Delhi District Court
Vijaya Bank vs . Manoj Chauhan Page No. 1 Of 15 on 27 October, 2021
IN THE COURT OF Ms. SUNENA SHARMA: ADDL. DISTT JUDGE- 04:
PATIALA HOUSE COURTS: NEW DELHI
CS No: 56750 of 2016
Date of Institution:04.10.2013
Arguments concluded : 11.10.2021
Date of decision : 27.10.2021
Vijaya Bank
through Chief Manager
Asset Recovery Management Branch
8718, D.B Gupta Road
Ram Nagar, Paharganj, New Delhi-110055
.........Plaintif
Versus
1. Manoj Chauhan
Prop. M/s Hometech Switchgear & Controls
office at WZ-430/B-2, Naraina,
New Delhi 110028
2. Sh. O.P Chauhan
s/o Late Sh. Hardwari Lal
r/o WZ-430/B-2, Naraina
New Delhi 110028 ........Defendants
JUDGMENT
1. Vide this judgment, I shall decide the suit filed by the plaintif against the defendants for recovery of sum of Rs.7,61,795.90 (Rupees seven lakh sixty one thousand seven hundred ninety five ninety paisa only). The suit was filed as a summary suit, wherein the leave to defend application filed by defendants was allowed vide order dated 19.12.2014.
2. As per plaint, plaintif is a corporate body constituted under the Banking Companies Act (Acquisition and Transfer of Undertaking) and carrying business of banking in India under the rules and regulations and guidelines of Reserve Bank of India. Suit is filed by Sh. Ashwin Kumar V. CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 1 of 15 Rami, Chief Manager- Vijaya Bank, Asset Recovery Management Branch at New Delhi, a duly constituted attorney of plaintif, is empowered to institute, sign and verify the pleadings, affidavit, applications, vakalatnama etc on behalf and in the name of Vijaya Bank. Defendant no. 1 is the sole proprietor of M/s Hometech Switchgear & Controls and Defendant no. 2 is his father.
3. As per plaintif's case, defendant no.1 and 2 approached plaintif bank at its Delhi Cantt. branch and requested for grant of loan for the purpose of proprietorship business of defendant no.1 under the name and style of M/s Hometech Switchgear & Controls. The defendants also assured that if loan would be granted and sanctioned to them then it would be secured by hypothecation of machinery kept at the place of business of defendant no.1. Defendant no.2, who is the father of defendant no.1 also ofered to stand as guarantor in respect of credit assistance sought by defendant no.1.
4. On 12.11.2008, at request of defendants, loan of Rs.7,00,000/- was sanctioned by plaintif and as per terms of sanction the loan was to be repaid in sixty equated monthly installments of Rs.17,120/- each commencing w.e.f. 12.12.2008 with interest at the Vijaya Bank Prime Lending Rate which may be revised from time to time subject to a minimum of 13.25% per annum with monthly rests. The loan was also to be secured by hypothecation of machinery at the place of business of defendant no.1 valued at Rs.9.54 lakh (approx).
5. In furtherance and acceptance of sanction terms, the defendants executed various documents such as Articles of Agreement, Hypothecation agreement, Demand Promissory Note, Consideration Receipt, Letter of repayment, Letter of Undertaking and Letter of Guarantee all dated 12.12.2008 in favour of plaintif bank at its Delhi Cantt Branch.
6. It is stated in the plaint that defendants had also agreed, assured and undertaken that in the event of default of payment by the due date, or earlier as and when demanded by the Bank, of the amounts of the CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 2 of 15 loan/facility or any installment thereof and/or interest due thereon, and/or on breach of them of any covenants, terms and conditions contained in any of the documents, agreements, undertaking etc. executed or entered into by them with the bank in relation of the aforesaid loan/facility, they shall pay additional interest @2% per annum, on the amounts in default from the date of default or on the entire amount of the loan/facility outstanding which shall be payable on demand or from the date on which it becomes payable or from the date of such breach as the case may be.
7. The above loan was disbursed to the defendants vide account no.600609041000027 maintained with the plaintif in the name of M/s Homtech Switchgear & Controls (proprietorship firm of defendant no.1). After availing the loan facility, defendant no.1 failed to maintain the proper financial discipline and repay the EMIs as agreed with the bank. Plaintif sent reminders to defendants to maintain the account in proper manner. On 11.06.2011, defendants approached the plaintif bank and admitted the failure to repay the dues and sought time. Despite making the aforesaid promises, assurances and representations, defendants failed to act as per terms of the written contract and fulfill their commitments towards plaintif bank. As per statement of account maintained by plaintif bank, as on 30.06.2013, a total sum of Rs.7,61,795.90/- with further interest @ 16.75% per annum is due, outstanding and payable by defendants. It is stated that defendants no.1 and 2 are jointly and severally liable to repay the loan in accordance with terms of the loan.
8. On 30.08.2011, the loan account no.600609041000027 was transferred to the plaintif bank's asset recovery management branch at New Delhi for taking appropriate legal action in the matter. Upon such transfer for internal purposes and record, the account no. 600609041000027 is numbered as 603609041000016.
9. As per plaint, the cause of action for filing the present suit arose in favour of plaintif and against the defendants on the date when the defendants approached the plaintif bank for grant of loan; on 12.11.2008, CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 3 of 15 when plaintif sanctioned the loan in favour of defendants and loan documents were executed by defendants; after availing loan when defendants failed to repay the loan as agreed with plaintif bank; when plaintif sent reminders and defendants were requested to liquidate the outstanding dues and liability, and on 11.06.2011, when defendants approached the plaintif bank at Delhi Cantt branch and issued acknowledgement of liability letter thereby accepting their liability to pay sum of Rs.5,79,770.90/- which included interest upto 11.06.2011 under the account no. 600609041000027 with plaintif bank. Vide document dated 11.06.2011, defendant no.1 allegedly acknowledged and admitted dues and liability towards the plaintif bank thus, bringing the suit within the period of limitation as prescribed under law.
10. As regard the territorial jurisdiction of the court, the plaint mentions that loan was advanced to the defendants by the plaintif branch at New Delhi. The documents forming basis of present suit were executed at Delhi Cantt. and the defaults were committed at New Delhi. The whole cause of action is stated to have arisen in New Delhi so as to confer territorial jurisdiction to this court to entertain and decide the present suit. For the purpose of court fee, the suit has been valued for Rs.7,61,795.90 upon which ad-valorum court fee has been paid.
11. Defendants contested the suit by filing their separate written statements. In written statements, defendants opposed the plaintif's claim on merits as well as on some preliminary objections relating to absence of cause of action, suit being not filed, signed and verified by authorised person. In addition, defendant no.1 also took the objection of bar of order 2 Rule 2 CPC stating that plaintif bank has already filed original application before the Debt Recovery Tribunal, New Delhi for recovery of other alleged loan account i.e. O.A No.90/2013 tilted as "Vijaya Bank Vs. M/s Homtech Switchgear and Controls" and plaintif bank ought to have included the present amount in said O.A before DRT as alleged loan sanctioned by plaintif bank are interconnected with each other as per plaintif's own statement of account filed. Defendant no.1 however, categorically denied CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 4 of 15 to have ever taken any such loan from plaintif bank and alleged that documents were signed in blank and some printed documents were also got signed from the defendant no.1. Defendant no.1 stated that he had never opened any loan account bearing no.600606211000027 as alleged by plaintif bank. It is stated that documents filed by plaintif bank i.e. loan sanction memo is forged and fabricated as defendant no.2 never signed the said documents. Further, defendant no.1 never acknowledged the liability on 11.06.2011 as alleged by plaintif bank. It is also submitted that plaintif bank is though alleging that present loan was secured by hypothecation of machinery but no machinery has been mentioned in agreement or hypthecation agreement, therefore, it is clear that alleged loan documents were blank and filled up later on by plaintif bank to cover his misdeed and to gain unlawfully. Further that, there are many unauthorized and illegal entries in the account statement annexed by the plaintif bank, which are not in accordance with banking rules and regulations. It is stated further that plaintif bank is liable to be prosecuted for perjury under section 340 Cr.PC for using forged documents before the court.
12. In written statement filed by defendant no.2, defendant no.2 came up with the plea that plaintif bank has concealed the most material fact that defendant no.2 had filed an appeal bearing Inward no.215/2012 in S.A No.201/2012 (Delhi-III) before the DRAT titled as " O.P Chauhan Vs. Vijaya Bank" and the DRAT referred the documents i.e. mortgage deed and letter of guarantee and other documents allegedly executed by the defendant no.2 to CFSL for hand writing expert opinion about the signatures of defendant no.2 and as per CFSL report signatures of defendant no.2 on the said documents were forged and fabricated. Defendant no.2 categorically denied to have mortgaged the property bearing no.WZ-430 B/2, Naraina, New Delhi to plaintif bank or to have executed any documents in plaintif's favour as alleged in the plaint. It is stated further that present suit is bad for suppression of material facts and for non disclosure of complete and factual position on record.
CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 5 of 1513. After completion of pleadings following issues were framed on 08.05.2015:-
1. Whether the plaintif is entitled for a decree of recovery of amount of Rs.7,61,795.90 as prayed for? OPP
2. If the issue no.1 is proved in affirmative, whether the plaintif is entitled for pendentelite and future interest & if so, at what rate at prayed for? OPP
3. Whether the suit of plaintif is liable to be dismissed u/o 7 rule 11 CPC ? OPD
4. Whether the suit of the plaintif is barred u/o 2 rule 2 of CPC?
OPD
5. Relief.
14. In order to prove its case, plaintif examined only one witness PW1 Sh. Kamal Kishore, Chief Manager at Vijaya Bank, Asset Recovery Management Branch.
15. PW1 filed his affidavit in evidence wherein he relied upon following document :
SL. No. DOCUMENTS EXHIBITS
1. Power of Attorney issued by bank Ex.PW1/1
2. Loan sanction memo Ex. PW1/2
3. Letter of proprietorship executed by Ex. PW1/3
defendant no.1
4. Articles of agreement dated Ex. PW1/4
12.11.2008
5. Hypothecation agreement dated Ex.PW1/5
12.11.2008
6. Demand promissory note dated Ex. PW1/6
12.11.2008
7. Consideration receipt dated 12.11.2008 Ex.PW1/7
8. Letter of repayment dated 12.11.2008 Ex.PW1/8
9. Letter of undertaking dated 12.11.2008 Ex.PW1/9
10. Letter of guarantee dated 12.11.2008 Ex.PW1/10
11. Letter dated 11.06.2011 Ex.PW1/11
12. Statement of loan account Ex.PW1/12
13. Certificate issued u/s 2 A of Banker's Ex.PW1/13
Book of Evidence Act
In the evidentiary affidavit, PW1 has reiterated the contents of the plaint on oath and reaffirmed the averments thereof, which are not CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 6 of 15 repeated herein for sake of brevity. PW1 was duly cross examined by Defendant's counsel and relevant part of his cross-examination shall be referred while recording finding on the issues.
16. As per record, PE was closed on 25.05.2017. Thereafter, despite repeated opportunities, defendants failed to lead any evidence in their defence and hence, my predecessor was constrained to close defendants' opportunity to lead evidence and DE was closed vide order dated 23.07.2018. Later on, defendant no. 2 moved an application under section 151 CPC for seeking an opportunity to lead evidence but the same was also dismissed vide order dated 07.03.2019.
17. I have heard the arguments and perused the entire record including the written arguments filed on behalf of plaintif.
ISSUE NO.1
i) Whether the plaintif is entitled for a decree of recovery of amount of Rs.7,61,795.90 as prayed for? OPP
18. The onus of proving this issue was put up on the plaintif. In order to prove this issue plaintif examined PW1 Sh. Kamal Kishore, The Chief Manager, Vijaya Bank, Asset Recovery Branch, New Delhi. As per his deposition prior to his posting as Chief Manager in Asset Recovery Mangement Branch of Vijaya Bank, New Delhi, the said branch was headed by Sh. Ashwin Kumar V. Rami who had signed, filed and verified the plaint as well as the accompanying affidavit. PW1 identified his (previous AR) signatures on the plaint saying that he had seen him writing and signing the same. PW1 further deposed that he was constituted attorney of the plaintif bank and was authorized on this behalf vide Ex.PW1/1. Further that he was conversant with the facts of the case as he derived information from the records maintained by the bank in ordinary course of its business.
19. As per deposition of PW1, he has deposed in the court on the basis of the record. As per contents of evidentiary affidavit of PW1, his deposition is more or less on the lines of averments in the plaint. PW1 CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 7 of 15 relied upon various loan documents Ex PW1/1 to PW1/10, details of which have been given herein above.
20. In the written statement, defendants categorically denied their liability to pay any amount to the plaintif by taking the plea that no loan was taken from the bank by defendant no.1 and documents in blank as well as some printed documents were got signed from defendant no.1. Further, it was alleged that loan sanction memo filed by bank was forged and fabricated as defendant no.2 never signed said document and plaintif bank in order to cover its mis-deeds forged the signatures of defendant no.2 on said document. Defendant no.1 also denied to have ever acknowledged the liability on 11.06.2011 and came up with the plea that plaintif bank had obtained his signatures on many blank documents and AOD filed by plaintif bank was also forged and fabricated.
21. Perusal of the cross-examination of PW1 however, shows that except challenging the competence of witness PW1 on account of his not having witnessed the execution of loan documents or the filing of the plaint by the earlier attorney Sh. Ashwin Kr. V. Rami, not a single question was put to the witness for denying the execution of loan documents. No question was even put to the witness to confront him with the defence that signatures of defendant no.1 were taken on blank documents as alleged in the written statement or that the loan documents placed on record were fabricated on said blank documents. Only a vague suggestion has been put to the efect that documents alleged to be signed by defendant no.1&2 did not bear their signature and that said documents had been forged. Said suggestion is, however, contrary to the plea taken by the defendant no.1 in his written statement wherein he appears to have only denied his father's (D-2) signature on the loan documents and in respect of his own signatures defendant no.1 took the plea that his signatures were taken on blank documents/printed blank document. But, even said plea of defendant no.2 seems to be a sham plea for the reason that in the written statement defendant no.1 has though alleged that his signatures were taken on many CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 8 of 15 blank and printed papers but he did not disclose as to under what circumstances, he happened to sign said documents at the instance of plaintif bank. Admittedly, there is no plea that signatures were taken forcibly or under some misrepresentation or coercion. In said circumstances, it was incumbent upon the defendant no.2 to disclose as to why he allegedly signed the blank documents on the asking of the plaintif bank. The plaintif has filed all the original loan documents as well as the statement of account which was maintained by bank during normal course of business. The statement of account Ex. PW1/12 is reflective of certain payments of EMIs in the present loan account no.600606211000027 from defendant no.1's another cash credit facility account no.600606211000005. It is pertinent to note that said deductions were made by the plaintif towards payment of EMIs of present loan as per the mandate given by defendant no.1 at the time of sanction of loan recorded vide loan sanction memo Ex.PW1/2 (wrongly mentioned as Ex.PW1/3 on the document). It is nowhere the case of defendant no.1 that he ever objected to debiting of his aforementioned account no. 600606211000005 for the payment of EMIs of present loan.
22. In the backdrop of above circumstances, the onus to prove alleged forgery or fabrication of documents was upon defendants. And said onus would not stand discharged simply by putting a bald suggestion that documents have been forged. As already pointed out above, in his written statement, defendant no. 1 has not disputed his signature on the loan documents but took the plea that plaintif had got some printed blank paper signed from him. Whereas, from the suggestion put to PW1, not only defendant no. 2 but defendant no.1 also seems to have disowned his signature on the loan documents. No positive evidence has been adduced by defendants to prove their defence. In cross-examination of PW1, there does not seem to be a serious contest of plaintif's case regarding execution of documents and sanction of loan as the whole thrust of cross examination is to challenge the authority of previous AR who instituted the suit on behalf of plaintif and that of PW1 to depose on behalf plaintif. PW1, CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 9 of 15 as per his own deposition has testified on the basis of bank records which was maintained by plaintif bank in ordinary course of business. The genuineness of bank record has been simply challenged on a bald and vague plea that documents were got signed from defendant no.1 on blank printed papers. Nothing was disclosed either in written statement nor by way of cross examination as to under what circumstances, the documents were allegedly signed by defendant no.1. It is nowhere the case of defendants that signature of defendant no. 1 were taken forcibly or fraudulently or that he ever made any police complaint regarding fabrication of documents.
23. An argument was raised on behalf of defendants that since PW1 had not witnessed the execution of documents, therefore, his testimony can not be relied upon in proof of loan documents. However, said argument is unacceptable in as much as the witness has deposed on the basis of record maintained during regular course of banking business. The earlier attorney had already retired from the service which necessitated the appointment of PW1 as attorney of plaintif vide Ex PW1/1. In ICICI bank ltd vs. Ashok Kumar, RFA 570 of 2015, decided on 01.06.2018, it was observed by Hon'ble Delhi High Court that:-
"So long as the originals are produced on record and same are not denied and there is no allegation that the same are forged and fabricated, there can be no reason for the Court to disbelieve the same. The original documents having been placed on record and duly exhibited, the averments in the suit stand proved. The finding of the Trial Court that as the witness had not personally witnessed the defendant signing the agreement, the same cannot be believed, is a completely incorrect approach. The defendant has not disputed his signatures on the original agreement, which is placed on record. Thus, there is no reason to disbelieve the same."
24. Even in the instant case, it is quite clear that just to avoid their liability to pay back the loan amount, the defendants took sham pleas without any basis and substance. None of the defendants did bother to lead any positive evidence to prove said pleas. By merely putting a suggestion CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 10 of 15 regarding forgery of loan documents, the defendants could not shift the onus on the plaintif, especially in the light of the fact that defendant no.2 kept paying numerous EMIs for repayment of present loan from his another cash credit hypothecation (CCH) account maintained in the same bank. No CFSL report allegedly filed before DRAT in SA no. 201/2012(Delhi-III), vide which mortgage deed and letter of guarantee were allegedly found to be forged has been placed on record.
25. Counsel for plaintif has argued that said appeal before DRAT was filed by defendants against an order passed in SARFASI Act, and said petition was dismissed for non prosecution. Counsel further informed that said proceedings were initiated in respect of a diferent cash credit facility account (CCH) no.60060211000005, in respect of which plaintif herein had also filed OA no. 90/2013 under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and same was allowed in favour of plaintif herein by DRT Tribunal-I vide judgment dated 12.09.2014 and Recovery Certificate had also been issued on 16.09.2014. Copy of both the judgement and certificate have been placed on record. It is further argued that present loan was a secured loan under loan account no. 600609041000027 wherein loan of only Rs. 7,00,000/- was sanctioned and same was payable in 60 EMIs of Rs17120 commencing from 12.12.2008, and defendant no. 1 agreed to pay it from his aforementioned credit facility (CCH) account no. 60060211000005 and same is duly mentioned in loan sanction memo Ex PW1/2. It is further argued that as per statement of account filed on record, defendant no. 1 had paid certain EMIs of present loan from the aforementioned loan account of CCH and hence, it does lie in mouth of defendants to disown the loan transaction by taking the plea of forgery and fabrication.
26. I have carefully perused the statement of account Ex PW1/12 which is reflective of various payments of EMIs from said account no. 60060211000005. Certificate under section 2A of Bankers Book of Evidence Act, 1891 which is akin to provision of section 65B of IE Act has also been filed on record as ExPW1/13, in support of said statement of account.
CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 11 of 1527. Even defendant no.2 did not confront PW1 regarding any such alleged CFSL report nor he led any evidence in defence. Only a bald suggestion was put to PW1 that documents alleged to be signed by D-1 and D-2 did not bear their signature and that they had been forged. There is no specific suggestion put to PW1 on behalf of defendant no.2 regarding loan sanction memo and letter of guarantee Ex.PW1/2 and Ex.PW1/10 which seem to be only documents signed by defendant no.2. As already noted above, in the written statement defendant no.1 had never denied his signatures on loan document but came up with the vague plea that none of the documents were executed by him as required under the law and plaintif bank had got the documents/papers signed in blank from defendant no.1.
28. Furthermore, defendant no.2 did not file any document of SA no. 201/2012 filed before DRAT or any report of CFSL filed in said proceedings regarding alleged forgery of his signatures on the mortgage deed and letter of guarantee relied upon by the plaintif bank in said proceedings. Nothing has been stated in the written statement regarding connection of said DRAT proceedings with the present case. As already noted above, defendants did not even lead any evidence to prove their defence taken in the written statement.
29. During the course of arguments, it was vehemently argued on behalf of defendants that testimony of PW1 could not be relied upon because at the time of alleged transaction, he was not even posted in Delhi and as per his own deposition he had not witnessed the execution of the alleged documents relied upon by the plaintif nor he had seen Mr. Ashwin Kr. V. Rami signing the plaint or verifying the same. However, I find no merits in said arguments for the reason that the plaintif's case is based on documentary evidence and the witness has deposed regarding said documents on the basis of the records by saying that all the said documents were maintained by the plaintif bank during the course of ordinary business. Mr. Ashwin Kr. Rami had already retired from the job, CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 12 of 15 therefore, at his place, PW1 joined as Chief Manager of Asset Recovery Branch of the plaintif bank. In said circumstances, there is no legal bar for the witness to depose on the basis of the record for proving said documents. The statement of account has been certified in accordance with section 2 (A) of Banker's Book of Evidence Act as a certificate in this regard has been placed on record as Ex.PW1/13. As per statement of account of Ex.PW1/12, an amount of Rs.7,64,241.90 was outstanding in account of defendant no.1 as on 12.06.2013.
30. As per record, defendant no.1 acknowledged the liability to pay Rs.5,79,770.90 to plaintif bank vide AOL dated 11.06.2011 which is available on record as Ex.PW1/11. In the light of said written acknowledgement of debt, the limitation period got extended as per section 18 of Limitation Act. From said date of 11.06.2011, the suit of plaintif is well within limitation as same was filed on 28.10.2013.
31. In the light of aforementioned discussion, the plaintif bank by filing the original loan documents and statement of account and then exhibiting them through a Principal officer of the plaintif bank, has duly proved the averments contained in the plaint and proved the case by preponderance of probability. I do not find any reason to disbelieve the testimony of PW1 or the documents relied upon by him in his evidentiary affidavit especially in view of the sham defence taken by the defendants. The unscrupulous borrowers cannot be allowed to siphon of huge loans taken from the banks/financial institutions by taking such sham pleas and technical objections.
32. In view of above, the plaintif has successfully prove the issue by preponderence of probability and his entitlement for recovery of the suit amount of Rs.7,61,795/- which is been shown to be outstanding in the account of defendant no.1 as per Ex.PW1/12. The issue is accordingly is decided in favour of plaintif and against the defendants.
ISSUE NO.2 CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 13 of 15
ii) If the issue no.1 is proved in affirmative, whether the plaintif is entitled for pendentelite and future interest & if so, at what rate at prayed for? OPP
33. In the plaint, plaintif has claimed pendentelite and future interest as per contractual rates i.e. PLR plus 2% per annum with monthly rest on the suit amount which in my considered view is quite excessive for the period subsequent to filing of suit. As per section 34 of CPC, in case of non commercial transaction, future interest only upto 6% can be awarded on the suit amount.
34. In the light of above, I am inclined to award 10% interest on the suit amount from the date of institution of the suit till the date of decree while interest @ 6% per annum is awarded towards future interest on the decreetal amount. The issue stands accordingly decided in favour of plaintif and against defendants.
ISSUE NO.3
iii). Whether the suit of plaintif is liable to be dismissed u/o 7 rule 11 CPC ? OPD
35. The onus of proving this issue is upon defendants. However, besides taking bald objection of no cause of action in the written statement, the defendants did not lead any iota of evidence on above mentioned issue. In view of above and in the light of my finding on issue no. 1, this issue is decided in favour of plaintif and against the defendants.
ISSUE NO.4
iv) Whether the suit of the plaintif is barred u/o 2 rule 2 of CPC? OPD
36. The onus of this was again upon defendants. The said objection of order 2 Rule 2 has been taken in the light of the OA no.90/2013 filed by plaintif against defendants before Debt Recovery Tribunal, New Delhi. Even as per the written statement of defendant no.1 said OA was filed by plaintif in respect of some other loan account. Except taking this objection in the CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 14 of 15 written statement, defendants did not adduce any evidence to discharge the onus of said issue nor even PW1 was put any suggestion with regard to said OA filed before Debt Recovery Tribunal. At the time of final arguments, plaintif had filed on record the copy of the judgment of DRT-III, Delhi in OA no.19/2013. Perusal of said judgment shows that said OA was filed in respect of CCH account no.60060211000005 and one SL (secured loan) account no. 600609041000031. Whereas, present suit has been filed for recovery of loan disbursed through separate account no. 600609041000027. Hence, it is clear that present suit has been filed on a separate cause of action and as such, I do not find any applicability of bar of order 2 Rule 2 CPC in the instant case. The issue is accordingly decided in favour of plaintif and against the defendants.
RELIEF
37. In view of above, suit is hereby decreed against both the defendants for the sum of Rs.7,61,795/- alongwith 10% per annum pendentelite and 6% per annum future interest thereon. Costs of the suit is also awarded in favour of the plaintif and against the defendants. Defendants shall be liable to pay the awarded amounts jointly and severally. Decree sheet be drawn accordingly. File be consigned to Record Room.
(Sunena Sharma) Addl. Distt Judge-04 Judge Code : DL00222 Patiala House Courts : New Delhi Announced on 27th day of October 2021 CS No: 56750 of 2016 Vijaya Bank Vs. Manoj Chauhan Page No. 15 of 15