Delhi District Court
Interalia Having Its Branch Office At vs Bhagwan Dass on 18 January, 2022
DLCT010075392020
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL COURT)-
01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (Commercial) No. 1668/20
M/s ICICI Bank Ltd.
Having its registered office at :
Landmark, Race Course Circle,
Vadodara-390007.
Interalia having its branch office at:-
E-block, Videocon Tower, Jhandewalan,
Extension, New Delhi-110055. .....Plaintiff
Through its authorized representative
Sh. Pankaj Jain.
VERSUS
Bhagwan Dass
S/o Sh. Shri Nath
R/o 27/261, Near Senior Secondary School,
Trilokpuri, New Delhi-110091.
Also at :
North Delhi Municipal Corporation Indira
CS (Comm.) No. 1668/2020 Page 1 of 13
Gandhi Polyclinic,
Indira Gandhi Polyclinic Health Deptt.
N.D.M.C Shakurpur, New Delhi-110034.
M. No. 8826572141
Email ID : [email protected]. .....Defendant
Date of Institution : 02.11.2020
Date of reserving judgment : 14.01.2022
Date of Judgment : 18.01.2022
JUDGMENT
1. The plaintiff bank has filed the present suit for recovery of ₹ 7,14,654 against the defendant with respect to a personal loan facility extended to him.
Plaintiff's Case
2. Briefly stated the case of plaintiff is that plaintiff is a Banking Company within the meaning of Banking Regulation Act and is inter-alia engaged in the business of banking, financing and providing loan facilities to its customers under various schemes such as personal loan, auto loan etc. The suit has been instituted through its authorized representative Mr. Pankaj Jain.
3. The defendant approached the plaintiff bank in the year 2017 for grant of a personal loan for an amount of Rs. 10,00,000/-. The plaintiff acceded to the request of defendant and sanctioned him a loan for the said amount. The relevant particulars of the loan facility so sanctioned by the plaintiff to the defendant are as under:
Loan Account no. LPDEL00036671844
CS (Comm.) No. 1668/2020 Page 2 of 13
Date of execution of 15.11.2017
documents
Equated Monthly ₹ 26,044/-
Installment (EMI)
Rate of Interest 11.49%
Number of EMIs 48 EMIs but subsequently
rescheduled to 52 EMIs due
to Covid -19
4. The defendant had accordingly executed Credit Facility application Form for a valuable consideration.
5. After making certain payments, the defendant however defaulted in repayment and therefore, the loan was recalled vide recall notice dated 18.01.2020 calling upon the defendant to make the payment of amount outstanding. Despite being duly notified, the defendant did not come forward to pay the outstanding amount and thereby constraining the plaintiff bank to institute the instant suit.
6. The plaintiff bank has thus prayed that as on 23.10.2020 a sum of ₹ 7,14,654/- became due against the defendant and that the said sum included principal amount and as also interest, penal interest and other dues. The suit has thus been prayed to be decreed for the said sum of ₹ 7,14,654/- along with pendentalite and future interest @11.49% per annum with monthly rest from the date of filing of the suit i.e. from 29.10.2020 till the realization of amount. Costs of the suit have also been prayed for.
CS (Comm.) No. 1668/2020 Page 3 of 13Service of the Defendant
7. After summons of the suit were sent to defendant then on 17.02.2021 defendant Bhagwan Dass appeared in person and case was adjourned for filing of written statement and affidavit of admission denial of documents. Thereafter on 22.02.2021 though a written statement was filed on behalf of defendant titled as a reply to the plaint and as per record he also appeared on 12.04.2021 but subsequent thereto he stopped appearing and accordingly when on 16.09.2021 he did not appear despite repeated calls, so he was ordered to be proceeded ex- parte. The defendant thereafter did not join the proceedings on the subsequent dates.
8. On the basis of pleadings of the parties, the following issues were accordingly framed on 29.10.2021 and matter was adjourned to 22.11.2021 for recording of Ex parte evidence of Plaintiff :-
1) Whether the plaintiff bank is entitled to recover a sum of Rs. 7,14,654/- from the defendant ? OPP
2) Whether the plaintiff bank is entitled to recover any interest from the defendant, if so on which amount and at what rate and for which period ? OPP
3) Relief.
Plaintiff's Evidence
9. In its evidence, the plaintiff bank has examined only one witness i.e. Mr. Pankaj Jain, its Authorized Representative, as PW-1.
10. PW-1 tendered his oral evidence contained in affidavit Ex.PW1/A CS (Comm.) No. 1668/2020 Page 4 of 13 beside also proving the following documents in evidence:-
Documents Exhibits
Copy of Power of Attorney dated Ex.PW1/1
18.10.2017 (OSR)
Preliminary Credit Facility Ex.PW 1/2
Application Form
Original Credit Facility application Ex.PW 1/3
form
Disbursal memo Ex.PW 1/4
Office copy of legal notice dated Ex.PW1/5
18.01.2020
Certified copy of statement of account Ex.PW1/6
dated 23.10.2020 (Colly)
Certificate under Section 65-B of Ex.PW1/7
Indian Evidence Act, 1872
Certificate under Section 2A of the Ex.PW1/8
Banker's Book of Evidence Act, 1891
Postal receipts Mark X
11. The plaintiff evidence was thereafter closed on 22.11.2021.
Arguments
12. I have heard the submissions advanced by Ms. Babita, Ld. counsel for plaintiff bank.
13. Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
CS (Comm.) No. 1668/2020 Page 5 of 1314. The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business.
15. It was further stated that the testimony of the plaintiff's witness has remained unchallenged and un-impeached as the defendant after having initially appeared and having filed his written statement stopped appearing thereafter and was accordingly proceeded ex- parte. He thus did not cross examine the plaintiff witness.
16. It has also been submitted that the present suit is not only within limitation but there is also no legal impediment which may prevent decreeing the suit in favour of the plaintiff.
17. The plaintiff has also relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments I have carefully perused the record.
18. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Courts Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of CS (Comm.) No. 1668/2020 Page 6 of 13 section 2(c) of the Act.
19. Even though defendant has been proceeded ex-parte, the plaintiff is still liable to prove its case on pre-ponderance of probabilities. PW- 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for plaintiff has placed strong reliance on a judgment passed on 31.01.2018 by our own Hon'ble High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similar to the facts of the present case.
20. PW1 has tendered in evidence his Power of Attorney as Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act,1872.
21.The authority to sue on behalf of the plaintiff has been stated in clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
22. One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.
CS (Comm.) No. 1668/2020 Page 7 of 1323. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship.
24. At this stage, it would be also pertinent to refer to the stand taken by defendant in his written statement dated 22.02.2021 filed in the present matter. At the outset, defendant though did not deny having taken a loan from plaintiff bank but stated the said loan amount was only Rs.9,00,000/-. He however admitted that the loan was to be repaid in equal monthly installments of Rs. 26,044/- and he further stated that he has already paid 22 EMIs amounting to Rs. 5,72,954/-. He further stated that he is liable to pay only Rs. 1,50,000/-. He thus stated that the suit of plaintiff bank for recovery of Rs. 7,14, 654/- to be false. He also denied that the rate of interest was 11.49 % and rather stated that the same was 9.49%. He also stated that the loan documents were not read over to him in vernacular.
25. Before proceeding further, I may state that not only from the loan documents placed on record by plaintiff bank, it is clear that the loan amount extended to defendant was Rs. 10,00,000/- and not Rs. 9,00,000/- and that to @11.49 %. In fact, the averments made in the CS (Comm.) No. 1668/2020 Page 8 of 13 written statement are self contradictory for when a sum of Rs. 5,72,974/- was only paid then even if the total loan amount was Rs. 9,00,000/- as claimed by defendant then also the balance payable amount could not have been Rs. 1,50,000/-. The other stand taken by defendant that the rate of interest was 9.49 % is also belied from the loan documents placed and proved on record by plaintiff. It is thus clear that the averments made in the written statement are completely devoid of any merits and does not require any further discussion to discard away as being vague and evasive.
26. A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of plaintiff, as there may be thousand and one reasons for his non-appearance, and the Court cannot speculate into the reasons for his non-appearance on some analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre-ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein, there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
27. Thus, appreciating the evidence tendered by the plaintiff it is clear CS (Comm.) No. 1668/2020 Page 9 of 13 that the defendant had approached the plaintiff bank and executed documents Ex. PW1/2 and Ex. PW-1/3 seeking a credit facility. The bank acceded to the request and consequent upon the same, the defendant executed the loan documents viz. Ex. PW1/2 and Ex. PW-1/3 . The defendant made some payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/6 (Colly), maintained by the plaintiff bank in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
28. The plaintiff has also served a loan recall notice dated 18.01.2020 Ex. PW1/5 upon the defendant calling upon him to clear the outstanding in his account. Due to non-compliance with the terms and conditions of the loan agreement on the part of defendant, the plaintiff took legal recourse by filing the instant suit for recovery.
29. The loan has been disbursed on 15.11.2017. The suit has been instituted on 29.10.2020 and the same is therefore within the prescribed period of limitation.
30.The plaintiff bank has claimed the suit amount, the components of which have been stated in Ex. PW1/6 as under:
CS (Comm.) No. 1668/2020 Page 10 of 13 Particulars Amount ₹
Principal outstanding 6,11,190/-
Late payment penalty 47,086/-
Cheque bouncing charges 5,856/-
Interest for the month 1,659/-
Prepayment charges 36,060.22/-
Interest on pending installments 48,863/-
Total 7,50,714.22
31. Thus in my considered opinion the plaintiff bank has been clearly successful in proving its case not only on preponderance of probability but also beyond shadow of all reasonable doubts entitling it to the outstanding principal and interest amount. The plaintiff bank is also entitled to the late payment penalty and cheque bouncing charges as the same have been occasioned due to the acts and omissions of the defendant. The same flows from the contractual relationship as per the terms and conditions settled and forming part of the loan documents. However, it is noticed that while filing the present suit, the plaintiff bank has not claimed the pre-payment charges of Rs. 36,060.22/- and the suit has been filed for recovery of Rs. 7,14,654/- only [₹7,50,714.22 - ₹ 36,060/- (pre-payment charges)].
32. The plaintiff has claimed interest till 23.10.2020 but the present suit was filed on 29.10.2020. since no interest for the period 24.10.2020 till 29.10.2020 has been claimed so, the plaintiff is entitled to pendentalite interest only from the date of institution of the suit i.e. 29.10.2020. The plaintiff is thus entitled to interest @ 11.49% per annum which is the contractual rate of interest and the same appears CS (Comm.) No. 1668/2020 Page 11 of 13 to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances.
33. Thus the suit of the plaintiff is liable to be decreed in terms as stated above.
In the aforesaid factual matrix I proceed to decide the various issues as under :
Issue no.1 Whether the plaintiff bank is entitled to recover a sum of Rs. 7,14,654/- from the defendants ?
34. In view of my aforesaid discussion, I am of the considered opinion that the plaintiff bank has been successful in proving its case not only on preponderance of probabilities but also beyond shadows of all reasonable doubts entitling it to the outstanding principal amount as claimed for in the present suit.
Issue No. 2. Whether the plaintiff bank is entitled to recover any interest from the defendants, if so on which amount and at what rate and for which period ?
35. As already discussed above, the plaintiff bank is clearly held entitled to pandentalite and future interest @ 11.49% per annum from the date of filing of suit I.e 29.10.2020 till the realization of the entire amount. Not only the interest sought @11.49% per annum is mentioned on various invoices against which goods / books were supplied but the same also appears to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances. The interest accrued till CS (Comm.) No. 1668/2020 Page 12 of 13 the date of decree shall be part of the decreetal amount.
Issue No. 3 Relief.
36. Further, in view of the conduct of defendant in not only delaying payment of even the admitted amount but also trying to linger on the present matter by opting to not participate in the proceedings after filing of written statement, the plaintiff bank is also held entitled to the costs of the suit as well, as per rules in addition to the suit amount and interest as mentioned above. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, be deposited by the plaintiff within 30 days of the decree.
37. Decree shall be drawn accordingly.
Copy of the Judgment
38. In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
39. File be consigned to the Record Room.
Announced in the open court on 18.01.2022.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts, Delhi CS (Comm.) No. 1668/2020 Page 13 of 13