Delhi District Court
Rashtriya Mahilla Kosh vs Harmony Home on 4 August, 2011
IN THE COURT OF SUNIL KUMAR AGGARWAL,
ADDL. DISTRICT JUDGE(Central)10: DELHI
Suit no. 117/09
Rashtriya Mahilla Kosh
1, Abdul Fazal Road,
Bengali Market,
New Delhi110 001. ....Plaintiff
VERSUS
1. Harmony Home
Muthalakurichy, Thiruvitancoda,
P O Kanyakumari District,
Tamil Nadu - 629174
2. Mr. K.J. Thomas,
Chief functionary & President,
Muthalakurichy, Thiruvitancoda,
Harmony Home,
Kanyakumari District,
Tamil Nadu 629174 ...Defendants
Plaint Presented on 01.07.2009
J U D G M E N T
1. Plaintiff, a society registered under the Societies Registration Act, 1860 and functioning under the department of Women and Child Development, Ministry of Human Resources, Government of India, for providing Micro Credit Finances to Woman and Poorer Sections of society through Self Help Groups, has filed this suit for money recovery through Sh. K.V. Ramana Murty, Deputy Suit no 117 of 2009 Page no. 1 of 7 Director, who has been duly authorized in this behalf. It is stated that defendant no. 1 is the Non Governmental Organization of Tamil Nadu and defendant no. 2 is its Chief functionary and President. On 08.02.2000 defendant no. 1 had made a loan application of Rs. 13 Lacs to the plaintiff for onward lending to the Self Help Groups. In the usual course of its business, the plaintiff had sanctioned loan of Rs. 5 Lacs to the defendants on 14.03.2001 who had executed an agreement cum guarantee deed in favour of the plaintiff and had also filed a copy of resolution authorizing defendant no. 2 on behalf of defendant no. 1. Defendant no. 2 had given personal guarantee on behalf of defendant no. 1 in respect of the loan. The loan was to be paid in two equal installments. On drawal application being made by defendant no. 1, the first installment of Rs. 2,50,000/ was disbursed on 15.10.2001 through Demand draft dated 09.10.2001. Its principal component was to be repaid by the defendants in 11 quarterly installments from March, 2002 to September, 2004. The first 10 installments were of Rs. 22,000/each and the last installment of Rs. 30,000/. The loan was to carry interest @ 8% p.a. with quarterly rests. For the delays defendants were liable to pay penal interest @ 2% p.a. for the first 30 days and @8% p.a. thereafter.
2. After availing the facility, the defendants were found to be negligent in servicing there loan account no. 1067. Initially they made certain payments which have been adjusted against interest liability. No amount towards repayment of principal amount was received by the plaintiff. Till 21.03.2009 a sum of Rs. 2,41,217/ by way of Suit no 117 of 2009 Page no. 2 of 7 interest had accumulated in which the total amount of Rs. 57,500/ received from the defendants was adjusted leaving an outstanding liability of Rs. 1,83,817/. Repeated reminders to the defendants to clear their overdue installments and regularize the loan account did not yield any result. Plaintiff then got legal notice dated 24.06.2005 issued to the defendants who sent its reply dated 17.07.2005 seeking further time to make payments. Subsequently demand draft dated 21.06.2006 for Rs. 30,000/ was received from the defendants but thereafter no efforts were made to clear the account. Hence the suit for recovery of Rs. 4,33,817/ with interest @ 16% p.a. and costs.
3. Defendants in their written statement have taken preliminary objections. It is stated that the suit is barred by limitation. Whereas it could have been filed upto 25.06.2009 but was instituted on 01.07.2009 despite the registry and filing counter of the court were open during vacations. It is contended that the suit has been filed without any cause of action by suppressing the material facts with motive to blackmail, harass and extract money from the defendants. It is also claimed that the suit has not been properly verified as per law. On merits it has been admitted that the loan was taken from the plaintiff but the rate of interest is termed to be highly exorbitant. The defendants have already paid Rs. 2,25,000/ to the plaintiff towards the loan. The interest has been calculated arbitrarily to reach the imaginary figure of Rs. 1,83,817/. It is denied that the defendants did not take steps to clear the outstanding loan. In fact the plaintiff has raised a case of false liability which is not payable by the defendants.
Suit no 117 of 2009 Page no. 3 of 7 Dismissal of the suit therefore, has been urged.
4. Replication is the formality of reiterating the contents of this suit and rebuttal of the adverse contents of written statement. On the basis of pleadings of parties following issues were framed on 08.03.2010:
1. Whether the suit has been filed within the period of limitation? OPP.
2. Whether the suit has been signed and instituted by the duly authorized and competent person? OPP.
3. Whether the plaintiff is entitled to recover the suit amount with interest from the defendants? OPP.
4. Relief.
5. Before plaintiff could adduce any evidence, the defendants stopped appearing in the matter. They were thus proceeded exparte on 29.07.2011.
6. In exparte evidence plaintiff has examined Ms. Shikha, Deputy Director of the plaintiff as PW1 who has narrated the facts and proved office order dated 26.11.2007 as Ex. PW1/1, sanction letter dated 14.03.2001 Ex. PW1/2, agreement cum guarantee deed Ex. PW1/3, resolution passed by defendant no. 1 in favour of defendant no. 2 Ex. PW1/4, disbursement advise of the first installments of loan Ex. PW1/5, copy of demand draft dated 21.06.2006 along with the supporting hard copy of Email Ex. PW1/6, copy of legal notice Ex. PW1/7, UPC slip Ex. PW1/8 to Ex. PW1/10, postal receipts Ex. PW1/11 to Ex. PW1/13 and reply received from defendants Ex. PW1/14. On formally tendering her evidence by way of affidavit, plaintiff has closed the exparte evidence.
Suit no 117 of 2009 Page no. 4 of 7
7. I have heard Sh. Rakesh Sinha, advocate, ld. Counsel for the plaintiff and carefully perused the file. The defendants although have sought dismissal of the suit on the ground that plaint is without any cause of action. The objection is vague in as much as it has not been elaborated as to how the cause of action to recover the outstanding loan amount with interest in favour of plaintiff has extinguished. The resentment of defendants about the plaintiff having suppressed the material facts and thus is not entitled to accommodation by the Court, also appears baseless. The defendants have categorically admitted having received the first installment of sanctioned loan. They claimed to have refunded substantial part of principal amount but no document whatsoever in support of the assertion has been submitted. Even the statement of account maintained in this behalf, is not filed on judicial record. It is therefore, the defendants who have failed to come out with documentary proof in support of their defence. Defendants further have failed to explain the manner in which they have been blackmailed, harassed or coerced by the plaintiff. No such allegation was levelled in the correspondence exchanged between the parties including the legal notice. The preliminary objection raised in this behalf, is therefore after thought and is an attempt to gain misplaced sympathy. The rest of the findings issuewise are as follows: Issue No.1.
8. The first installment of loan was disbursed to defendant no. 1 on 15.10.2001. It was repayable in quarterly installments upto Suit no 117 of 2009 Page no. 5 of 7 September 2004. The defendants remitted paltry sums of Rs. 2,500/ on 08.10.2002 and Rs. 25,000/ on 19.12.2003 in the loan account which was adjusted in the interest component. The last payment by way of demand draft Ex. PW1/6 was received on 26.06.2006. Counting from the last payment, the payment by way of demand draft amounted to acknowledgment of liability by the defendants in writing before the expiration of prescribed period of limitation. As per Section 18 of the Limitation Act, therefore a fresh period of limitation shall be computed from the date of acknowledgment of liaability. The limitation of three years for filing recovery suit expired on 25.06.2006 which was a Court holiday on account of summer vacations. As per Section 4 of the Limitation Act when the prescribed period of limitation expires on a day when the Court is closed, the suit may be instituted on the day when the Court reopens. Even if the registry or filing counter of the District Courts was open on 25.06.2006, since it was not a normal and ordinary working day of the Courts, the benefit of Section 4 of the said act shall enure to the plaintiff. Reference to the judgment in Harijeevan Sahu Vs. Jai Ram Sahu, AIR 1989 Patna 96 may usefully be made in this behalf. Suit is therefore found to have been instituted within the period of limitation. The issue is decided in favour of the plaintiff.
Issue No. 2
9. There is no dispute that plaintiff is a registered body. As a juristic person is has to depute humans to look after and conduct its affairs. There is no dispute in pleadings about the position of Deputy Suit no 117 of 2009 Page no. 6 of 7 Director held by Sh. K. V. Ramana Murty in the plaintiff's society. Holding such a administrative position, he was competent to sign and verify the pleadings on behalf of the plaintiff as its Principal Officer under Order 29 Rule 1 CPC. He was otherwise specifically authorized by the society in this behalf wide officer order dated 26.11.2007 Ex. PW1/1. He had further been empowered to institute the suits etc. on behalf of the plaintiff generally against the defaulting borrowers. He was therefore competent to sign verify and institute the present suit on behalf of the plaintiff. For support reference may be made to the ratio of United Bank of India Vs. Naresh Kumar, II (1996) Banking Cases 550 (SC).
Issue No. 3
10. Quite vaguely it has been asserted by the defendants that a sum of Rs. 2,25,000/ has been paid by them to the plaintiff towards the loan account. No details of such payment/s and mode have been furnished. The forwarding letters addressed to the plaintiff or the receipts of payments have not been submitted. Even the statement of account showing such payments has not been filed. The plaintiff in legal notice Ex. PW1/7 had categorically stated the total amounts received from the defendants and their adjustment in the loan account in response thereof reply Ex. PW1/14 was received from defendant no. 2 on behalf of defendant no. 1. Rather than refuting the claim of plaintiff it was urged that the payment will be remitted by the end of the month and cooperation of plaintiff was solicited. The claim of payment of defendants therefore remained unsubstantiated.
Suit no 117 of 2009 Page no. 7 of 7
11. Defendant on the other hand, has provided the details of meagre payments received from the defendants by filing the statement of blacklisted loan account of defendant no. 1. Since only three payments have been received from the defendants in about 8 years prior to the institution of this suit and that too without specification of adjustment, the plaintiff was entitled to set off accrued interest therewith. The entire principal amount of Rs. 2,50,000/ remains outstanding against the defendants.
12. On sanction of loan vide letter dated 14.03.2001, letter Ex. PW1/2 the defendants had executed agreement cum guarantee deed dated 30.03.2001 Ex. PW1/3 containing detaied terms and conditions. The facility was granted to defendant no. 1, NGO on concessional interest of 8 % p.a. with rider that in case the repayment will be beyond the period of 18 months after initial gestation period of 6 months, penal interest was to be levied on delayed payment up to one month and in cases of persistent defaults beyond one month, rate of penal interest was 8 % p.a. Defendant no. 2 having executed the agreement on authorization Ex. PW1/4 from defendant no. 1 and on his on behalf as its guarantor cannot shierk the liability by terming the interest to be exhorbitant and the total accumulated interest to be imaginary. The calculation of interest at applied rates has not been disputed. There is no reason to deny the contractual rate of interest on the loan amount to the plaintiff particularly when the defendants have not produced the circumstances due to which they failed to make payment of installments on their due dates. The plaintiff thus is held Suit no 117 of 2009 Page no. 8 of 7 entitled to recover the suit amount with interest from the defendants. Issue No. 4
13. In view of the above reasons, suit is decreed in favour of the plaintiff and against the defendants in the sum of Rs. 4,33,817/ with interest @ 12 % p.a. from the date of filing of the suit till realization and costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in Open Court on 04th August, 2011.
(Sunil Kr. Aggarwal)
Addl. District Judge(C)10
Delhi
Suit no 117 of 2009 Page no. 9 of 7
Suit no. 117/09
04.08.2011
Present: Sh. Rakesh Sinha, Adv.Ld. Counsel for the plaintiff.
Defendants are exparte.
Arguments have been heard. Vide separate judgment
directly dictated on the computer, the suit of plaintiff has been decreed. File be consigned to Record Room (Sunil Kr. Aggarwal) Addl. District Judge (Central)10 Delhi: 04.08.2011 Suit no 117 of 2009 Page no. 10 of 7