Delhi District Court
Indian Bank vs Shamim Ahmed on 6 April, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.633/02.
Indian Bank
13, Community Centre,
Zamrudpur,Greater Kailash-I,
New Delhi-110048. .....................Plaintiff
Vs.
Shamim Ahmed,
S/o. Late Sh.Mohd. Yusuf,
3938 F, Urdu Bazar,
Jama Masjid,
New Delhi-110006. ................Defendant
Date of institution : 04.06.2002.
Date of reservation : 08.03.2011.
Date of pronouncement : 06.04.2011.
JUDGMENT
This is a mortgage suit u/o 34 CPC for the recovery of Rs. 1,80,778.23 besides pendente lite & future interest & costs of the suit as filed by the plaintiff against the defendant.
In brief, the facts of present case as made out in the plaint are that plaintiff bank is a body corporate constituted under the Banking Companies(Acquisition and Transfer of Undertakings) Act No.V of 1970 and may sue and be sued in its name. Sh.P.K.Chopra is Chief Manager and Principal Officer of the said branch of plaintiff bank and holds GPA for and on behalf of plaintiff bank, thereby, he is fully empowered and Suit No.633/02 page 1 of page 10 authorised to institute present suit. It is the case of the plaintiff that the defendant approached the plaintiff bank for grant of loan for the purpose of purchase of new DCM Toyota and plaintiff bank considered the request of the defendant and granted a term loan of Rs.1,48,000.00 on 12.12.87 to the defendant against hypothication of the said vehicle bearing registration no.DBL 8567 and the amount of aforesaid loan was to be repaid in 48 monthly installments. It is stated that the defendant executed demand promissory note dated 12.12.1987 for Rs.1.48 lac and an agreement for hypothication of motor vehicle for valuable consideration in favour of the plaintiff bank and further with a view to secure the aforesaid loan amount, the defendant mortgaged his immovable property i.e. 1/4th share in the property bearing municipal no.2621, 2620-B, 2622,2623,2633 and 2634, ward no.9, Churiwalay, Delhi-06 by depositing title deeds of the said property and same was confirmed in writing. The defendant had agreed to pay interest @12.5% per annum with quarterly rests and it was also agreed and understood that as and when the interest rate is increased and decreased, as per guidelines/directions of RBI, the defendant would be liable to pay interest at the prescribed rates and at the time of filing the suit, the defendant is liable to pay interest @14% per annum with monthly rest and also liable to pay additional penal interest @2% per annum in case of delay or default. It is stated that in as much as transaction between the defendant and the plaintiff bank was commercial connected with the trade and business of the defendant, the defendant bank is entitled to the interest at the rate mentioned till realisation. It is further stated that defendant by admitting and acknowledging his liability executed various letter of acknowledgment of debt from time to time i.e.on 03.10.1990, 15.07.1993, 11.06.1996, 16.11.1998 and 30.10.2000 for amount mentioned therein. It Suit No.633/02 page 2 of page 10 is further case of the plaintiff that an amount of Rs.1,80,778.23 including stipulated interest charged upto 02.06.2002 is due and outstanding from the defendant to the plaintiff bank as on date of filing of present suit. Hence, the present suit for a decree for a recovery of Rs.1,80,778.23 alongwith pendente lite and future interest from the date of suit till realisation @16% per annum with monthly rest and for a preliminary decree against defendant u/o 34 of CPC for sale of mortgaged property and for sale of hypotheticated vehicle bearing registration no.DBL 8567 to be adjusted against the decreetal amount, is filed.
Defendant contested the present suit by filing detailed written statement, while taking preliminary objections that suit of the plaintiff is not maintainable in the present form as drafted as there is no cause of action for filing the present suit; the proper court fee has not been paid by the plaintiff; limitation period has been crossed.
On merits, the contents of the plaint have been denied, while submitting that limitation period has been crossed and the defendant is not liable to pay any amount and it is prayed that suit of the plaintiff be dismissed with costs.
From the pleadings of the parties following issues were framed vide order dated 21.04.2003 :-
1. Whether the suit is not maintainable in the present form as alleged in WS ? OPD.
2. Whether proper court fees has been paid by plaintiff ? OPP.
3. Whether suit has been filed within limitation period ? OPP.
4. Whether plaintiff is entitled to the suit amount ? If so, to what extent ? OPP.
5. Whether plaintiff is entitled for interest ? If so, at what rate and Suit No.633/02 page 3 of page 10 for which period ? OPP.
6. Relief.
In support of its case, plaintiff examined Sh.Virender Kumar, Clerk, Indian Bank, Pragati House, Nehru Place, New Delhi-110019 as PW-1, Sh.P.R.S. Vasan, Asstt. Manager, Indian Bank, 13/36, Arya Samaj Road, Karol Bagh, New Delhi-110005 as PW-2 and Sh.Bhim Nath, Manager, Indian Bank, G-6, South Extension Part-I, New Delhi-110049 as PW-3. On the other hand, defendant examined himself as DW-1.
I have heard ld. counsel for parties as well as perused the material placed on record. My issue wise findings are as under:
Issue no.1.
The onus to prove this issue was upon the defendant. The defendant took the preliminary objection in the written statement that the present suit is not maintainable as there is no cause of action for filing the present suit. The case of the plaintiff is that a term loan of Rs.1,48,000/- was granted to the defendant on 12.12.1987 against hypothication of vehicle bearing no.DBL8567 and defendant executed various documents and with a view to secure the aforesaid loan amount, the defendant mortgaged his immovable property by depositing title deeds of the said property. In his cross examination defendant i.e. DW-1 confirmed that he had availed loan from Indian Bank for the purchase of vehicle i.e. DCM Toyota in the year 1987. Cause of action is bundle of facts on the basis of which, a party forms, its claim/legal right. Ld. counsel for defendant failed to show how the present suit is without any cause of action. Therefore, this issue is decided in favour of plaintiff and against the defendant. Issue no.2.
The onus to prove this issue was upon the plaintiff. The plaintiff Suit No.633/02 page 4 of page 10 filed the present suit for recovery of Rs.1,80,778.23 u/o 34 CPC besides pendente lite and future interest and paid the requisite court fee of Rs. 4,150/- on the suit amount. Plaintiff has paid the appropriate advoleram court fee upon the suit amount. Accordingly, this issue is decided in favour of plaintiff and against the defendant. Issue no.3.
The onus to prove this issue was upon the plaintiff. At the outset, it is pertinent to mention over here that plaintiff mentioned in para no.11 of the plaint that defendant by admitting and acknowledging his liability executed various letter of acknoldgment of debt from time to time and the details of the same have been given in the plaint to the effect that an amount of Rs.1,45,050.00 as due on 30.06.1990 was confirmed by defendant on 03.10.1990, similarly, amount of Rs.1,15,084.23 as on 30.06.1993 was confirmed on 15.07.1993 and an amount of Rs.
1,10,428.23 as on 31.03.1996 was confirmed on 11.06.1996 and an amount of Rs.1,44,639.23 as on 24.07.1998 was confirmed on 16.11.1998 and lastly the amount of Rs.1,41,597.23 as due on 30.09.2000 was confirmed by defendant on 30.10.2000 and the contents of this para of the plaint have not been denied by the defendant in his written statement, thus, it is admitted fact by the defendant that he acknowledged the debt towards plaintiff on the dates as mentioned in para no.11 of the plaint. Furthermore, defendant in his cross examination confirmed that written statement bears his signatures at point A and B and he is well conversant with the English language and had gone through his written statement dated 01.04.2003 before he signed it. DW-1 i.e. defendant further confirmed in his cross examination that he had deposited lastly an amount of Rs.30,000.00 in his aforesaid loan account in the year 2000 and also Suit No.633/02 page 5 of page 10 submitted a compromise proposal letter dated 28.01.2000 with the bank and the same is Ex.DW-1/X-1. Section 18 and 19 of the Limitation Act 1963 provides that where before the expiration of the prescribed period for a suit in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party or where payment on account of a debt or of interest on a legacy is made before expiration of the prescribed period by the person liable to pay the debt, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed or when the payment was so made. The letter of acknowledgment admitting his liability by defendant has been proved on record as Ex.PW-1/6, Ex.PW-1/7, Ex.PW-2/1, Ex.PW-3/1, Ex.PW-3/2,. The loan of Rs.1,48,000.00 was granted to defendant on 12.12.1987 and the acknowledgment was made on 03.10.1990 vide Ex.PW-1/6, i.e. within three years and similarly, the remaining acknowledgments were made by the defendant before the expiration of limitation, vide Ex.PW-1/7, Ex.PW-2/1, Ex.PW-3/1, Ex.PW-3/2. Thus, in view of unambiguous acknowledgment of liability by defendant, confirming the debt due and outstanding against loan account and by depositing Rs.30,000.00 lastly in the year 2000, the period of limitation shall be computed from the time, when the acknowledgment Ex.PW-1/6 , Ex.PW-1/7, Ex.PW-2/1, Ex.PW-3/1, Ex.PW-3/2, were made and thus, the suit of the plaintiff is within limitation. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue no.4.
The onus to prove this issue was upon the plaintiff. PW-1 Sh.Virender Kumar, Clerk in the plaintiff bank deposed that the plaintiff bank considered the request of defendant and granted a term loan of Rs.
Suit No.633/02 page 6 of page 10 1,48,000.00 on 12.12.1987 to the defendant against hypothication of the vehicle and the loan was to be repaid in 48 monthly installments. PW-1deposed that in consideration of having granted the aforesaid loan, the defendant executed the promissory note Ex.PW-1/2 and agreement for hypothication of motor vehicle Ex.Pw-1/3 and in view to secure the aforesaid loan amount, deposited the original title deed in respect of 1/4th share in property bearing municipal no.2621,2620B,2622,2623,2633 and 2634, ward no.9, Churiwalay, Delhi, and executed a letter of deposit of title deed in his presence Ex.PW-1/4. PW-1 further deposed that the vehicle no.DBL8567 was hypothicated in favour of plaintiff bank and defendant admitted and acknowledged his liability, while executing letter Ex.PW-1/6 and 1/7 in his presence, but, defendant failed and neglected to fulfill the terms and conditions of the loan agreement and a legal notice dated 17.01.2002 Ex.PW-1/8 was served upon the defendant vide postal registration slip Ex.PW-1/9 asking the defendant to liquidate his liability for the aforesaid amount. PW-2 Sh.P.R.S.Vasan, Asstt. Manager, of plaintiff bank, proved the acknowledgment of debt letter Ex.PW-2/1 confirming an amount of Rs.1,10,428.23 due and outstanding towards defendant as on 31.03.1996. PW-3 Sh.Bhim Nath, Manager, of plaintiff bank, also deposed that plaintiff bank had granted a term loan of Rs. 1,48,000.00 to the defendant on 12.12.1987 for the purchase of new DCM Toyota and proved the letter of acknowledgment of debt as executed by defendant on 16.11.1998 as Ex.PW-3/1 and on 30.10.2000 as Ex.PW-3/2. Execution of none of above said documents have been disputed by defendant, during cross examination of plaintiff witnesses. Defendant in his cross examination deposed that he has already disposed of the hypothicated vehicle no.DBL8567 DCM Toyota and again deposed that Suit No.633/02 page 7 of page 10 the vehicle was destroyed due to weather and not being used and he had not taken any claim from the insurance company.
Ld. counsel for defendant vehemently argued that no authorised person of the plaintiff bank appeared before the court and Sh.P.K.Chopra, who filed the suit, did not appear in the witness box. On the other hand, ld. counsel for plaintiff argued that all the documents including signatures of Sh.P.K.Chopra, the then Chief Manager and principal officer of the plaintiff bank, were identified and proved by the plaintiff witnesses, who were familiar with his signatures during the ordinary course of business. PW-1 Sh.Virender Kumar deposed that plaint has been signed, verified and the suit has been instituted by Sh.P.K.Chopra, the then Manager and principal officer of the plaintiff bank and proved the copy of attorney as Ex.PW-1/1 by deposing that he identified the signatures of Sh.P.K.Chopra on the plaint and verification since he has seen him writing and signing and as such, familiar with his signatures. In his cross examination PW-1 further confirmed that he can identify the signatures of Sh.P.K.Chopra the then Chief Manager of the plaintiff bank, since he has seen him writing and signing and is familiar with his signatures and the present plaint was signed by Sh.P.K.Chopra in his presence. No suggestion was given to this witness by ld. counsel for defendant that he was not acquainted with the signatures of Sh.P.K.Chopra, during the ordinary course of business. The fact that plaintiff bank had granted term loan of Rs.1,48,000.00 to the defendant on 12.12.1987 for the purchase of new DCM Toyota has also been deposed by PW-2 and PW-3 who are Asstt. Manager and Manager of plaintiff bank. The statement of account Ex.PW-1/10 shows that an amount of Rs.73,338.23 as on interest and a sum of Rs.1,07,040.00 were due against Suit No.633/02 page 8 of page 10 the defendant as on 02.06.2002. therefore plaintiff is entitled for recovery of the suit amount i.e. Rs.1,80,778.23 i.e. principal plus interest upto date of filing of the suit. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
Issue no.5.
The onus to prove this issue was upon the plaintiff. PW-1 deposed that defendant had agreed to pay interest @12.5% with quarterly rest and it was agreed that as and when the interest rate is increased or decreased as per the guidelines/directions of RBI, the defendant would be liable to pay interest at the prescribed rates. Ld. counsel for plaintiff argued that the transaction between the plaintiff bank and defendant was commercial connected with the trade and business therefore, plaintiff bank is entitled for contractual rate of interest. Agreement Ex.PW-1/3 executed between the parties provides minimum 12.50% interest with quarterly rest. Accordingly, plaintiff is entitled for 12.5% interest with quarterly rest from the date of filing of the suit till realisation. Accordingly, this issue is decided in favour of plaintiff and against the defendant. Relief.
In view of my findings on the aforesaid issues, suit of the plaintiff is decreed alongwith costs in favour of plaintiff and against the defendant for a sum of Rs.1,80,778.23 with interest @12.5% per annum with quarterly rest from the date of filing of suit till realisation. As plaintiff filed the present suit u/o 34 CPC, a preliminary decree for foreclosure of mortgaged property i.e. 1/4th share of defendant in property bearing municipal no.2621, 2620-B, 2622, 2623, 2633 and 2634, ward no. 9, Churiwalay, Delhi-06 is also passed in favour of plaintiff and against the defendant and defendant is hereby directed to pay the decreetal amount i.e. Suit No.633/02 page 9 of page 10 Rs.1,80,778.23 with interest @12.50% per annum with quarterly rest within six months also with costs of the suit from today to plaintiff bank i.e. on or before 07.10.2011 and in default of payment, as aforesaid, the plaintiff may apply to the court for a final decree that the defendant shall thenceforth, stand absolutely debarred and foreclosed of and from all right to redeem the mortgaged property as mentioned herein above and shall if so required, deliver upto the plaintiff quite and peaceful possession of the mortgaged property. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 06.04.2011. SCJ/RC/(North)/DELHI Suit No.633/02 page 10 of page 10