ps. but the same was neither replied nor complied by the defendants. However, defendant no.2 & 3 vide their letters dated 10.09.2002, 19.12.2002 & 18.12.2002 respectively requested for some time to clear the outstanding dues of the plaintiff Bank. As on 31.12.2002, a total amount of Rs.12,11,586.61ps. was outstanding against the Loan Account of defendant no.1 and the defendants having failed to repay the amount, the plaintiff Bank proceeded to take over the possession of aforesaid two mortgaged immovable properties vide two possession Notices both dated 06.01.2003 under the provisions of above mentioned Securitisation Ordinance, 2002 and Rules thereunder. Consequently, the defendants no.2 & 3 vide their letters dated 21.01.2003, 22.01.03 and 22.01.03 proposed to settled the dues of the plaintiff and O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.9 of pages 23 deposited certain amounts with the plaintiff in part settlement. In pursuance of the above proposals, the defendants deposited with the plaintiff Bank Rs.3,921/ on 27.02.03, Rs.60,000/ on 17.03.03, Rs.40,000/ on 26.03.2003, Rs.4,00,000/ on 29.03.03 and one cheque for Rs.50,000/ deposited on 28.04.03 was returned unpaid on 29.04.03. Accordingly, the plaintiff Bank in return released one of the mortgaged property i.e. Plot No.CC74 (New No.A2563), Sector A, measuring 308 Sq. Yds., Khasra No.47/24, Greenfield Colony, Village Sarai Khwaja, Tehsil Ballabgarh, Distt. Faridabad and returned the documents of title to the defendant no.2. While the other mortgaged property no.E112, Greater KailashI, First Floor, New Delhi continues to be mortgaged with the plaintiff Bank. Accordingly, the defendants no.2 to 4 jointly with defendant no.1 submitted an Undertaking (i.e. Tamsuk Deed) dated 26.03.2003 with the plaintiff Bank thereby undertaking to pay Rs.11 Lakhs with future interest towards full and final settlement of the outstanding liability of defendant no.1. The defendants also on 29.03.2003 accepted the written terms and conditions of the plaintiff Bank dated 25.02.03. But the defendants failed to comply with the terms and conditions of the said Undertaking as well as O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.10 of pages 23 the written terms and conditions of the plaintiff Bank dated 25.02.2003 and as such, the plaintiff Bank as per the agreed terms and conditions specially under the default clause, entitled to recover the entire dues outstanding as on dated alongwith upto date interest besides pendentelite and future interest. As per Account Books of the plaintiff Bank, a total sum of Rs.7,24,750/ is due and recoverable from the defendants, both jointly and/or severally, as on 07.11.2003, as per following details:
(i). Principal Balance loan amount {Cash Credit (Hyp.)} and Overdraft A/c : Rs.3,33,629/
(ii).Interest (inclusive of penal interest) @ 16% p.a. : Rs.3,91,121/ Rs.7,24,750/ The defendants are jointly and/or severally liable to pay the said amount of Rs.7,24,750/ alongwith costs, pendentelite and further interest @ 16% p.a. from the date of filing of suit till its realization. The cause of action against the defendants arose initially on 10.10.1995 when the aforesaid credit facilities were initially sanctioned/granted to the defendants. It further arose on each occasion when the aforesaid credit facilities were renewed/ enhanced/fresh facilities granted on 23.04.1996, 26.11.1996, 13.01.98, 20.11.98, 27.05.99, 29.11.99, 30.09.2000 and also when O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.11 of pages 23 the defendants started availing the said credit facilities and in consideration thereof executed various loan documents etc. from time to time. It further arose on each occasion when the defendants acknowledged their liability to repay the outstanding dues of the plaintiff Bank and in endorsement thereof singed and executed various Balance & Security Confirmation Letters as mentioned above. The cause of action also arose on each and every date when the aforesaid loan amount were operated/credit facilities were availed/loan payments disbursed/part payments deposited from time to time. It again arose on 13.08.2000 when the Legal Notice was sent by the plaintiff Bank demanding repayment. Further, the cause of action also arose when the defendants submitted Undertaking and accepted the terms and conditions of settlement and made part payments in pursuance thereof. The cause of action is a continuing one and is still continuing as the outstanding dues have not been paid so far. The suit has been properly valued for the purpose of Court fee and jurisdiction and appropriate court fee has been paid. This Court has territorial & pecuniary jurisdiction to try & entertain the suit.
3. It is pertinent to mention here that the defendants no.1 to 4 O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.12 of pages 23 filed their joint Written Statement in the suit and defendant no.5 was impleaded in the suit vide order dated 10.09.2004 and thereafter he also filed his Written Statement in the suit, to which the plaintiff also filed its replication. Subsequently, the defendants no.1 to 4 were proceeded against exparte vide order dated 08.08.2005.
4. In their Written Statement, the defendants no.1 to 4 have claimed that the defendants no.3 & 4 were the guarantors but they are not liable to pay the amount claimed, as the same is not due as it consists mainly of penal interest compounded monthly which is against the mandate of the Supreme Court. The facility of Rs.50,000/ was sanctioned for the business of defendant no.1 but the penal rate of interest @ 2% per annum levied and charged compounded monthly and capitalized is not only illegal but can not be recovered because of the judgment of the Supreme Court. It is also submitted that considering the past performance of the defendant and the regular operation of the account, the facility was enhanced to Rs.1.5 Lakhs from Rs.50,000/ against hypothecation of stock. The particulars regarding the mortgage of Greenfield property, Teshil Ballabgarh, District Faridabad are O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.13 of pages 23 incorrect though it is not denied that the titles of the plot in Greenfiled Colony, Teshil Ballabgarh were handed over to the plaintiff. It is also not denied that the documents of title in respect of the property in Greenfield Colony, Tehsil Ballabgarh, District Faridabad continued to remain with the plaintiff Bank. The factum of enhancement of the facilities from 2.5 Lakhs to 4 Lakhs and then enhanced to Rs.4.5 Lakhs on the same terms and conditions are not denied. It is also not denied that considering the performance and operation of the account of the defendants, the facilities were enhanced to Rs.6.5 Lakhs on the same terms and conditions against the Security of the Greenfield property in Ballabhgarh, District Faridabad. It is further submitted that the defendant no.2 approached the plaintiff for a overdraft facility of Rs.2.5 Lakhs to meet urgent orders and considering the performance and operation of the account of the defendants, the Bank sanctioned the same against the existing security of the Greenfield property in Ballabgarh as the value of the same more than sufficient to cover the total facilities and further as the overdraft was of a temporary nature. However, on the insistence of the Bank, the defendant no.2 deposited the title deed of his O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.14 of pages 23 property E112, 1st Floor, Greater KailashI, New Delhi in respect of the overdraft facility only. The particulars of the mortgage given in sub paras (e), (f) & (g) are incorrect and therefore denied. It is also stated that it would be observed from the plaint that the Bank was more than satisfied with the account and operation of the defendants who were extremely regular in operation and repayment and the Bank had absolutely no complaint till the year 2001. In 2001, defendant no.2 developed a heart problem and was admitted to a hospital and was unable to look after his business incurring huge expenditure yet assuring the Bank that he would try to repay the bank's liabilities and deposited Rs.1 Lakh in the overdraft account of Rs.2.5 Lakhs and with the permission and knowledge of the Bank, the defendant no.2 sold his property 1st Floor in E112, Greater KailashI, New Delhi to one Sh. P.P. Choudhary on 05.12.2001. Knowing fully well the position and the health of defendant no.2, the Bank issued a legal notice dated 13.08.2002 under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance 2002 calling upon the defendants to pay the amounts which were not due and consisted mainly the penal interest compounded and O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.15 of pages 23 capitalized on monthly basis and in reply the defendants only requested for time to settle the account on recalculation of the interest as permitted under the law. As the defendants had every intention to pay the Bank of the amount actually due and considering the state of business of defendant no.2 because of his illness the defendants offered to sell the mortgaged property at Greenfield and deposited the entire sale proceeds with the Bank which was done and the entire sale proceeds of Rs.6 Lakhs were deposited with the Bank. The Bank has through out known about the sale of the Greater Kailash property done with their consent and therefore, there was no more any question resorting to the Securitization Act.
5. The plaintiff filed the replication to the Written Statement of the defendants, wherein it denied the claim/allegations raised in the Written Statement and the averments those were raised in the plaint of the suit were reaffirmed and reasserted.
6. Since the suit qua defendant no.5 has already been settled and the compliance of the order dated 24.09.2010 has already been made, so there is no need to discuss the contents of the Written Statement of defendant no.5 and replication to the said Written O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.16 of pages 23 Statement.
7. From the pleadings, following issues were settled vide order dated 12.01.2006:
(i).Whether there is no cause of action in favour of plaintiff and against defendant no.5? OPD5.
(ii).Whether plaintiff is entitled to the relief claimed? OPP.
(iii).Relief.
8. In support of its case plaintiff has examined two witnesses namely Sh. S.N. Marwah and Sh. Madan Chandra as PW1 & PW2 respectively, whereas in support of his defence, defendant no.5 himself appeared in the witness box as D5W1.
9. PW1 Sh. S. N. Marwah in his examinationinchief tendered by way of affidavit Ex.PAA has reiterated the contents of plaint and also proved on record the documents, relied upon by the plaintiff Bank, which are as under:
(i). Agreement of Cash Credit/Overdraft dated 03.10.2000. : Ex.PW1/1.
(ii). Declaration/Confirmation Letter dtd.
03.10.2000. : Ex.PW1/2.
(iii). Sole Proprietorship Letter dated 03.10.2000. : Ex.PW1/3.
(iv). Acknowledgment and Request letters
both dated 03.10.2000. : Ex.PW1/4
O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.17 of pages 23
& Ex.PW1/5.
(v). Declaration Letter dated 03.10.2000. : Ex.PW1/6.
(vi). Affidavit dated 03.10.2000. : Ex.PW1/7.
(vii). Four Transfer/Payment Vouchers for Rs.47,000/, Rs.2 Lac, Rs.47,000/ and Rs.2,00,000/ all dtd. 03.10.2000. : Ex.PW1/8 to Ex.PW1/11.
(viii).Continuity Letter dated 03.10.2000 regarding continuation of equitable mortgage of aforesaid Ballabgarh property etc. : Ex.PW1/12.
(ix). Agreements of Guarantee dated 03.10.2000. : Ex.PW1/13 & Ex.PW1/14.
(x). Original Deed of Partition dated 13.07.2000 pertaining to his immo vable property No.E112, 1st Floor, Greater KailashI, New Delhi. : Ex.PW1/15.
(xi). Confirmation Letter dtd. 03.10.2000. : Ex.PW1/16.
(xii). Balance & Security Confirmation Letters including those dtd. 19.06.00 and 03.10.2000 etc. in acknowledg ment of the outstanding amounts due/ payable to the plaintiff Bank against aforesaid credit facilities.: : Ex.PW1/17 & Ex.PW1/18.
(xiii).Undertaking dated 26.03.2003. : Ex.PW1/19.
(xiv).Sanction Letter dated 10.10.1995. : Ex.PW1/20.
(xv). Sole Proprietorship Letter dated 10.10.1995. : Ex.PW1/21.
O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.18 of pages 23
(xvi).Agreement of Hypothecation of Goods
dated 10.10.1995. : Ex.PW1/22.
(xvii).ApplicationcumAuthority Letter for Financial Assistance against the Secu rity of Bank Deposits dtd.10.10.95. : Ex.PW1/23. (xviii).Terms and Conditions. : Ex.PW1/24. (xix).Office Note dated 23.04.1996. : Ex.PW1/25. (xx). Office Note dated 11.06.1996. : Ex.PW1/26. (xxi).Letter of deposit of Title Deeds dated 12.06.1996. : Ex.PW1/27.
(xxii).Sanction Letter dated 26.11.1996. : Ex.PW1/28. (xxiii).Letter dated 26.11.1996 written by defendant no.1 is Ex.PW1/29. : Ex.PW1/29.
(xxiv).Supplemental Agreement dated 26.11.1996. : Ex.PW1/30.
(xxv).Confirmation Letter regarding mortgaged property dtd. 26.11.1996. : Ex.PW1/31. PW2 Sh. Madan Chandra, in his examinationinchief tendered by way of affidavit Ex.PW2/A has also reiterated the contents of plaint and also proved on record the documents, relied upon by the plaintiff Bank, which are as under:
(i). Sanction letter dtd. 05.01.1998 regarding fresh term loan. : Ex.PW2/1.
(ii). Sanction letter regarding Cash Credit (Hyp.) dtd. 05.01.1998. : Ex.PW2/2.
(iii). The Supplemental Agreement dtd.
13.01.1998. : Ex.PW2/3.
(iv). Letter dated 13.01.1998 written by O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.19 of pages 23 defendant no.1. : Ex.PW2/4.
(iv) (a).Letter dated 13.01.1998 written by defendant no.1. : Ex.PW2/5.
(v). Letter of defendant no.1 dtd. 23.01.98.: Ex.PW2/6.
(vi). Transfer Vouchers dtd. 24.01.1998 for Rs.58,000/, Rs.102/, Rs.58,102/ resp.: Ex.PW2/7 to Ex.PW2/9.
(vii). Agreement for hypothecation of mov able assets to secure Term Loan dtd.
24.01.1998. : Ex.PW2/10.
(viii).Letter dated 05.02.1998 written by defendant no.1. : Ex.PW2/11.
(ix). Declaration letter dated 20.11.1998 submitted by defendant no.1. : Ex.PW2/12.
(x). Letter dated 20.11.1998 submitted by defendant no.1. : Ex.PW2/13.
(xi). The Sole Proprietorship letter dtd.
20.11.1998. : Ex.PW2/14.
(xii). The Supplementary Agreement dtd.
20.11.1998. : Ex.PW2/15.
(xiii).Letter written by defendant no.2. : Ex.PW2/16.
(xiv).Terms and conditions for advances. : Ex.PW2/17.
(xv). Continuity Letter dated 20.11.1998 regarding mortgage. : Ex.PW2/18.
(xvi).Sole Proprietorship Letter dated 27.05.1999. : Ex.PW2/19.
(xvii).Supplemental Agreement dated 27.05.1999. : Ex.PW2/20.
(xviii).Confirmation letter dtd. 28.05.1999 regarding mortgage. : Ex.PW2/21.
O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.20 of pages 23 (xix).The Sole Prop. Letter dtd. 29.11.1999: Ex.PW2/22. (xx). The letters of defendant no.1 dated 29.11.1999. : Ex.PW2/23 & Ex.PW2/24.
(xxi).The Sanction Letter with terms & Conditions dated 06.12.1999. : Ex.PW2/25 & Ex.PW2/26.
(xxii).The Balance Confirmation letters dtd. 23.04.1996, 26.11.96, 13.01.98, 20.11.1998, 27.05.1999 & 29.11.1999 signed by the defendants. : Ex.PW2/27 to Ex.PW2/32.
(xxiii).Statement of Accounts duly certified as per Banker's Book Evidence Act. : Ex.PW2/33 to Ex.PW2/37.
Since defendants no.1 to 4 are exparte in this case and the matter qua defendant no.5 has already been settled, so there is no need to discuss the cross examination of PW1 & PW2 conducted by defendant no.5. Even the affidavit tendered by the defendant no.5 in his evidence is also not required to be discussed.
10. Since the evidence led by the plaintiff remained uncontroverted and unrebutted on record qua the defendants no.1 to 4 as they neither appeared to cross examine the said witnesses nor led any evidence in their defence, so the plaintiff is entitled for a decree in its favour and against the defendants no.1 to 4. In this O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.21 of pages 23 case the plaintiff has sought a decree for the recovery of Rs.7,24,750/ out of which the defendant no.5 has paid Rs.5,14,623/ vide DD No.056347 dated 12.10.2010 drawnon CBI, N.B.O, New Delhi and as such the plaintiff is entitled to recover only the balance amount of Rs.2,10,127/ (Rs. Two Lakh Ten Thousand One Hundred Twenty Seven Only) from the defendants no.1 to 4 alongwith the interest. Therefore, a decree for the sum of Rs.2,10,127/ (Rs. Two Lakh Ten Thousand One Hundred Twenty Seven Only) alongwith interest @ 6% per annum from the date of filing of suit till the realization of the decreetal amount is hereby passed in favour of the plaintiff and against the defendants no.1 to 4. Cost of the suit is also awarded to the plaintiff. Decree stands passed accordingly.
11. Decree Sheet be prepared.
12. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open court (RAKESH KUMAR)
today on 26.03.2011) ADDL. DISTRICT JUDGE03 (C)
DELHI
O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.22 of pages 23
Suit No.296/04
O.B.C Vs. M/s K.D. Industries & Ors.
26.03.2011
Present: As before.
Vide a separate judgment, suit of the plaintiff is decreed. Decree Sheet be prepared.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03 (C)/DELHI/26.03.2011 O.B.C Vs. M/s K.D. Industries & Ors. (Suit No.296/04) Page No.23 of pages 23