Delhi District Court
Syndicate Bank vs Sh. Raju on 29 March, 2007
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IN THE COURT OF SH. SATISH KUMAR ARORA, CIVIL JUDGE, DELHI
SUIT NO : 290/06/05
Syndicate Bank
a Body Corporate constituted under the
Banking Companies (Acquisition &
Transfer of Undertakings Act) 1970
having its head office at Manipal in
the state of Karnataka and interalia
a branch at Central Market,
Ashok Vihar, Delhi.
..........Plaintiff
Versus
Sh. Raju,
Proprietor : M/s. Gayatri Impex,
B-4/114, Sector-8, Rohini,
Delhi - 110 085.
..........Defendant
SUIT FOR RECOVERY
EX-PARTE JUDGMENT
1.This is a suit for recovery of Rs. 2,19,385/- (Rupees Two Lacs Page 1 of 7 -:2:- Nineteen Thousand Three Hundred Eighty Five Only) filed by the plaintiff bank against the defendant.
2. Brief facts of the case as stated in the plaint are that the plaintiff bank is a body corporate constituted under the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1975 having, intere alia, its branch office at Central Market, Ashok Vihar, Delhi. It is the case of the plaintiff that the defendant representing himself to be the sole proprietor of M/s. Gayatri Impex approached and requested the plaintiff bank for opening a current account which was duly acceded to by the plaintiff bank and a current account bearing no. CA 1693 was opened in the name & style of proprietorship concern M/s. Gayatri Impex on 30.08.2003. Current account was regularly operated by the defendant and when there was a credit balance of Rs. 89,011/- in the defendant's account, the defendant approached the plaintiff bank with the request that he was in urgent need of funds to meet certain business commitments, therefore requesting the plaintiff bank for allowing temporary overdraft facility in the aforesaid current account of the defendant. The plaintiff bank acting on representation of the defendant, Page 2 of 7 -:3:- allowed the temporary overdraft facility by passing a self cheque for a sum of Rs. 3,90,000/- on 11.10.2003 resulting in debit balance of Rs. 3,00,989/-. The said temporary overdraft facility was allowed by the plaintiff bank, intere alia, on the condition that the same would be deposited by the defendant within a period of 14 days from the date of availment. It is the case of the plaintiff that the said overdraft facility falls in the category of clean advance and the rate of interest as prescribed is 16% per annum compounded monthly.
3. It is further the case of the plaintiff that the defendant, after availing the temporary overdraft, failed to deposit/clear the amount in respect of the debit balance. The plaintiff bank repeatedly called upon the defendant to clear the debit balance along with interest but the defendant, on one pretext or the other, avoided the making of the payment. Resultantly, the plaintiff sent a legal notice dated 23.09.2004 calling upon the defendant to clear the dues. Neither any payment nor any reply was given by the defendant, hence, the present suit of the plaintiff bank against the defendant. It is the case of the plaintiff that plaintiff bank is maintaining regular books of account in its normal and usual course of banking business and a sum of Rs. 2,19,385/- is Page 3 of 7 -:4:- due and outstanding in current account no. CA 1693 (now, NPL account no. 10/04) of the defendant as on 31.05.2005. Copies of the statement of account duly certified under the Bankers' Book Evidence Act are attached with the plaint as annexure A.
4. Defendant remained unserved through ordinary process at the address given by the plaintiff and the plaintiff having no other address of the plaintiff, moved an application for substituted service of the defendant as per provisions of Order 5 Rule 20 CPC. The defendant was duly served through publication in the newspaper "The Statesman" dated 25.10.2005. Despite due service, defendant remained absent and was accordingly, proceeded ex-parte by an order of this court dated 14.12.2005.
5. Plaintiff has examined PW-1 & PW-2 as its witnesses in ex-parte plaintiff's evidence in support of its case. PW-1, Sh. Dharmender Kumar, Clerk of the plaintiff bank was examined by way of his affidavit Ex. PW-1/A who reiterated the case of the plaintiff bank and also brought the original Power of Attorney, Ex. PW-1/1 executed by the Directors of the plaintiff bank Page 4 of 7 -:5:- in favour of Sh. Anil Goel, attorney of the plaintiff bank.
6. PW-2, Sh. Rakesh Gupta, Senior Manager of the plaintiff bank was examined by way of affidavit which is Ex. PW-2/A. It was stated by the said witness that he was posted in the Ashok Vihar branch of the plaintiff bank from June, 2001 onwards to June, 2004. The said witness identified the signatures of the defendant in defendant's application for opening of current account with the plaintiff bank which is Ex. PW-2/1. The said witness also identified the self cheque issued by the defendant dated 11.10.2003 which is Ex. PW-2/2.
7. Both the plaintiff's witnesses have reiterated the facts as alleged in the plaint. Plaintiff has produced on record the application by the defendant for opening of current account which is Ex. PW-2/1, cheque in original which is Ex. PW-2/2 bearing the signatures of the defendant as proprietor of M/s. Gayatri Impex, the statement of account of the defendant in the name of M/s. Gayatri Impex, maintained by the plaintiff bank and duly certified and admissible under the Bankers' Book of Evidence Act, certified copy of the Page 5 of 7 -:6:- shadow account ledger, Ex. PW-1/4, of M/s. Gayatri Impex, the proprietorship concern of the defendant duly admissible under the Bankers' Book of Evidence Act, the legal notice dated 23.09.2004, Ex. PW-1/2 along with postal receipt, Ex. PW-1/2A and the Power of Attorney, Ex. PW-1/1.
8. Since the defendant was proceeded ex-parte, therefore, the testimony of the plaintiff witnesses goes unrebutted and read with the documents placed on record by the plaintiff bank, duly discharges the onus on the plaintiff to prove its case. From the above said, it becomes clear that the defendant had defaulted in clearing the dues on account of temporary overdraft facility availed by him with the plaintiff bank.
9. Considering the above said and from the documents placed on record, this court is of the considered opinion that the present suit has merits. Accordingly, suit of the plaintiff is decreed in the sum of Rs. 2,19,385/- in favour of the plaintiff and against the defendant along with interest @ 12% per annum from the date of filing of the suit till the date of decree. Costs are also awarded in favour of the plaintiff. Decree sheet be drawn accordingly. Page 6 of 7 -:7:- File be consigned to Record Room.
Announced in open court:
Dated : 29th March, 2007 (SATISH KUMAR ARORA) (Three copies attached) CIVIL JUDGE, DELHI
This judgment contains 7 pages and each page bears my signatures. Page 7 of 7