Delhi District Court
Office At: Plot No.1 & 2 vs Mr. Dhunkesh Karrdo on 27 January, 2023
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (Comm.) No. 281/22
UCO Bank
Office At: Plot No.1 & 2,
Periyar Center Institutional Area,
Jasola, New Delhi-110025. ......Plaintiff
Vs.
Mr. Dhunkesh Karrdo
S/o Mr. Madan Lal Karrdo
Proprietor of M/s Duggu Caterors & Decorators
1580-81/13, Ground Floor
Govindpuri, Kalkaji
New Delhi-110 019
Mobile No.:9313246000, 7011901498
Email Id.:[email protected],
[email protected], ....Defendant
Date of Institution : 14.03.2022
Date when final arguments heard : 24.01.2023
Date of Judgment : 27.01.2023
Appearance : Sh. Pratap Chandra Rana, Ld. Counsel for plaintiff.
Sh. Mukesh Birla, Ld. Counsel for the defendant.
Defense of defendant struck off vide order dated
09.11.2022.
Judgment:
1.The Plaintiff Bank is a body of corporate Constituted under the CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 1 of 8 Banking Companies (Acquisition and Transfer of Undertaking), Act 1970, having its Head Office at 10 B.T.M. Sarani, in the town of Kolkata and amongst other branches at Plot No.1 & 2, Periyar Center Institutional Area, Jasola, New Delhi-110025. It is averred in the plaint that defendant approached the plaintiff bank on January, 2019 for granting of Rs.9,90,000/- as cash credit facility. The Defendant assured the Plaintiff to repay the entire loan with interest thereto regularly. Thereafter, the plaintiff granted, sanctioned and disbursed the sanctioned amount to the Defendant. Plaintiff bank considered the request and agreed to sanction a sum of Rs.9,90,000/- (Rupees Nine Lakhs Ninety Thousand Only) as Cash Credit Limit as Cash Credit Limit Loan vide Sanction letter dated 29.01.2019 subject to execution of necessary loan documents in favour of plaintiff bank. The Defendant accepted all terms and conditions of the sanction letter and undertook to repay the same with its consonance. The Defendant also executed Composite Deed of Hypothecation, demand promissory note dated 29.01.2019 in favour of the Plaintiff Bank and the Defendant agreed to repay the said loan as per conditions of the said loan document. The Defendant further agreed that he would pay rate of interest @ 8.85% per annum or at such other rate as may be notified to the Defendants by the Plaintiff Bank. The Defendant also signed other various documents in terms of the credit facility extended to him.
2. After that Plaintiff Bank on scrutiny of loaning documents disbursed sum of Rs.9,90,000/- (Rupees Nine Lakhs Ninety Thousand Only) in account of the Defendant which was duly availed by the Defendant during course of his business and the same was utilized by the Defendant as per his requirement, however, after taking entire loan amount the Defendant has miserably failed to adhere the financial discipline as required under the CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 2 of 8 loan documents and did not repay the same as per the terms and condition of the said loan. The Defendant was a habitual defaulter from the beginning and started discontinue paying the outstanding amount of the Plaintiff Bank. The Plaintiff Bank as per Special Scheme of COVID-19 sanctioned and disbursed a sum of Rs. 43,179 as FITL to the Defendant which was duly utilized by the Defendant during his business.
3. Plaintiff bank requested the defendant time and again to repay the outstanding amount of the Plaintiff Bank and was reminded a number of times but the Defendant did not pay any heed to the requests and defendant has been given sufficient time to regularize the loan Account but failed to do so. therefore, the Plaintiff Bank declared Defendant's account as NPA on 31.3.2021.
4. Defendant was served a notice dated 24.08.2021 upon him for requesting to repay the entire outstanding amount including principal and interest thereon and the loan was recalled. The notice was duly received by the Defendants and did not pay any heed to it. The Defendant vide Legal notice dated 06.02.2021 in reply to demand notices raised frivolous, false allegation against plaintiff through admitted loan facilities.
5. Plaintiff bank has been maintaining a separate account in the name of the Defendant and every entry debit and credit has been very effectively entered to the account of the defendant as per rules and practice norms of the banking business. The account of the Defendant is showing that sum of Rs. 11,68,799.59 ( Rs. Eleven lakhs Sixty Eight thousand Seven hundred Ninety Nine and fifty Nine paise only ) remained unpaid by the defendant which is liable to be paid with interest and cost incurred as per rules and terms of loaning documents. The account of the defendant has been declared NPA, therefore, the interest accrued thereafter has not been CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 3 of 8 debited in the account and the same has been recorded separately as Memoranda Interest. The Plaintiff is not relinquishing its rights to claim interest so recorded separately as unapplied interest.
6. Despite the aforesaid legal notice of the plaintiff Bank to the defendant, the Plaintiff Bank has not received payment from the defendant. The defendant withheld the legitimate money of the plaintiff bank that need to be repaid as per terms of the loaning documents. The plaintiff before filing of the present suit initiated pre institution mediation under section 12 A of the CC Act however, the defendant not appeared in those proceedings and a non starter report dated 15.11.2021 was issued by South East District Legal Aid Service. The plaintiff thereafter filed present suit.
7. The plaintiff, in the prayer in the plaint, has prayed for:
(i) Pass a decree in favour of the Plaintiff and against the defendant directing the Defendant to pay to the Plaintiff, a sum of Rs. 11,68,799.59 ( Rs. Eleven lakhs Sixty Eight housand Seven hundred Ninety Nine and fifty Nine paise only).
(ii) Pass an award interest pendent elite rates and future interest @ 8.85% per annum till realization of the decreetal amount in favour of the Plaintiff and as against the defendant.
(iii) Pass an award entire cost of the suit in favour of the plaintiff and against the defendant.
(iv) Attached the Hypothecated goods of the defendant before the Judgement.
(v) pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
8. The present suit was filed on 14.03.2022. Defendant was served on 01.06.2022. defendant appeared, however, not filed the WS even after the maximum stipulated period 120 days, therefore, defense of defendant CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 4 of 8 struck of on 09.11.2022. During proceedings also the matter was referred to mediation center, however, the mediation failed. The plaintiff in the meanwhile lead PE and examined PW1 defendant also participated in the final arguments which concluded on 24.01.2023.
9. The plaintiff in evidence examined PW1, Ms. Ashima Maini, AR of plaintiff bank :
1. Power of delegation in favour of the Branch Ex. PW-1/1 Manager (OSR)
2. Loan Application dated 04.01.2019 Ex. PW-1/2 (OSR)
3. Sanction Letter dated 29.01.2019 Ex. PW-1/3 (OSR)
4. Composite deed of hypothecation and demand Ex. PW-1/4 promissory note A-1 and A-47 dated 29.01.2019 (OSR) and Ex.
PW-1/5 (OSR) (Colly)
5. Demand notice dated 24.08.2021 Ex. PW-1/6 (OSR) 6 Legal notice dated 06.02.2021 Ex. PW-1/7 (OSR)
7. Print out of the statement of account in the name Ex. PW-1/8 of the defendant supported with the certificate under provision of Banker Books of Evidence Act
10. I have heard learned counsel for plaintiff and counsel for the defendants and perused record.
11. It has been submitted on behalf of plaintiff that defendant has availed loan of Rs.9,90,000/- (Rupees Nine Lakhs Ninety Thousand Only). However, defaulting in repayment of the said loan and despite notice received, the defendants not paid full and final payment, hence, plaintiff CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 5 of 8 filed the present suit.
12. The cause of action first arose in when the defendant approached the plaintiff bank with the Loan Application and requested to grant a Cash Credit loan in his favour. The cause of action further arose when the plaintiff bank sanctioned the loan in the name of the defendant and defendant executed loaning document on 29.01.2019. Further arose when the plaintiff disbursed the loan amount to the Defendant and defendant availed the sum of the loan transferred and started repaying. The cause of action further arose when plaintiff issued various notice/reminders to the defendant but defendant not replied, thereafter, plaintiff bank declared the defendant's account NPA on 31.03.2021 and plaintiff bank sent notice dated 24.08.2021 and in response, the defendants neither complied nor answered. The cause of action still subsisting and continues to accrue, as the Defendants have not made any payment towards its outstanding dues to the Plaintiff Bank.
13. The defendant despite opportunity not filed his written statement thereafter vide order 09.11.2022, his defense was struck off. Plaintiff examined PW-1 but defendant not appeared to cross-examine PW-1, however, participated in the final arguments.
14. The dispute between both the sides is commercial in nature and is covered within the ambit of section 2 (1)(c)(i) of the Commercial Courts Act. The Hon'ble Supreme Court in the case reported as Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP 2019 SCC Online SC 1311 held that provisions of the Commercial Courts Act, 2015 (hereinafter referred to as the CC Act) are to be strictly followed and adhered to. It means no liberal interpretation of the provisions has to be given and it should be read with narrow sense. It was observed as follows:
CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 6 of 8 "The object and purpose of the establishment of Commercial Courts, Commercial Divisions and Commercial Appellate Divisions of the High Court is to ensure that the cases involved in commercial disputes are disposed of expeditiously, fairly and at a reasonable cost to litigants. Keeping in view the object and purpose of the establishment of the Commercial Courts and fast tracking procedure provided under the Act, the statutory provisions of the Act and the words incorporated thereon are to be meaningfully interpreted for quick disposal of commercial litigations so as to benefit the litigants especially those who are engaged in trade and commerce which in turn will further economic growth of the country."
15. This Court has the territorial jurisdiction over the present case in view of the contents of paragraph number 15 of the plaint. This Court has the pecuniary jurisdiction over the present case, which is for recovery of Rs. 11,68,799.59 ( Rs. Eleven lakhs Sixty Eight housand Seven hundred Ninety Nine and fifty Nine paise only) along with interest pendent elite rates and future interest @ 8.85 per annum till the date of realization as per the specified value, as defined in section 2 (1) (c) of the CC Act and within the jurisdiction of this Court as per Section 6 of the CC Act.
16. The testimony of PW-1 remained uncontroverted, unrebutted and unchallenged. The defendant appeared before this court and participated in the proceedings, however, not laid any defense nor able to impeach the testimony of PW-1 and the documents exhibited by the plaintiff. There is no reason to disbelieve the testimony of the PW-1 and the exhibited documents i.e. power of delegation in favour of the branch manager, loan application, sanction letter, composite deed of hypothecation and demand promissory note A-1 and A-47, demand notice, legal notice, print out of the CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 7 of 8 statement of account in the name of defendant supported with the certificate under provision of Banker's Books of Evidence Act filed along the plaint and the statement of truth appear to be of an unimpeachable character. This appears to be a clear case of negligence and inaction on the part of the defendants.
17. The case of the plaintiff was filed on 14.03.2022 on the basis of documents executed by defendants on 29.01.2019. Plaintiff bank also sanctioned and disbursed sum of Rs. 43,179/- as per special scheme of Covid-19 as FITL to the defendant and the same is utilized by the defendant. Pre-institution mediation proceedings instituted against the defendant on 09.09.2021, however, defendant not appeared and on 15.11.2021 non starter report was issued by the competent authority. The case of the plaintiff is also filed within the limitation.
18. Therefore, in view of the foregoing discussion, the suit of the plaintiff is hereby decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to recover from the defendant an amount of Rs. 11,68,799.59 ( Rs. Eleven lakhs Sixty Eight housand Seven hundred Ninety Nine and fifty Nine Paise only) along with pendent lite and future interest @ 8.85% per annum along with cost from the date of filing the suit till realization the entire amount.
19. Decree sheet be drawn accordingly and file be consigned to Record Room after due compliance.
Announce in the open court on 27th January, 2023 (Ajay Kumar Jain) District Judge(Commercial Courts- 03), SE/Saket Courts/Delhi CS (Comm) 281/22 UCO Bank Vs. Dhunkesh Karrdo pg. 8 of 8