Delhi District Court
State Bank Of India vs Sh. Ashok Parcha on 17 May, 2024
IN THE COURT OF SHRI ARVIND KUMAR:
DISTRICT JUDGE (COMMERCIAL COURT-01)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 105/2022
State Bank of India
Shop No. 8 & 9, West Market
Nizamuddin, New Delhi - 110013 ................Plaintiff
Versus
1. Shri Ashok Parcha (now deceased)
S/o Shri Brahma Jeet
Through his Legal Heirs Namely:-
(a) Smt. Chanderwati
W/o Late Shri Ashok Parcha
(b) Shri Arjun
(c) Shri Shivam Parcha
Both S/o Late Shri Ashok Parcha
(d) Ms. Nisha
D/o Late Shri Ashok Parcha
All R/o :-
H.No.6/330, Trilokpuri
Delhi - 110091 ................Defendant
Date of institution : 16.04.2022
Date of reserving judgment : 14.05.2024
Date of judgment : 17.05.2024
JUDGMENT:
1. The plaintiff Bank has filed the present suit for recovery of Rs.5,44,025/- against the defendants.
2. The plaintiff Bank is a body corporate constituted under the State Bank of India Act 1955 having its Central Office at 11, Madam Cama Road, Nariman Point, Bombay and one of its Branch at West Market, Nizamuddin, New Delhi - 110013 and Local Head/Zonal office at Parliament Street, New Delhi. The CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 1 of 12 present suit has been filed through its Principal Officer/Manager Shri Ankesh Sinha, who has been authorized to sign, verify and file the present suit in terms of General Regulation framed by SBI.
3. In brief, the facts as averred in the plaint are that defendant Shri Ashok Parcha (now deceased) vide his loan application dated 28.06.2018, approached and requested the plaintiff bank for grant of personal loan of Rs.6,00,000/- and looking after the viability and recommendations of the project, plaintiff bank sanctioned and disbursed the said loan to the defendant on 28.06.2018. It is averred that in consideration of the aforesaid loan facility, defendant executed various documents such as Personal loan agreement, arrangement letter, SI report and Operation letter in favour of plaintiff bank. It is averred that defendant agreed to repay the principal loan amount with interest thereon through deduction from salary and deposit with the bank, regularly and punctually.
4. It is further averred that borrower Late Shri Ashok Parcha left behind huge dues receivable from his employer MCD besides immovable property bearing no. 6/330, Trilokpuri, Delhi which is presently occupied by the defendant/legal heirs which devolved upon him after the death of his mother Late Smt. Leela as all other legal heirs relinquished their rights pertaining to share in the said property, in his favour. The electricity bill also stands in the name of Late Ashok Parcha who disclosed that he had the capacity to repay the Xpress Credit loan availed by him for development of the said house property and acquisition of other movable assets.
CS (Comm) No. 105/2022State Bank of India vs Ashok Parcha (through LRs) 2 of 12
5. Further, it is averred that the loan amount was credited in account no. 3777870171 on 28.06.18 and he has been making repayment of installments of Rs.13,600/- besides last credit of Rs.33,487/- dated 04.10.2019 and as such there is no question of limitation and non-liability to repay bank's dues. It is further averred that as per salary slip of May 2018, he was getting Rs.29,790/- as monthly salary out of which he was paying the agreed installments.
6. It is further averred that the said account was running irregular and the plaintiff bank served a letter dated 21.02.2020 upon the defendant but the same was not replied or complied with by the defendant. The account of defendant was classified as NPA on 28.07.2019.
7. It is averred that defendant lastly paid a sum of Rs.13,600/- on 05.04.19 in his loan account. Thereafter, plaintiff sent legal notice dated 20.11.2020 to defendant who was served through his son Mr. Arjun but no reply or compliance of the said notice was made. Mr. Arjun vide his letter dated 20.05.2019 informed the plaintiff bank about the death of his father/defendant no. 1 on 06.04.2019 and submitted death certificate dated 16.05.2019.
8. The plaintiff bank also filed an application under Section 12A of the Commercial Courts Act before Mediation Centre, East District for settlement of dispute with the defendant but defendant did not participate in those proceedings and hence, a non-starter report dated 26.03.2022 was issued.
9. Vide the present suit, the plaintiff Bank has claimed CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 3 of 12 an amount of Rs.5,44,025/- from the defendants jointly and severally alongwith pendente lite and future interest @ 12.25% per annum from the date of filing the suit till receipt of entire payment.
10. The defendant filed written statement taking preliminary objection that the present suit is bad for non-joinder and mis-joinder of necessary parties as Shri Ashok Parcha had expired on 06.04.2019 leaving behind his legal heirs namely Smt. Chander Wati (wife), Shri Arjun (son), Shri Shivam Parcha (son) and Ms. Nisha (daughter).
11. It is alleged that at the time of alleged loan, Late Shri Ashok Parcha was employed with MCD as a safai karamchari who had expired on 06.04.2019 intestate having no movable and immovable assets in his name except some household articles. It is alleged that the said plot bearing no. 6/330, Trilokpuri, Delhi - 110091 was allotted to Smt. Leela, mother of Late Shri Ashok Parcha and after death of Smt. Leela, it devolved upon her eight legal heirs i.e. three sons namely Rambir Parcha, Krishan Parcha, Anil Parcha & Jitender Parcha and three daughters namely Smt. Saroj, Smt. Rajesh and Smt. Lokesh. Shri Ashok Parcha, at the time of death, was living in one portion of the said house as a licensee and had no other movable or immovable asset in Delhi.
12. It is alleged that the documents were got signed in blank from Late Shri Ashok Parcha and the documents were subsequently filled up by bank officials. Further it is alleged that defendant no. 1(b) Shri Arjun has no liability to pay any amount. It is further alleged that the present suit is without any cause of action as the present defendant had no liability to pay any amount, if any, due to Ashok Parcha or any other person in any manner as no CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 4 of 12 amount of the said loan has been used by the answering defendant. Further, it is alleged that the present suit is not filed by the competent and authorized person of the bank as the alleged signatory has no power to sign and verify the plaint.
13. The defendants no. 1(a), 1(c) and 1(d) did not file written statement and they were proceeded exparte vide order dated 12.10.2023.
14. The plaintiff bank filed replication to the written statement of the defendant reiterating and reaffirming the contents of the plaint and countering the allegations levelled in the written statement.
15. From the pleadings of parties, following issues were framed on 01.02.2024:-
ISSUES
1. Whether the plaintiff is entitled for a decree against the defendants in the sum of Rs.5,44,025/- alongwith interest if any and if yes at what rate and for which period? OPP
2. Whether the present suit is bad for non-joinder of necessary parties? OPD
3. Relief
16. At the trial, the plaintiff examined Shri Ankesh Sinha
- Branch Manager/AR of the plaintiff bank as PW1. He deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and also tendered following documents in evidence:-
General Regulation framed by SBI, Ex.PW-1/1. Gazette Notification dated 02.05.1987, Ex.PW-1/2. Loan application dated 28.06.2018, Ex.PW-1/3 (colly Page 17-22).CS (Comm) No. 105/2022
State Bank of India vs Ashok Parcha (through LRs) 5 of 12 Non-Starter Report dated 26.03.2022, Ex.PW-1/4. Sanction Letter dated 28.06.2018, Ex.PW-1/5. Arrangement letter dated 28.06.2018, Ex.PW-1/6. Personal Loan Agreement dated 28.06.2018, Ex.PW-1/7. Operation Letter dated 28.06.2018, Ex.PW-1/8. SI Report dated 28.06.2018, Ex.PW-1/9. Legal Notice dated 20.11.2020, Ex.PW-1/10 (colly Page no. 44-46).
Letter dated 20.05.2019, Ex.PW-1/11 (colly Page 42-43). Discharge Quote, Ex.PW-1/12.
Statement of Account for the period 28.06.2018 to 11.12.2019, Ex.PW-1/13 (colly Page 48-49).
Certificate under Banker's Book Evidence Act and u/s 65B Indian Evidence Act, Ex.PW-1/14 (colly Page 51-54). Last Credit Voucher of Rs.13,600/- dated 05.04.2019, Ex.PW-1/15.
17. The defendant no. 1(b) examined himself as DW1 who tendered his affidavit in evidence as Ex. DW1/A. He was cross- examined by Ld. Counsel for the plaintiff.
18. I have heard Shri Jawahar Chawla - Ld. Counsel for the plaintiff and Shri Jayant Nandan - Ld. Counsel for the defendant and have also gone through the records of the case and the judgments cited by Ld. Counsel for the defendant.
My issue-wise findings are as under:-
ISSUE NO. 1:-
19. PW1 deposed that defendant Late Ashok Parcha vide loan application dated 28.06.18 approached the plaintiff bank for grant of personal loan and after processing the loan application, plaintiff bank sanctioned personal loan of Rs.6 lacs and executed sanction letter, arrangement letter, personal loan agreement, CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 6 of 12 operation letter and SI Report in favour of plaintiff bank. PW1 proved the loan application, Ex.PW1/4, sanction letter, Ex.PW1/5, Arrangement letter, Ex.PW1/6, Personal loan agreement Ex.PW1/7, Operation letter, Ex.PW1/8 and SI Report Ex.PW1/9.
20. PW1 further deposed that vide declaration dated 28.06.18, defendant had stated and authorized the plaintiff bank to credit all sums received or standing to his credit declaring that he had an amount of Rs.2 lac in PF/PPF Account besides cash of gold of Rs.50,000/- but after his demise, the entire funds to his credit outstanding in the PF/PPF account, other savings etc. have been pocketed by the defendant/LRs of deceased borrower and as such they are liable to pay the said amount. PW1 also deposed that legal notice dated 20.11.2020 was sent to the defendant's son Mr. Arjun who informed the plaintiff bank about the death of his father through his letter dated 20.05.2019. He proved the said legal notice, Ex.PW1/10 and the letter, Ex.PW1/11.
21. He further proved the discharge quote, Ex.PW1/12, the statement of account for the period 20.06.18 to 11.12.2019 as Ex.PW1/13 alongwith certificate under Banker's Book Evidence Act and Under Section 65B of Indian Evidence Act as Ex.PW1/14 (colly) and the last credit voucher of Rs.13,600/- dated 05.04.2019, Ex.PW1/15. He further deposed that defendant agreed to pay the penal interest in the event of failure to adhere to the financial discipline of the bank.
22. PW1 was cross-examined by the Ld. Counsel for the defendant.
23. During cross examination, PW1 stated that he has not filed any authority letter authorizing him to file the present suit but CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 7 of 12 volunteered that being a Branch Head, he is competent to file the present matter as per Gazette Notification filed by him on record. He further stated that there was no guarantor in the said loan agreement as the personal loan is given without any guarantor. PW1 further stated that the arrangement letter signed by both the parties is provided to the customer and one copy is retained by the bank.
24. On the other hand, the defendant no. 1(b) examined himself as DW1 and reiterated the facts as stated in his written statement. He deposed that the loan was taken by his deceased father and he has not left behind any estate movable or immovable and as such he has not inherited any asset after his death. He further deposed that he has no liability to pay/repay any alleged debt of his deceased father. DW1 stated in his cross examination that his father Late Ashok Parcha was an employee in MCD Shahdara zone on contract basis. He admitted that he had submitted the letter Ex.PW1/11 signed by him at Point A containing his correct address at Point B and his mobile number at Point D. He stated that he did not write the said letter and he got the said letter written by one Mr. Rambir who is his neighbour. He also admitted the signatures and photograph of his father on Ex.PW1/3 (colly).
25. DW1 further stated that he was residing with his deceased father till the time he was alive and further stated that the address on the copy of electricity bill dated 05.06.18 pertains to his father. He stated that he had signed at Point A and B on his affidavit in evidence Ex.DW1/A after fully understanding the contents thereof as well as on the written statement dated 22.07.2022. He stated that the affidavit of admission-denial of documents contained his correct address i.e. 6/330, Trilokpuri, Delhi. He also stated that the said house is a three storeyed house. He further stated that he did not have any address proof of his present residential address nor CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 8 of 12 he had any document to show the ownership of Smt. Leelawati of the aforesaid address. He denied to have inherited any property from his father or he signed for receiving any dues of his father from MCD.
26. It is clear from the testimony of PW1 and the documents on record that t he plaintiff bank has duly proved that Late Shri Ashok Parcha had availed and utilized the loan sanctioned by plaintiff bank. Defendant no. 1(b) has admitted signatures of his deceased father on different documents such as loan application and accompanying documents, Ex.PW1/3(colly), sanction letter dated 28.06.2018, Ex.PW-1/5, Arrangement letter dated 28.06.2018, Ex.PW-1/6, Personal Loan Agreement dated 28.06.2018, Ex.PW-1/7, Operation Letter dated 28.06.2018, Ex.PW-1/8 and SI Report dated 28.06.2018, Ex.PW-1/9. The statement of account, Ex.PW1/13 alongwith certificate under Section 2A of Banker's Book Evidence Act and under Section 65B of the Indian Evidence Act, Ex.PW1/14 has been proved by plaintiff, as per which an amount of Rs.5,33,259/- is due and payable by defendant as on 11.12.2020. Defendant has failed to file any document on record to show that he had paid the due amount to the bank.
27. Ld. Counsel for the defendant contended that the defendant no. 1(b) did not inherit any property from the deceased Shri Ashok Parcha who died on 06.04.19 intestate having no movable or immovable assets of any nature whatsoever and the deceased was living in house no. 6/330, Trilokpuri, Delhi as a licensee and the said plot was allotted to Smt. Leela, mother of Late Shri Ashok Parcha who expired in 2007 leaving behind four CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 9 of 12 sons namely Rambir Parcha, Krishan Parcha, Anil Parcha & Jitender Parcha besides Late Ashok Parcha and three daughters namely Smt. Saroj, Smt. Rajesh and Smt. Lokesh. As such, the estate of Smt. Leela devolved upon her eight heirs and LRs. It is submitted that defendant no. 1(b) Shri Arjun Parcha is not liable to pay any amount.
28. On the other hand Ld. Counsel for bank contended that the LRs of Shri Ashok Parcha has inherited movable and immovable assets of deceased Ashok Parcha. It is also submitted that house no. 6/330, Trilokpuri, Delhi was built up by the deceased from the loan amount. It is also submitted that the LRs of the deceased had also got the terminal benefits of deceased Shri Ashok Parcha and thus, are liable for the due amount.
29. I have gone through the material on record.
30. In the judgment delivered in Sanjeev Jain vs Rajni Dhingra & Ors. AIRONLINE 2018 del 2732, Hon'ble High Court of Delhi, it was held as under:-
12. However, a perusal of the Division Bench's judgment of in Bank of India (supra) and Sarla Devi DB (supra) leave no matter of doubt that Order XXXVII suit is maintainable against the LRs and the right to sue survives.
13.The relevant paras of Bank of India (supra) are set out herein below:
"7. Order XXXVII does not exclude from its purview a suit where the heirs and legal representatives of a deceased are party defendants. Nor is there any protection under the Civil Procedure Code to the heirs and legal representatives of a deceased defendant from a decree being passed against them, provided of course, that the right to sue them survives. The protection which Section 52 of the Civil Procedure Code gives to the heirs and legal representatives of a defendant is a protection against the enforcement of a decree against them in execution. Under Section 52, where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of such property. The decree can be executed to the extent of the property of the deceased in his hands. This is a protection which is granted at the stage of execution. Hence even in a case where a CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 10 of 12 decree is passed against such an heir or legal representative under Order XXXVII of the Civil Procedure Code, the decree can be executed only to the extent of the estate of the deceased coming to his hands. The apprehension of the learned judge in the case of Rajesh Steel Centre (supra) is, therefore, unfounded.
8. In the case of Lallu Bhagvan v. Tribjuvan Motiram (1889) I.L.R. 13 Bom. 633 (D.B.), a Division Bench of this Court held that the decree against the legal representatives of a deceased debtor can be passed even if they have not inherited any property. If they have not inherited any property, the only result is that the decree can not be executed against them. This is a matter to be decided at the stage of execution. It does not affect the right of a court to pass a decree. This decision has been followed in the case of Ranjitsingh v. Narmadi (1931) A.I.R. Nagpur 173 where it is held that where an heir of a debtor is sued it is not open to him to raise the plea in course of the suit that he does not hold the assets of the deceased debtor.
The plea is confined to execution only."
9. In our view, therefore, the difficulty expressed by the learned single Judge in the case of Rajesh Steel Centre v. Rashmi K. Agarwal (supra) is misconceived. A summary Suit can be filed against an heir and legal representative of a deceased defendant and the provisions of Order XXXVII apply in full to such a suit also. The decree however, can be executed only to the extent of the estate of the deceased in the hands of the judgment debtor. We therefore agree with Variava J. that the summons for Judgment against the heirs of defendant No.3 is maintainable."
31. Therefore, it is clear that all the legal heirs can be impleaded as party in the suit for recovery. Further, so far as the property inherited by the LRs of the deceased are concerned, the bank has not led any documentary evidence on this point. The plaintiff bank has stated that LRs have inherited property and terminal benefits of deceased while defendant no. 1(b) denied all these facts. Thus, this court need not dwell into the issue as to what immovable or movable property have been inherited by the LRs of the deceased.
Thus, it is clear that plaintiff is entitled to an amount of Rs.5,44,025/- payable by the defendants alongwith interest. The issue no. 1 is accordingly decided in favour of plaintiff bank and against the defendants.
ISSUE NO. 2 CS (Comm) No. 105/2022State Bank of India vs Ashok Parcha (through LRs) 11 of 12
32. An objection has been taken in the WS that suit is bad for non-joinder and mis-joinder of necessary parties as all the LRs of the deceased have not been made parties. Vide order dated 24.02.2023, the application under Order 22 Rule 4 CPC of the plaintiff was allowed whereby all the LRs of the deceased Shri Ashok Parcha have been impleaded as party. Thus this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO. 3 / RELIEF
33. The plaintiff has filed the present suit on 16.04.2022. Thus, the suit was filed within the period of limitation. This Court also has the pecuniary as well as the territorial jurisdiction to try and dispose of the present suit.
34. In view of the aforesaid, the suit of the plaintiff Bank is accordingly decreed in its favour and it is held that the defendants No. 1(a), 1(b), 1(c) and 1(d) are liable to pay to the plaintiff Bank a sum of Rs.5,44,025/- alongwith interest @ 12.25% per annum from the date of filing the suit, till realization of the said amount. Costs of the suit are also awarded to the plaintiff. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 17th day of May 2024 (ARVIND KUMAR) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 105/2022 State Bank of India vs Ashok Parcha (through LRs) 12 of 12