Delhi District Court
State Bank Of India vs Sh. Santosh Kumar Verma on 24 July, 2014
IN THE COURT OF Ms. JYOTI KLER, ADDITIONAL SENIOR CIVIL JUDGE
CUMJUDGE SMALL CAUSE COURTCUM GUARDIAN JUDGE, SOUTH
EAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Suit No: 107/13
Case ID No. 02406C0441792010
IN THE MATTER OF :
State Bank of India
having its central office at Madam Cama Road,
Nariman Point, Mumbai
and one of the Local Head office at 11, Parliament Street,
New Delhi - 110023
and one of its Branches at University of Delhi, South Campus,
New Delhi - 110021, which is under the Administrative control of the
Local Head Office at New Delhi. .....Plaintiff.
VERSUS
1. Sh. Santosh Kumar Verma
R/o B 372, Swaran Jayanti Puram,
Ghaziabad, U.P.
Second Address
Sh. Santosh Kumar Verma,
Customs Excise & Service Tax,
Appellate Tribunal,
1st Floor, WTC Building,
FKCCI Complex, K.G. Road,
Banglore - 560009
Fax 08022385863
08022385861[0]
2. Sh. Satish Kumar
R/o H2/102, Bengali Colony,
Mahavir Enclave,
CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 1/10
New Delhi - 110045
[M] 9350076170
Second Address
Sh. Satish Kumar,
CESTAT, West Block II,
R.K. Puram,
New Delhi66 .....Defendants
Date of Institution: 01.04.2010
Date of Final Arguments: 09.07.2014
Date of Judgment: 24.07.2014
Decision: Decreed.
SUIT FOR RECOVERY OF A SUM OF RS.1,44,759/ (RUPEES ONE LAKH
FOURTY FOUR THOUSAND SEVEN HUNDRED AND FIFTY NINE ONLY)
JUDGMENT
1. Vide this judgment, I shall dispose off a Suit for Recovery of Rs. 1,44,759/ instituted by the State Bank of India (hereinafter referred as "the plaintiff") against Sh. Santosh Kumar Verma (hereinafter referred as "defendant no. 1") and Sh. Satish Kumar (hereinafter referred as "defendant no. 2").
Case of the Plaintiff:
2. Plaintiff is a body corporate constituted under the State Bank of India Act, 1955, having its central office at Madam Cama Road, Nariman Point, Mumbai and one of its local head office at 11, Parliament Street, New Delhi. It has various branches through out India, including one at University of Delhi, South Campus. The present suit has been instituted by Sh. Ravinder Kumar, the Branch Manager and Principal Officer of State Bank of India, University of CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 2/10 Delhi, South Campus, Delhi. Defendant No.1 is the borrower of personal loan of Rs.2,00,000/ and defendant No.2 is the guarantor.
3. Defendant No.1 approached the plaintiff bank for grant of loan facility under personal loan scheme. Plaintiff sanctioned personal loan in the sum of Rs.2,00,000/ in favour of defendant No.1 on 18.11.2005 at the guarantee of defendant No.2. Both the defendants executed various documents in this regard. Defendant No.1 was to repay the loan in 48 equal monthly instalments of Rs.5,341/ starting from January 2006. Loan account No. 30022855970 was assigned to him. Defendant No.1 made certain payments but later on did not adhere to the financial discipline. Plaintiff was maintaining the account of defendant No.1 in its Accounts Books by entering all the payments received from the defendant No.1. Defendant No.1 also executed a revival letter dated 18.10.2008 and a sum of Rs.5,341/ was deposited by him in his loan account on 17.04.2008. On 28.02.2009, on checking of accounts, defendants were found liable to pay a sum of Rs.1,23,816/ including interest upto the said date. On 14.01.2010 a legal notice was sent to them but defendants did not pay the due amount. Plaintiff instituted the present suit on 01.04.2010 for recovering the amount outstanding on 28.02.2009 i.e. Rs.1,23,816/ along with interest from 01.03.2009 till 18.03.2010 which is Rs.20,943/ i.e. for total sum of Rs.1,44,759/. Case of Defendants:
4. Summons of the suit were issued to both the defendants and written statement was filed by them. Both the defendants admitted the contents of the plaint except the revival letter dated 18.11.2008 and the fact that CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 3/10 rate of interest which the defendant were liable to pay was @12.75% per annum and not @16% per annum. It was also averred by the defendants in their written statement that after declaring an account sick, bank was not authorized to charge any interest on the outstanding balance. It is further averred by the defendants that the revival letter dated 18.10.2008 is forged and fabricated and suit of the plaintiff was barred by limitation.
Replication
5. Replication was filed by the plaintiff, wherein all the contents of the written statement were denied and contents of the plaint were reiterated.
6. After completion of pleadings following issues were framed by the Ld. Predecessor Court vide order dated 02.12.2013:
i) Whether the plaintiff is entitled to the decree of Rs.1,44,759/ along with interest @16% per annum as prayed for? OPP
ii) Whether the suit of the plaintiff is barred by the law of limitation? OPD1
iii) Relief.
7. Parties were directed to lead their evidence. Plaintiff examined Sh. Ravinder Kumar, its AR as PW1 by way of affidavit Ex.PW1/A. Defendant No.1 examined himself as DW1 and defendant No.2 examined himself as DW2 by way of affidavits Ex.DW1/A and Ex.DW2/A respectively.
8. PW1 relied upon the following documents in support of the contents of his affidavit:
i) Ex.PW1/1: Personal loan agreement.
ii) Ex.PW1/2: Deed of guarantee.
iii) Ex.PW1/3: Arrangement letter / application
CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 4/10
form for personal loan.
iv) Ex.PW1/4 (colly): Statement of account.
v) Ex.PW1/5: Certificate verifying that the
statement of account was not tempered.
vi) Ex.PW1/6: Legal notice sent to the
defendants.
vii) Ex.PW1/7: Registered envelop sent to the
defendant No.1.
viii) Ex.PW1/8 (colly): Eight dishonoured cheques along with return memos.
ix) Ex.PW1/9: Revival letter dated 18.10.2008.
x) Mark PW1/10: Copy of letter dated 23.09.2008.
9. No documents were relied upon by defendant No. 1 & 2.
10. After completion of evidence, final arguments were heard.
11. Ld. Counsel for the plaintiff argued that all the facts necessary for decreeing the suit in favour of the plaintiff have been proved on record by PW1 and therefore, the suit should be decreed.
12. Ld. Counsel for the defendants argued that the suit is barred by limitation and therefore it cannot be decreed and should be dismissed.
13. I have considered the rival arguments. Record has been perused.
14. My issue wise findings are as under:
Issue No. 2: Whether Suit of the plaintiff is barred by the law of Limitation? OPD1
15. Burden to prove this issue was upon the defendant No.1. It is alleged by defendants that the plaintiff has come to this Court on the basis of revival letter dated 18.10.2008 which is a forged and fabricated document as it was never signed by the defendants on the aforesaid date but on 18.11.2005 CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 5/10 i.e. the date when loan documents were executed. Plaintiff denied the said fact.
16. Suit for Recovery of Money can be filed within a period of 3 years from the date of borrowing. Payment of any amount towards debt extends the period of limitation as per Section 19 of the Limitation Act, 1963, which reads as under:
"19. Effect of payment on account of debt or of interest on legacy. Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment."
17. Similarly, limitation period is also extended by way of acknowledgement in writing in view of provisions contained in Section 18 of the Limitation Act 1963, which reads as under: "18. Effect of acknowledgement in writing. (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
(2) Where the writing containing the CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 6/10 acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received."
18. In the present case, loan was granted to the defendant No.1, on 18.11.2005 and payment was to start from January 2006. This fact has been admitted by the defendants in their written statement. The present suit was instituted on 01.04.2010 i.e. after a period of 3 years. Plaintiff has relied upon part payments received from the defendant as well as the revival letter dated 18.10.2008 which is Ex.PW1/9 and averred that the suit has been filed within the limitation period of 3 years which got extended by virtue of the provisions contained in Section 18 and Section 19 of the Limitation Act, 1963.
19. Defendants alleged that Ex.PW1/9 is a forged and fabricated document. It was alleged that though the document was signed by the defendants, it is antedated as it was signed on 18.11.2005 and not on 18.10.2008 as shown by the plaintiff. No cogent and reliable documentary evidence was led by the defendants to prove this fact. However, even if it is assumed for the sake of arguments put forth by the defendants that Ex.PW1/9 is antedated and hence not a valid acknowledgement within the meaning of Section 18 of the Limitation Act, 1963, Section 19 of the said Act still comes to the rescue of the plaintiff.
20. The account statement Ex.PW1/4 (colly) duly proved by PW1 has not been disputed by the defendants except to the extent of rate at which the interest amount is calculated. As per Ex.PW1/4 (colly), defendant No.1 made regular payments by way of monthly instalments of Rs.5,341/ by account CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 7/10 transfer till 19.01.2008. He became irregular in making the payments thereafter. Hence, even if the transfer of money on 19.01.2008 is taken as last payment made by the defendant No.1, the limitation period shall be extended by virtue of Section 19 of the Limitation Act, 1963 and a complete period of 3 years is available to the plaintiff to institute the suit starting from 19.01.2008.
21. The present suit was instituted by the plaintiff on 01.04.2010 i.e. within a period of 3 years from 19.01.2008 and hence the suit was filed within the limitation period.
22. Issue No.2 is therefore decided in favour of the plaintiff and against the defendants.
Issue No. 1: Whether the plaintiff is entitled to the decree of Rs.1,44,759/ along with interest @16% per annum as prayed for? OPP
23. The burden to prove this issue was upon the plaintiff. Plaintiff has prayed that a decree for a sum of Rs.1,44,759/ be made in its favour along with interest @16% per annum till realization of decreetal amount.
24. Plaintiff relied upon the loan documents Ex.PW1/1 to Ex.PW1/3 and the statement of account Ex.PW1/4 (colly) and certificate Ex.PW1/5 to prove that a sum of Rs.1,44,759/ was due against and payable by the defendants on the date of institution of the suit.
25. The documents Ex.PW1/1 to Ex.PW1/5 were not disputed by the defendants. However, it was averred on behalf of the defendants that Ex.PW1/9 is a forged and fabricated document. It has already been held while deciding issue No.2 that Ex.PW1/9 is not a relevant document for the purpose CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 8/10 of decision in the present suit. Otherwise also, defendants failed to prove that Ex.PW1/9 is forged and fabricated by leading reliable and cogent documentary evidence. The material documents necessary for the decision of the present suit having not been disputed by the defendants. It is proved that the defendant No.1 borrowed a sum of Rs.2,00,000/ from the plaintiff and defendant No.2 stood as guarantor thereby making himself jointly and severally liable with defendant No.1. Defendant No.1 defaulted in payment, which fact is also admitted by not making a specific denial in the written statement. The statement of account is not disputed. Defendants have only claimed that the agreed rate of interest was @12.75% per annum and not @16% per annum and therefore the later rate cannot be charged. Plaintiff did not produce anything on record to show that defendant No.1 was liable to pay interest @16% per annum. Defendants also averred that no interest can be charged after an account is declared sick but even defendants did not produce or relied upon any legal provision in this regard.
26. As per the statement of account Ex.PW1/4 (Colly) a sum of Rs.1,23,266/ was due against and payable by the defendants on 28.02.2009. Account of the defendants was closed thereafter, as per para No. 8 of the plaint. Thereafter, plaintiff calculated interest @16% per annum from 01.03.2009 to which no agreement was shown. Plaintiff accordingly is entitled to interest only @12.75% per annum which is the agreed rate of interest.
27. Resultantly, plaintiff is entitled to recover a sum of Rs.1,23,266/ along with simple interest @12.75% per annum from 01.03.2009 till the date of realization of the said amount, out of which interest uptill 31.03.2010 is towards CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 9/10 prelitigation period and interest from 01.04.2010 till recovery is towards pendentelite and future period. Issue No.1 is decided accordingly.
Relief:
28. The suit of the plaintiff is hereby decreed for a sum fo Rs. 1,23,266/ along with simple interest @12.75% per annum from 01.03.2009 till 31.03.2010 and simple interest at the same rate from the date of institution i.e. 01.04.2010 till the date of recovery. Cost of the suit is also awarded in favour of the plaintiff and against the defendants. The defendants shall be liable to pay the entire decreetal amount including interest and costs jointly and severally.
29. Decree sheet be prepared.
30. File be consigned in record room.
Announced in the open court.
on 24.07.2014 (JYOTI KLER)
ASCJ/JSCC /Gdn.JUDGE
SOUTHEAST, SAKET COURTS, NEW DELHI
CS 107/13 State Bank of India Vs. Santosh Kumar Verma & Anr. 10/10