Delhi District Court
Unknown vs Sh.Ganesh Chandran on 6 February, 2013
IN THE COURT OF REETESH SINGH,
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST),
KARKARDOOMA COURTS, DELHI.
CS 348/2009
Date of institution of the case : 05.12.2009
Date on which Judgment was reserved : 19.01.2013
Date on which Judgment was pronounced : 06.02.2013
Unique ID No. :2402C0355842009
IN THE MATTER OF :-
CANARA BANK a body corporate
incorporated under The Banking Companies
(Acquisition and Transfer of Undertaking)
Act 1970 (Act No.5 of 1970) having its head
office at 112, J.C.Road, Bangalore, and branches
amongst others one at Dilshad Garden Delhi ............PLAINTIFF
versus
1. SH.GANESH CHANDRAN
son of Sh.K.P.Balchandran Pillai
A-106/G-1, Dilshad Colony, Delhi 110 095
PRESENTLY AT
37-B, Bright Well Crescent,
Tooting Broadway London (UK) SW 179AD
2. SH.K.P. BALACHANDRAN PILLAI
son of Sh.KP Padmanabaa Pillai
A-106/G-1, Dilshad Colony, Delhi 110 095 ................DEFENDANTS
JUDGMENT
1. The plaintiff bank, a body corporate, constituted and functioning under the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 having its has filed the present suit through its Manager Sh.Roshan Lal who is also holder of General Power of Attorney of the plaintiff bank and is authorized to sign and verify the pleadings and to institute the present suit.
CS 348/2009 Page No. 1/72. The plaintiff bank has filed the present suit praying for for recovery of Rs. 6.97,220/- along with interest besides costs of the suit. It is averred that the defendant No.1 who was an account holder of the plaintiff bank approached the plaintiff bank for grant of loan facility for Rs.4,00,000/- for financing his education to undergo the course of Bachelor of Business Administration from the University of Sunderland at Wigan & Leigh College. The defendant No.2 is the father of the defendant No.1. The plaintiff bank agreed to provide the loan to the defendant No.1 under its Vidyasagar Scheme. To avail the facility, the defendant No.1 filled up and submitted the requisite application forms with the plaintiff bank on 12.6.2012 in which defendant No.2 father of the defendant No.1 stood and signed as co-obligant. For availing the loan facility, the defendant No.1 executed the following documents on 28.6.2002 :-
(i) Specimen Signature card dated 28.6.2012 with signatures of the defendants alongwith photograph of defendant No.1 on the prescribed form;
(ii) Letter of undertaking regarding loan/advances dated 28.6.2002 executed by the defendants in prescribed form No.NF-721;
(iii) Education loan agreement dated 28.6.2002 executed by the defendants in prescribed form No.NF-440 bank along with required stamp paper;
(iv) Letter of undertaking dated 28.6.12002 executed by the defendants agreeing to deposit scholarship/stipend to be received during the course of education for reduction of outstanding liability in the loan account; and
(v)Letter of undertaking executed by defendant No.2 for paying the quarter interest accrued to the loan account from time to time a as and when debited till the course of defendant No.1 and further to pay the installments and future interest till the loan is cleared in full.
3. It is averred that after considering the request of the defendant No.1 and the defendant No.2 having stood as co-obligant, the plaintiff bank sanctioned the loan and disbursed the same as per the requirements of the defendant No.1 out of which the defendant No.1 availed the total loan of Rs.3,96,000/-. The loan so availed by the defendant No.1 was repayable in 60 monthly installments after one year of completion of the course or after six months of getting employment, which was earlier. It is averred that as per terms of the education loan, it was incumbent upon the defendants to inform the plaintiff bank about completion of the course or of the defendant No.1 having gained employment. It is averred that the defendants did CS 348/2009 Page No. 2/7 not give any such information to the plaintiff. The plaintiff bank reminded the defendant No.2 to furnish the requisite information but to no effect. Finding no other alternative, the plaintiff considering the course of the defendant No.1 having been complete as per the proposal given at the time of sanction of the loan, computed the installments as Rs.11,582/- per month payable by the defendants commencing from 28.2.2006 and conveyed the same to the defendants. It is averred that despite the said intimation, the defendant did not repay the loan amount. The loan account of the defendants became overdue.
4. It is averred that the defendant No.2 approached the plaintiff bank and informed that the defendant No.1 is employed in United Kingdom and also promised to clear the outstanding liability and also acknowledged the liability vide letter dated 26.5.2007 which is the letter of acknowledgment of Debt and security. The defendant No.1 upon his visit to India on 25.3.2009 also acknowledged his liability by executing a letter of acknowledgment of debt and security. The plaintiff bank asked the defendant No.1 to liquidate the outstanding liability of the loan and the defendant No.1 sent posted dated cheques numbering 12 for £ 200 each out of which only six were honoured and the amounts were adjusted towards part payment of their liability.
5. It is averred that since then, the defendants have failed to make any further payment of the outstanding loan amount despite repeated reminders by the bank. In these circumstances, the plaintiff issued legal notice dated 31.10.2009 by Registered AD post/UPC which was duly received by the defendant No.2 who through replied on 1.12.2009 but without any concrete and reliable schedule for clearing the liability.
6. The plaintiff therefore filed the present suit for recovery of Rs.6,97,220/- with pendentelite and future interest at the rate of 13.75% per annum (including 11.75% per annum compoundable with monthly rests and 2% per annum simple over due penal interest) till the date of realization besides cost of the suit.
7. Summons of the suit were issued to the defendants at their address as furnished in the plaint. Before the process issued to the defendants could be served, CS 348/2009 Page No. 3/7 the suit was dismissed for default on 12.1.2010. An application for restoration of the suit was filed by the plaintiff in which notice was issued to the defendants. On 19.4.2010, counsel appeared on behalf of the defendant No.1 and filed separate written statements on behalf of defendant No.1 and defendant No.2. By order dated 14.7.2010m the suit was restored and since the written statement had already been filed, the matter was fixed for 19.7.2010 for admission/denial of documents. On 19.7.2010, the suit was again dismissed for default.
8. Another application for restoration of the suit was filed by the plaintiff. Notice of the application issued to the defendants was received back with the report that defendant No.2 had left the said address after selling off the property. Though the plaintiff provided fresh address but the process issued at the said address also remained unserved with the result that the plaintiff filed an application under Order V Rule 20 CPC for substituted service of the defendants. The said application was allowed vide order dated 24.9.2011 and the defendants were directed to be served by way of publication in the newspaper "The Statesman". Publication was carried out for 8.12.2011. Despite service of the defendants by way of publication, the defendants did not appear and were proceeded exparte vide order dated 8.12.2011. The suit was restored to its original position and since the defendants were proceeded exparte, the matter was fixed for evidence of the plaintiff.
9. Before proceeding further, this Court deems it fit to record its observations regarding the written statements of the defendants which have been filed on 19.4.2010. The same do not bear any verification nor are supported with any affidavit of the defendants and can not be considered to be written statements within the meaning of Order VIII Rule 1 CPC. The same are more in the nature of a letter to the Court. Since the contents of the same are brief, the same are reproduced as under :
(written statement of defendant No.1) "WRITTEN STATEMENT MOST RESPECTFULLY SHOWETH I has availed myself of an education loan of Rs.4 lakh (Rupees four lakh only). After completing my Honours programme in Business studies from CS 348/2009 Page No. 4/7 Sunderland university, UK, I have been working in WALMART,Manchester. Only in 2009 could I get my visa converted into a work permit after spending about 3 lakh rupees.
Now I have been making monthly payment of 2000 GBP, Towards the repayment of the loan. Whenever the cheque was returned, due to some technical reasons, I have been making direct payment either from London or at Delhi.
Now I am in a position to make regular payments and completely repay the amount within the shortest period possible.
I also humbly request to exempt me from personal appearance as I am working in Manchester,UK.
I also understand that it is my bounden duty to repay the loan amount and request to exempt my parents from any liability in this regard.
Humbly praying for favourable orders.
Sd/-
GANESH CHANDRAN"
(written statement of defendant No.2) "WRITTEN STATEMENT MOST RESPECTFULLY SHOWETH The plaintiff bank prayed for restraining me from selling the Property A 106,G1, Dilshad Colony, Delhi till the education loan amount is completely repaid.
In this matter I humbly showeth as under. The said property is already mortgaged to State Bank of Bikaner and Jaipur for about Rs.13 lakh (loan sanction letter appended). As we find it difficult to repay the loan we have decided to sell the property and entered into an agreement for sale with shri Balraj dated 28th July 2009 and extended through agreement dated 25th February, 20190. (copies appended) As per the agreements the buyer is remitting the loan arrears at the SBBJ after which the sale deed will be registered in his or other's name..
As another another lien or claim can not be entertained in the name of the plaintiff bank, in this case Canara Bank.
Hon. Supreme Court has made it clear that guarantor becomes liable only when the borrower is unable to repay the amount due to some extraneous reasons.
Considering all these facts, I humbly pray for favourable orders.
Sd/-
K.P.BALACHANDRAN PILLAI CORPORATE LAWYER, SUPREME COURT"
10. A perusal of the "written statements" of the defendants reveals that they admit CS 348/2009 Page No. 5/7 the loan and also their liability. However, as recorded above, the same are not written statements within the meaning of Order VIII Rule 1 CPC.
11. In order to prove their case, the plaintiff examined Sh.VK Gupta-its manager at Dilshad Garden Branch as PW-1 who deposed by way of affidavit Ex.PW-1/A on the lines of the plaint. The plaintiff bank through this witness PW-1, proved on record the following documents :-
(i) Copy of the Notarized power of attorney in favour of Sh.Roshan Lal who has signed and verified the plaint as Ex.PW-1/1
(ii) Original loan application form dated 12.6.2002 as Ex.PW-1/2
(iii) Original sanction letter dated 28.6.2002 as Ex.PW-1/3
(iv) Original specimen signature card dated 28.6.2002 bearing signatures of defendants No.1 and 2 as Ex.PW-1/4
(v) Original letter of undertaking regarding loan/advances dated 28.6.2002 executed by the defendants in prescribed form NF-721 as Ex.PW-1/5
(vi) Original education loan agreement Ex.NF-440 dated 28.6.2002 along with required stamp paper as Ex.PW-1/6
(vii)Original letter of undertaking dated 28.6.2002 executed by the defendants agreeing to deposit the scholarship/stipend for reduction of the outstanding liability as Ex.PW-1/7.
(viii)Original letter of undertaking by defendant No.2 for paying quarterly interested debited to the loan account from time to time when debited till the course of defendant No.1and to pay future installments and future interest till the loan is cleared as Ex.PW-1/8
(ix) Original letter of undertaking dated 28.6.2002 given by defendant No.2 regarding information of health insurance policy of defendant No.1 in UK as Ex.PW-1/9
(x) Letter of acknowledgment of debt and security dated 26.5.2007 bearing signatures of defendant No.2 as Ex.PW-1/10
(xi) Letter of acknowledgment of debt and security dated 25.3.2009 bearing signatures of defendant No.2 as Ex.PW-1/11
(xii) three dishonoured cheques dated 30.5.2009, 30.6.2009 and 30.10.2006 and dishonour memo dated 122.6.2009, 20.7.2009 and 9.11.2009 Ex.PW-1/13,Ex.PW-1/14 and Ex.PW-1/15 respectively.
(xiii) original letter dated 26.5.2007 of the defendant No.2 acknowledging availing the loan and promise to settle the account as E.PW-1/16
(xiv)copy of the letter dated 19.9.2008 written by the plaintiff to the defendants No.1 and defendant No.2 as Ex.PW-1/17
(xv) Original letter received from defendant No.1 thus promising to clear the outstanding liability as Ex.PW-1/18.
(xvi)Print out of the e-mails sent by the plaintiff to the defendant No.1 on
12.1.1009, 24.6.2009 and 30.7.2009 (mark X collectively) CS 348/2009 Page No. 6/7 (xvii)Copy of the legal notice dated 31.10.2009 of the plaintiff to the defendants as Ex.PW-1/19 (xviii) Speed post receipts as Ex.PW-1/120 (xix) UPC receipt as Ex.PW-1/21 (xx) AD card duly received by defendant No.2 as Ex.PW-1/22 (xxi) Reply sent by the defendant No.2 to the plaintiff bank as Ex.PW-1/23 (xxii) Certified coy of the statement of account as Ex.PW-1/24.
12. PW-1 Sh.VK Gupta was not subject to any cross examination since the defendants are exparte. The defendants have not even filed any written statement to the suit. The version of the plaintiff in the plaint and evidence of PW-1 has gone unrebutted and unchallenged. I do not see any reason as to why suit of the plaintiff can not be decreed.
13. The plaintiff has prayed for grant of interest pendentelite at the rate of 13.75% per annum (including 11.75% per annum compoundable with monthly rests and 2% per annum simple over due penal interest). In the opinion of this Court, claim for compound interest with monthly rests is highly excessive and the court is inclined to grant simple interest to the plaintiff at the rate of 13.75 per cent per annum pendentelite.
14. For the reasons recorded above, the suit of the plaintiff is decreed and the plaintiff is granted decree for recovery of Rs.6,97,220/- along with simple interest at the rate of 13.75% per annum from the date of filing of the suit till the date of realization. Plaintiff shall be also entitled to costs of the suit. Decree sheet be drawn accordingly.
15. File be consigned to the Record Room.
Dictated to the steno and announced in the Open Court today i.e. 6.2.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS 348/2009 Page No. 7/7