Delhi District Court
Canara Bank vs Sh.Deepak Khanna on 21 October, 2008
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IN THE COURT OF SH. DAYA PRAKASH
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. : 131/07
CANARA BANK
Head Office at :
112, J.C.Road
Bangalore.
...Plaintiff
VERSUS
1. Sh.Deepak Khanna
S/o. Sh.Kuldip Khanna
C-410-A, First Floor
Sushant Lok, Phase-I
Gurgaon, Haryana.
2. Sh.Ram Roop Maurya
S/o. Sh.Ram Milan Maurya
R/o.D-754, Ashok Nagar
Street No.15, Delhi-110 093.
...Defendants
Date of Institution of the Suit: 02.06.2007
Date on which the judgment has been reserved: 21.10.08
Date of delivery of judgment: 21.10.2008
SUIT FOR RECOVERY OF Rs.3,04,699/-
EX-PARTE JUDGMENT
1. By thisjudgmentI shalldisposeof the suit for
recovery of Rs.3,04,699/- filed by the plaintiff against the
defendants.
2. Intheplaint,
itissubmitted
thatthebank isa body
corporateconstituted
and functioning
under the Banking
1/9
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Companies Act havingitsregistered
office
at112,J.C.Road
Bangaloreand branchesamongstothersone atPitamPura,
Delhiand isregulated
by RBI and ordersoftheReserveBank
ofIndia
arebinding
on allthebanksand havetheforceoflaw.
Itissubmitted
thatSh.M.C.Gupta
istheManageroftheplaintiff
bankand alsoholdsGPA havingauthority
toinstitute,
signand
verify
thesuit.Itissubmitted
thatthedefendant
no.1being
one of thesavingaccountholdersof the plaintiff
bank had
approachedtheplaintiff
bank and requested
forgrantofloan
forthe purchaseof Computer,A.C. and Invertor
as per
performainvoices
dt.05.08.2001
and 14.09.2001issuedby
Mega PC Mart and Electronic
Systems respectively.
Itis
submittedthatdefendantno.1 alongwithdefendantno.2
appliedforthe loanon 28.08.2001.
Itissubmitted
thatthe
defendant
no.2stoodguarantor
totheloanfacility
grantedto
defendant
no.1and theguarantee
so executedby him isco-
extensive,
subsisting
and continuing
one.Itissubmitted
that
the plaintiff
bank sanctioned
a loanto defendantno.1and
issued Demand Draft no.064093 dt.20.09.2001for
Rs.2,49,995/-
infavourofMEGA PC Martand a demand draft
no.266364 dt.20.09.2001for Rs.83,000/-in
favour of
M/s.Electronic
System consistingof loan amount of
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Rs.2,49,000/-
and remainingamount as margin money of
Rs.84,620/-.
Itissubmitted
thatdefendant
no.1had executed,
signedand delivered
the Pronoteof Rs.2,49,000/-alongwith
takedelivery
letter
to DPN, letter
of undertaking
regarding
loans/advancesintheformno.NF-721oftheplaintiff
bank;
agreementcum deed ofhypothecation,
letter
ofauthorisation
authorising
theplaintiff
bank to debitthemarginmoney of
Rs.84,620/-
fromtheCA No.3028ofdefendant
no.1,letter
of
authorization
authorising
theplaintiff
banktodebit
themonthly
installment
of Rs.8700/-
from the CA No.3028of defendant
no.1,irrevocable
mandateby defendant
no.1fordeduction
of
monthlyinstallment
of Rs.8700/-from the CA No.3028 of
defendant
no.1and letter
ofauthorisation
by defendant
no.1to
publish
hisname inthecaseofdefault
n therepaymentofloan
advancetodefendant
no.1.Itissubmitted
thatitwas agreed
by defendant
no.1torepaytheloanin36 monthlyinstallments
of Rs.8700/-commencing from October 2001 which the
defendant
no.1failed
topay fromtheveryfirst
beginning
and
later
on paidpartpaymentsdue tofollow
up oftheplaintiff
bank. Itis submittedthatdefendantno.1 also not kept
sufficient
balancein hisCA No.3028 to make the monthly
installments.
Itissubmitted
thatfurther
the defendantno.1
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failed
to regularize
the loanaccountand therefore
thesaid
loan accountbecame irregular,
overdue and sticky.
Itis
submitted
thatplaintiff
bankremindedthedefendant
s timeand
again to liquidate the outstanding liability
defendant
s are
as the
beingjointly
and severally
liable
fortheloanfacility
availed
by
the defendantno.1 but to no avail.
Itis submittedthat
defendantno.1 acknowledgedthe outstanding
liability
of
Rs.2,06,453/-vide
letter
dt.03.09.2004
and showed hisinability
to repaythe same due to poor professional
activities
and
requestedthe plaintiff
bank to settle
the loan amount of
Rs.2,07,000/-
tobe repaidinthreeequalmonthlyinstallment.
The plaintiff
bankconsidered
therequest
ofthedefendant
no.1
and amicablysettled
thematterwiththedefendant
no.1fora
sum of Rs.2,70,000/-
in fulland final
settlement
and the
defendant
no.1has givena chequeofRs.1,57,000/-
infavour
oftheplaintiff
bankhoweverthesaidchequewas dishonoured
and theoutstanding
remaindue and notpaidby thedefendant
no.1.Itissubmitted
thatplaintiff
bankhad issueda legal
notice
dt.20.05.2005
to the defendant
s but the defendant
s despite
havingknowledgeofthesame neither
replied
norcomplied
the
same. Itissubmitted
thatplaintiff
bank alsofiled
a criminal
complaint
againstthe defendantno.1u/s.138of NI Act for
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dishonour
ofthesaidchequewhichispending.
Itissubmitted
thatas perloandocumentsexecutedfortheloanfacility
the
defendant
no.1and 2 had agreedtopay interest
@3.75% p.a.
p.a.abouton goingPLR witha minimum of 15.50% p.a.
Compounded withquarterly
restsand further
agreedthatin
case theloanaccountbecome irregular,
overdueand sticky
thenthedefendantno.1and 2 alsoliable
to pay 2% penal
interest
overand above theregular
applicable
rateofinterest
till
itisregularised
and thesame was chargedaccordingly.
Itis
further
submitted
thatas perloandocumentsexecutedby the
defendant
no.1theplaintiff
bank have everyright
toseizethe
hypothecated
goods and tosell
thesame for recovery
ofthe
due amount but the plaintiff
bank unableto seizethe said
hypothecated goods.
Plaintiff
further
submitsthatthe cause of action
aroses in favour of the plaintiff and against the defendant
this
courthas jurisdiction
totryand decidethepresent
suit
and
thatthe suithas been properly
valuedforthe purposesof
jurisdiction and court fees.
Accordingly plaintiff seeks the following relief's:
i. a joint and several money decree for
Rs.3,04,699/- be passed alongwith
pendentelite and future interest @16.50%
compounded with quarterly rest including
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2% penal interest till the realisation against
defendant no.1 and 2;
ii. to attach the hypothecated computer, A.C.
And invertor if any, available with the
defendant no.1 and its sale then permitting
its proceeds to be adjusted towards the
outstanding liability and further rights to
recover the remaining amount of the
decree;
iii.to grant the costs of the suit throughout in
favour of the plaintiff and
iv.and pass such other and further order.
3. D efendant
s no.2 served but failedto appear
accordingly
proceededex-partevide order dt.31.07.2007.
D efendant
no.1couldnotbe servedthroughordinary
process.
Advocateofplaintiff
moved an application
u/s.5Rule20 CPC
for substitute
serviceof defendantno.1. Accordingly,
defendant
no.1was directed
tobe servedthroughpublication
in newspaper"The Statesman"Haryana Edition.
However,
despiteservicethrough publication
in newspaper ''The
Statesman"dt.05.02.2008,
defendantfailed
to appear and
accordingly, proceeded ex-parte vide order dt.12.05.2008.
4. Ex-parte evidence was ledplaintiff
by the
.
5. PW1/Manager of plaintiff bank Sh.M.C.Guptain 6/9 //7// evidence by way ofaffidavit almostdeposedon thesame lines as mentionedintheplaint and gotexhibited thephotocopyof Power of Attorneyin his favourby the plaintiff bank as exh.PW1/1(OSR),original documents i.e.application form dt.28.08.2001 as exh.PW1/2;PerformaInvoice dt.05.08.2001 and 14.09.2001as exh.PW1/3 and PW1/4 respectively;
specimen signaturecard as exh.PW1/5;sanctionletter dt.20.09.2001 as exh.PW1/6;pronoteas exh.PW1/7;Letter of undertakingas exh.PW1/8; agreement cum deed of hypothecation as exh.PW19;letter ofauthorisation authorising the plaintiff bank to debitthe marginmoney of Rs.84,620/-
fromtheCA No.3028ofdefendant no.1as exh.PW1/10;
letter of authorisation authorising the plaintiff bank to debitthe monthlyinstallment of Rs.8700/-
from the CA No.3028 of defendantno.1 as exh.PW1/11;irrevocable mandate by defendantno.1 for deductionof monthly installment of Rs.8,700/-
from the CA No.3028 of defendantno.1 as exh.PW1/12;Letterof authorisation by defendantno.1 to publish hisname inthecase of default intherepaymentof loanadvancetodefendant no.1as exh.PW1/13;
agreementof guarantee as exh.PW1/14;
letter ofauthorisation by defendant no.2 to publishhis name in the case of defaultin the 7/9 //8// repaymentofloanby defendant no.1as exh.PW1/15;
debit slip dt.20.09.2001 and DD application dt.20.09.2001 forissuance of DD of Rs.2,49,995/-
are collectively exhibitedas exh.PW1/16;Carbon copy of coveringletter dt.20.09.2001 addressedtothesupplier ofthecomputerM/s.MegaPC Mart as exh.PW1/17;Carboncopy ofcovering letter dt.20.09.2001 addressedtoM/s.Electronics Systemsas exh.PW1/18;
receipt and bill dt.21.09.2001 ofRs.2,49,995/-
submitted by defendant no.1 as exh.PW1/19 and exh.PW1/20 respectively;
Form no.NF-373as exh.PW1/21;acknowledgmentof debt and security as exh.PW1/22;letter dt.03.09.2004 as exh.PW1/23;
letter dt.24.09.2004 as exh.PW1/24;office copiesof letters dt.11.09.2003 , 27.11.2003,29.11.2003,12.01.2004and 27.02.2004are exh.PW1/25to PW1/30 respectively;
letter dt.23.05.2003 ofdefendant no.1as exh.PW1/31;
carboncopy of legal notice dt.20.05.2005 as exh.PW1/32 and the statement ofaccountisexh.PW1/33.The copy ofcomplaint u/s.138NI Act is marked as Mark X.
6. Ihave seen thefile, documentson recordand feel thatplaintiff bankhas proveditscaseagainst thedefendants.
I am satisfied with the case of the plaintiff againstthe 8/9 //9// Accordingly, the suit of the plaintiff is hereby defendants.
decreed for a sum of Rs.3,04,699/- (Rupees Three Lacs Four Thousand Six Hundred and Ninety Nine only) in favour of plaintiff bank and against the defendants no.1 and 2 jointly and severally alongwith cost and interest @9% per annum from the date of filing of the suit till its realisation.
7. Decree Sheet be preparedaccordingly.
Filebe consigned to Record Room.
Announced in open Court DAYA PRAKASH today on dated 21.10.2008 ADDITIONAL DISTRICT JUDGE DELHI 9/9