Delhi District Court
Bank Of India vs Smt. Manju Khera on 22 October, 2016
Suit No.607257/16
IN THE COURT OF Ms. MONA T. KERKETTA,
CIVIL JUDGE5, WEST, TIS HAZARI COURTS, DELHI
CNR NO.: DLWT030000162006
In Re. :
Bank of India,
A Body corporate, Incorporated and constituted
under the provisions of the Banking Companies
(Acquisition & Transfer of Undertakings)
Act 1970, having its Head Office at "Star House"
G Block, Plot No. C5, Bandra - Kurla Complex,
Bandra (East), Mumbai51, having one of its branch office
amongst others at Mandir Marg, New Delhi. ...............Plaintiff
Versus
1.Smt. Manju Khera W/o Sh. R.C. Khera, R/o 30/7, Old Rajinder Nagar, New Delhi110060.
Also at :
Through the DRM, Operating Branch, Designation : Senior Typist, Northern Railway, Staff Entry Road, New Delhi110002.
2. Smt. Janak Rani, W/o Late Sh. K.G. Arora,
3. Ms. Deepa D/o Late Sh. K.G. Arora Both r/o 116/11, Railway Colony Suit No.607257/16 Bank of India Vs. Manju Khera Page No.1/11 Suit No.607257/16 Delhi110007.
Both Also at :
R/o 112/10, Railway Quarter, Kishan Ganj, Delhi110007. ........... Defendants SUIT FOR RECOVERY OF RS. 84,730/ ALONG WITH INTEREST Date of institution of the suit : 13.03.2006 Order reserved on : 28.09.2016 Date of Judgment : 22.10.2016 JUDGMENT (UNDER ORDER 37 CPC)
1. The brief facts of the case as mentioned in the plaint are that in or about September 2000, at the request of defendant no.1, the plaintiff sanctioned a demand loan of Rs.50,000/ for medical treatment of mother in law of the defendant no.1, which was agreed to be repaid in 36 EMIs of Rs.1,760/ each commencing from October 2000 and was secured by the personal guarantee of Sh. K.G. Arora, i.e. husband of defendant no.2 and father of defendant no.3.
2. It is further stated that in consideration of granting the said loan and to secure the due repayment, defendant no.1 executed certain documents in favour of the plaintiff i.e. Demand Promissory Note, Letter of Continuing Security, Letter of Lien and Set Off, Bearer Letter, Form No.440, all dated 22.09.2000 and Sh. K.G. Arora, who expired on 29.09.2002, stood guarantor for the defendant no.1, who also executed Continuing Guarantee Deed dated Suit No.607257/16 Bank of India Vs. Manju Khera Page No.2/11 Suit No.607257/16 22.09.2000 in favour of plaintiff whereby he agreed to repay all the dues in the account of defendant no.1 including interests, costs and other charges within a period of two days of demand in writing and that the statement of account shall be conclusive evidence. It is further stated that the said letter of continuing guarantee is valid, subsisting and available to the plaintiff for realization of their dues and that any acknowledgment by the principal borrower of the amount due to the plaintiff shall be binding against him.
3. It is further stated that the defendant no.1 after availing the demand loan, failed and neglected to repay the stipulated monthly installments and also failed to pay the interest at the agreed rate on the specified dates as a result of which her loan account is grossly out of order.
It is further submitted that as per the prudent norms of accounting laid down by RBI and internal accounting with regard to NPA, the plaintiff has not debited the interest from 27.03.2001 in the loan account but the plaintiff is entitled to recover the same as per contract between the parties.
4. It is further stated that the plaintiff requested defendant no.1 repeatedly to regularize his demand loan account and also to deposit the installments regularly but of no avail. It is further stated that legal notice dated 28.01.2006 was also sent to the defendants to pay a sum of Rs.82,702/ till 20.12.2005 but they failed and neglected to pay the same. It is further stated that the defendants are jointly and severally liable to pay the dues outstanding against them.
5. It is further stated that the plaintiff is also entitled to interest on Suit No.607257/16 Bank of India Vs. Manju Khera Page No.3/11 Suit No.607257/16 the suit amount @ 13.25% p.a with monthly rests plus 2% penal interest from the date of institution of the suit till realization of entire dues. Hence, the present suit has been filed by the plaintiff seeking decree for recovery of Rs. 84,730/ along with interest pendentelite and future @ 13.25% p.a. plus 2% penal interest p.a with monthly rests from the date of filing of the suit till actual realization along with costs of the suit.
6. The defendants contested the suit by filing application seeking Leave to Defend the suit. Vide order dated 16.07.2011 passed by Ld. Predecessor, Leave to Defend application of defendant no.1 was dismissed and a decree was passed for a sum of Rs.84,730/ along with interest @ 10% per annum and Decree Sheet was directed to be prepared accordingly. Whereas Leave to Defend application of defendant No.2 and 3 was allowed and they were directed to file the Written Statement accordingly.
7. The defendant No.2 and 3 have filed their Written Statement taking Preliminary Objections that they have not inherited any movable or immovable property from the estate of the Guarantor Late Sh. K.G. Arora, hence, they have no liability to pay the dues and debts of the Guarantor. In reply on merits, the defendant no.2 and 3 have denied all the contentions of the plaintiff and submitted that the suit of the plaintiff filed against them may be dismissed with heavy costs.
8. The plaintiff filed the Replication denying the defense of the defendant no.2 and 3 and reiterating the averments as mentioned in the plaint.
Suit No.607257/16 Bank of India Vs. Manju Khera Page No.4/11 Suit No.607257/169. On the pleadings of the parties following issues were framed on 06.02.2012 by the Ld. Predecessor :
(i)Whether the defendants no.2 and 3 have not inherited the estate of deceased guarantor as alleged? OPD.
(ii)Whether the plaintiff is entitled for the recovery of suit amount as prayed? OPP.
(iii)Whether the plaintiff is entitled for the interest on the suit amount? If so, at what rate and for which period? OPP.
(iv) Relief.
10. In support of its case, the plaintiff examined Sh. R.K. Mangal, Retd. Chief Manager, Bank of India, as PW1, who tendered his examination in chief by way of affidavit which is Ex.PW1/A, bearing his signatures at point A and B. He also relied upon the following documents :
(a)General power of attorney of Sh. R.K. Arora : Ex. PW1/1(OSR);
(b)Original demand promissory note : Ex. PW1/2;
(c)Original letter of continuing security : Ex. PW1/3;
(d)Original letter of lien and set off : Ex. PW1/4;
(e)Original bearer letter : Ex. PW1/5;
(f)Original form no.440 (letter of authority) : Ex. PW1/6;
(g)Original guarantee deed : Ex. PW1/7;
(h)Statement of account : Ex. PW1/8;
(i)Copy of legal notice dated 28.01.2006 : Ex. PW1/9;
(j)Original postal receipts : Ex. PW1/10 to 13;
Suit No.607257/16 Bank of India Vs. Manju Khera Page No.5/11
Suit No.607257/16
(k)UPC receipt : Ex.PW1/14;
(l)Returned AD cards and envelopes containing legal notice : Ex. PW1/15 to 17;
(m) Letter of acknowledgment of debt : Ex. PW1/18.
11. Perusal of record shows that Defendant no.2 and 3 abstained from the proceedings after framing of issues and did not cross examine the PW1 despite having opportunities. Subsequent thereto, the matter was fixed for PE, if any / DE, if any/ final arguments. Remaining PE as well as DE was closed vide order dated 10.07.2013 passed by Ld. Predecessor and the matter was fixed for final arguments which were reheard by the undersigned. Reliance has been placed on the judgment titled as Kamal Gupta and etc. Vs. Bank of India and anr., AIR 2008 Delhi 51.
12. The court heard the arguments of learned counsel for the plaintiff and perused the record with his assistance.
13. The court now proceeds to examine the evidence and documents brought on record in order to discharge the burden of proving the abovesaid issues.
The issue wise findings of the court are as under : ISSUE NO.1 : Whether the defendants no.2 and 3 have not inherited the estate of deceased guarantor as alleged? OPD.
14. Onus to prove this issue was on the defendant no.2 and 3. It may be noted that in their Written Statement, they have taken preliminary Suit No.607257/16 Bank of India Vs. Manju Khera Page No.6/11 Suit No.607257/16 objections that they have not inherited any movable or immovable property from the estate of deceased guarantor, hence, they have no liability to pay the dues and debts of the deceased guarantor. Whereas, the plaintiff categorically denied the same and reiterated that all the properties of deceased guarantor have been inherited by defendant no.2 and 3 and therefore, they being legal heirs of deceased guarantor, are liable to pay his dues and debts.
15. The plaintiff has examined Sh. R.P. Mangal, Retd. Chief Manager, Bank of India as PW1 in support of the case. This witness has deposed that Sh. K.G. Arora, was the husband of defendant no.2 and father of defendant no.1 and stood guarantor for defendant no.1 but unfortunately he expired on 29.09.2002. Thus, defendant no.2 and 3 being LRs of deceased guarantor are liable to pay the dues and debts of the deceased guarantor. It is further deposed that defendant no.2 and 3 are residing within the jurisdiction of this court and inherited the movable and immovable properties of the deceased guarantor after his death. It is further deposed that the deceased guarantor had executed the continuing guarantee deed dated 22.09.2000 whereby he had agreed to repay the loan and all the dues in the account of defendant no.1 in case of default including interests, costs and other charges within a period of two days of demand in writing by the plaintiff and that the statement of account shall be a conclusive evidence. It is further deposed that the said continuing guarantee deed dated 22.09.2000, which is Ex.PW1/7 is still valid, subsisting and available to the plaintiff for the realization of its dues and any acknowledgment by the principal borrower of the amount due to the plaintiff shall be binding against the guarantor as well as his LRs. It is further deposed that defendant no.1, after availing the Suit No.607257/16 Bank of India Vs. Manju Khera Page No.7/11 Suit No.607257/16 loan failed and neglected to repay the stipulated monthly installments and interest at the agreed rate on the specified dates resulting into grossly out of order of loan account and non performing asset.
16. In addition to the oral deposition, the plaintiff has also produced documentary evidence. The documents brought on record are Ex.PW1/2 to Ex.PW1/18, which clearly record that defendant no.1 was granted loan of Rs.50,000/ along with interest @ 3.5% per annum over Bank of India Prime Landing Rate with the minimum of 16% per annum with quarterly rests under the guarantee of deceased guarantor Sh. K.G. Arora by the plaintiff which remained unpaid by defendant no.1 despite legal notice dated 28.01.2006.
17. The point for consideration now is whether the defendant no.2 and 3 have inherited assets of deceased guarantor being his LRs and liable to pay the debts and dues of deceased guarantor accrued on account of default of defendant no.1, the principal borrower, in repayment of the loan to the plaintiff. It is well settled that defendant no.2 and 3 being LRs of deceased guarantor are liable to pay the dues and debts from the inherited estate of deceased guarantor which the deceased guarantor was supposed to pay in the event of default of principal borrower in the repayment of the loan.
18. It may be noted that the defendant no.2 and 3 have neither cross examined the plaintiff witness nor led evidence in support of their defence. However, it is well settled proposition of law that the plaintiff is required to prove the entire case in accordance with law. In the judgment titled as Shri Suit No.607257/16 Bank of India Vs. Manju Khera Page No.8/11 Suit No.607257/16 Sunil Dang Vs. Dr. R.L. Gupta, CS (OS) 1617/2007, decided on 13.01.2009, Hon'ble High Court of Delhi held that even in the cases where the defendant is ex parte, responsibility of the plaintiff to prove his case does not get diluted. On the contrary, on the defendant being ex parte, the onus is more on the plaintiff to prove his case. When the defendant is contesting the suit, the matters which are not disputed by the defendant are deemed to be admitted and need not be proved. However, when the defendant fails to appear, there can be no admissions and the plaintiff is to prove the entire case in accordance with law.
19. The term "execution" means the process for enforcing or giving effect to the judgment of the court. In other words, execution is the enforcement of decrees and orders by the process of the court so as to enable the DH to realize the fruits of the decree. The execution is complete when the DH gets money or other thing awarded to him by the JD. A decree for recovery of money against the LRs of a deceased JD can be executed only from the asset/property, if any, left by the deceased JD. While adjudicating upon the disputes between the parties, the court is required to keep in mind whether the decree to be passed in favour of the party shall be executable or not as an executing court cannot go behind the decree and it must take the decree as it stands and execute it according to its terms.
20. In the present suit, it may be noted that no evidence has been produced by the plaintiff to prove on record that the deceased guarantor had left any asset or property, which was inherited by defendant no.2 and 3. For this reason, the decree, even if any passed in favour of the plaintiff and Suit No.607257/16 Bank of India Vs. Manju Khera Page No.9/11 Suit No.607257/16 against the LRs of deceased guarantor for recovery of suit amount with interest, cannot be executed without it being established on record that they had actually inherited any property or asset from the deceased guarantor. The plaintiff, despite claiming that defendant no.2 and 3 have inherited movable and immovable properties from the estate of deceased guarantor has not produced evidence of any kind be it ocular or documentary evidence, to show that the defendant no.2 and 3 have actually inherited any movable or immovable property from the estate of deceased guarantor and hence liable to pay the dues and debts being the LRs of deceased guarantor in the event of default of principal borrower.
21. In the opinion of the court, in the absence of personal knowledge or lack of access to the requisite information, the plaintiff ought to have resorted to the provisions of Order 11 CPC which provides for discovery of facts and inspection of documents with a view to understand and meet the case of the defendant no.2 and 3 at the initial hearing itself. The plaintiff had all the opportunities to compel the defendant no.2 and 3 to disclose information about the estate of deceased guarantor. Similarly, the plaintiff also had the opportunity to compel defendant no.2 and 3 to make a list of relevant documents in their possession or power in respect to the estate of the deceased guarantor. However, the plaintiff did not resort to such discovery and inspection in order to have information regarding the estate of deceased guarantor. In the given facts and circumstances, it is established on record that the plaintiff has failed to discharge the burden of proving that defendant no.2 and 3 have indeed inherited the estate of deceased guarantor and hence, liable to pay the dues and debts of deceased guarantor. Issue no. 1 is Suit No.607257/16 Bank of India Vs. Manju Khera Page No.10/11 Suit No.607257/16 therefore decided against the plaintiff and in favour of defendant no. 2 & 3.
22. In view of the findings with respect to the issue no. 1, issue no. 2 becomes redundant for the purpose of deciding the present suit as once inheritance of estate of deceased guarantor by defendant no.2 & 3 cannot be established there is no question of payment of dues and debts of deceased guarantor in the event of default of principal borrower in the repayment of loan to the plaintiff.
23. The court is of the conclusion that the plaintiff has failed to prove issue no. 2 in its favor.
24. In view of the findings on the above said issues, the plaintiff is held not entitled to the decree of recovery of suit amount along with interest qua defendant no.2 & 3.
25. The suit of the plaintiff is accordingly dismissed. Plaintiff to bear its own cost.
26. Let the decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court (Mona T. Kerketta)
today on 22.10.2016 Civil Judge05/West/THC/Delhi
Suit No.607257/16 Bank of India Vs. Manju Khera Page No.11/11