Delhi District Court
Through Its Chief Manager/Ar/ vs Vishal on 12 July, 2023
IN THE COURT OF ADDITIONAL SENIOR CIVIL
JUDGE, DISTRICT SHAHDARA, KARKARDOOMA
COURTS, DELHI.
Presided by: Mr. Himanshu Raman Singh.
Civil Suit No. 544 of 2021
Central Bank of India
A body corporate duly constituted under Banking Companies
(Acquisition and Transfer of undertaking Act, 1980)
Having its Corporate Office at:-
Chander Mukhi, Nariman Point,
Mumbai-400021.
Branches amongst others at:-
Savita Vihar, 6, Local Shopping Complex,
Delhi-110095.
Through its Chief Manager/AR/
Constituted Attorney. ..... Plaintiff
Versus
1. Vishal
(Employee No.51903976/Ward No.260)
Son of Shree Ram,
Resident of House No.D-177/6,
D-Block,Harsh Vihar, Delhi-110093.
2. Manoj Kumar
(Employee No.51804192/Ward No.217)
Son of Mahavir Singh,
Resident of House No.6,
Priyadarshni Colony, Jamuna Bazar,
Hanuman Mandir, Opposite Nigam Bodh,
Delhi-110006.
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 1 of 17
3. The Office Superintendent
(Employer of the defendant no.1)
DEMS Department-EDMC, Shahdara-North Zone,
East Delhi Municipal Corporation,
(Now Municipal Corporation of Delhi),
Keshav Chowk, Near Shyam Lal College.
Shahdara, Delhi-110032.
4. The Office Superintendent
(Employer of the defendant no.2),
DEMS Department-EDMC Shahdara (South) Zone
East Delhi Municipal Corporation,
(Now Municipal Corporation of Delhi)
Zonal Office-Shahdara South,
Karkardooma, Shahdara, Delhi-110032.
...... Defendants
SUIT FOR RECOVERY OF RS.1,67,400/- (RUPEES
ONE LAKH SIXTY SEVEN THOUSAND FOUR
HUNDRED ONLY) AND PERMANENT AND
MANDATORY INJUNCTIONS
Date of Filing : 23.06.2021.
Date of Judgment : 12.07.2023.
Decision : Ex-parte Decreed.
JUDGMENT
1. The present suit has been instituted by the plaintiff- bank seeking the following prayers :-
"(i) Money decree for a sum of Rs.1,67,400/- (Rupees One Lakh Sixty Seven Thousand Four Hundred Only) in favour of the plaintiff-bank and against the defendants no.1 and 2 jointly and severally along with pendete-lite and future interest at the rate of 11.10% per annum compounded monthly and penal interest at the rate of 2% simple from the date of filing of the suit till realization.Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 2 of 17
(ii) Decree of permanent injunction against the defendant nos.1, 2, 3 and 4 jointly and severally thereby restraining them from transferring/ releasing/ disbursing/ misappropriating/ receiving all or any of the salaries and or terminal benefits and/or employment dues to the defendant nos.1 and 2, without prior clearing the entire decretal amount/outstanding dues of the plaintiff-bank.
(iii) Decree of mandatory injunction against the defendant nos.1 to 4 jointly and severally, thereby directing it render all the details of all the salaries and/or terminal benefits and/or employment dues etc. of defendant no.1 and 2, which are released/disbursed or/and to be disbursed/released to the plaintiff-bank and to release/disburse/pay/remit the part thereof the same for clearing the entire decretal amount/outstanding dues of the plaintiff-bank."
2. The brief facts of the case as narrated by the plaintiff are as under:
2.1. It has been stated that the plaintiff-bank is one of the Public Sector Bank and body corporate constituted and functioning under the Banking Companies (Acquisition and Transfer of the Undertakings) Act, 1980. It is stated by the plaintiff that defendant nos.1 and 2 are employed with East Delhi Municipal Corporation, now, Municipal Corporation of Delhi under the defendants nos.3 and 4 who are their controlling authorities/officers respectively. The defendant no.1 works in Shahdara, North Zone of EDMC (now MCD) under the defendant no.3 whereas the defendant no.2 works in Shahdara, South Zone under the defendant no.4.Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 3 of 17
2.2. It is stated that the defendant nos.1 and 2 are employed in East Delhi Municipal Corporation (now Municipal Corporation of Delhi) under the defendant nos.3 and 4 who are controlling Authorities/Officers respectively.
The defendant no.1 works in Shahdara North Zone under defendant no.3, having Employee No.51903976/Ward No.260, whereas defendant no.2 works in Shahdara South Zone under the defendant no.4, having Employee No.51804192/Ward No.217.
2.3. It is stated by the plaintiff that defendant no.1, the borrower along with the defendant no.2 had approached for grant of personal loan of Rs.5 lakhs for the defendant no.1 in the month of October, 2016 and the defendant no.2 had offered to stand as the guarantor for the repayment of outstanding dues of the said personal loan. As such, under the Personal Loan Scheme, the defendant no.1, the borrower along with the defendant no.2 had submitted the Loan Application dated 24.10.2016 along with Guarantor's Consent Letter dated 24.10.2016 besides photocopies of the salary records, Aadhaar Card and PAN Card etc., under their signatures for the consideration of grant of loan by the plaintiff-bank.
2.4. It is stated that the plaintiff-bank had considered Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 4 of 17 the said loan applications, Guarantor's Consent Letter and all other documents submitted by the defendant no.1, the borrower along with the defendant no.2 on 24.10.2016 and sanctioned a personal loan on 24.10.2016, the details of which are stated as under:-
"Personal Loan:-Rs.5.00 lakhs against the personal guarantee of Manoj Kumar son of Shri Mahavir Singh repayable along with interest at the rate of 12.35% per annum compounded monthly (floating), to be repaid in 48 Equated Monthly Installments of Rs.13,253/- each per month with effect from November, 2016."
2.5. It is stated by the plaintiff-bank that in consideration of grant of above-said personal loan of Rs.5.00 lakhs by the plaintiff-bank, the defendant no.1 had executed the following loan and security documents in favour of the plaintiff-bank on 24.10.2016:
(i) Term Loan Agreement dated 24.10.2016.
(ii) Letter Consent Clause dated 24.10.2016.
(iii) Letter of Waiver of Interest Variation dated 24.10.2016.
(vi) Letter of deposit of advance cheques dated 24.10.2016.
(viii) Undertaking dated 24.10.2016.Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 5 of 17
2.6. It is stated by the plaintiff-bank that in order to secure the aforesaid term loan in favour of the plaintiff-bank, the defendant no.2 had also executed his personal and continuing guarantee dated 24.10.2016 along with consent clause letter dated 24.10.2016 in favour of the plaintiff-bank.
2.7. It is stated by the plaintiff that in order to secure the outstanding dues of his aforesaid loan account, the defendant no.1 had also pledged/hypothecated his newly purchased LIC Policy/LIP No.127726087 dated 02.11.2016 in favour of the plaintiff-bank on 21.07.2017 by depositing Original LIC Policy and Receipt thereof however he did not complete further formalities with LIC to assign the same in favour of the plaintiff-bank despite repeated requests. Moreover on 21.07.2017, the defendant no.1 had also submitted duly executed and signed with seal letter of undertaking dated 21.07.2017, from the office of the defendant no.3 through Admn. Officer had undertaken to remit/deduct the salary/terminal benefits to the plaintiff-bank. As such the vide the said letter of undertaking dated 21.07.2017, the defendant no.3 has made itself liable for the clearance of the outstanding dues in the aforesaid loan account to the plaintiff-bank. The plaintiff-bank has the prime charge/lien over the salary as well as terminal/death benefits of the defendant no.1 as per letter of undertaking Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 6 of 17 dated 21.07.2017.
2.8. It is stated by the plaintiff that the defendant no.1 was required to adhere to the financial discipline of the plaintiff-bank by making regular installments/payments of EMI to the said loan account. Meanwhile, the plaintiff-bank had issued various reminders including dated 19.08.2017, 04.09.2017 etc., to the defendant no.1 thereby asking him to clear the over-dues in his loan account. However, the defendant no.1 continued to make irregular installments/payments in his loan account till 27.01.2020, by way of transfers or deposits etc. Thereafter, no payment was received in the loan account of the defendant no.1.
2.9. It is also stated by the plaintiff that the office of the defendant no.3 has not complied with the terms and undertaking as rendered to the plaintiff-bank vide its letter of undertaking dated 21.07.2017. As such, the plaintiff-bank had got issued the Legal Notice dated 03.02.2021 against the defendant nos.1 to 4. However, no proper response was given by any of them. Meanwhile, the plaintiff-bank also moved RTI application before the defendant nos.3 and 4 in the month of February/March, 2021. However, the office of the APIO under the defendant nos.3 and 4 had refused to cooperate by making vague and frivolous excuses to divulge Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 7 of 17 the information about the salary/terminal benefits qua the defendants no. 1 and 2. As such, the necessity arises to implead the defendant nos.3 and 4 as a necessary parties in the present suit to seek the urgent interim reliefs in the form of the ad-interim temporary injunction/stay order against the defendant nos.3 and 4 as it has been refused by them to comply with the letter of undertaking dated 21.04.2017 by not clearing the outstanding dues of the plaintiff-bank out of the salary/terminal of the defendant nos. 1 and 2.
2.10. It is also stated that only reliefs of the permanent injunction and mandatory injunctions along with urgent interim reliefs through interim applications, are being sought against the defendant nos.3 and 4 besides other defendants, therefore, no prior notice for filing the present suit for the requisite period of two months or 60 days is given/required as per the provisions of Section 80 CPC or Section 478(3) of DMC Act as only reliefs of injunctions are sought against the defendant nos. 3 and 4 for appropriate compliance of the letter of undertaking dated 21.07.2017 and no recovery of money is being sought against the defendant nos.3 and 4., wings of EDMC (Now, MCD) Meanwhile since the over- dues in the aforesaid loan account had accumulated and as such the aforesaid loan account of defendant no.1, borrower was classified as NPA on 31.03.2021 as per RBI guidelines.
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 8 of 17The plaintiff-bank has not debited the interest including penal interest in the said loan account since 01.04.2021 which has been transferred to the Memorandum of Interest being maintained by the plaintiff as per the accounting procedure adopted by the plaintiff-bank. The amount of unapplied interest has been included in the present suit of the plaintiff- bank which it is legally entitled to and has right to recover the same from the defendant as unapplied interest. The penal interest has been charged on simple basis at the rate of 2% per annum by the plaintiff-bank from 01.04.2021. It is also sated that the interest/compound interest has been charged at such rates and capitalization has been made at such periodical rest as permitted by the RBI and the amount claimed do not counter run to its directives.
2.11. It is also stated that the defendant nos.3 and 4 being the Wings of EDMC (now, MCD) are the employment controlling authorities/officers of the defendants no.1 and 2. The plaintiff-bank has the prime charge/lien over the salaries terminal benefits of the defendant no.1 as per letter of undertaking dated 21.07.2017 and those of the defendant no.2. Moreover, there is a subsisting and continuing apprehension to the plaintiff-bank since March 2021 that the defendant nos. 3 and 4 may release the entire salaries and or dues and terminal benefits of the defendant nos.1 and 2 in Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 9 of 17 contravention of Letter dated 21.07.2017, in collusion with its superior officials without prior clearing the outstanding dues in the aforesaid loan account of defendant no.1. As such the plaintiff-bank would be deprived of its prime security i.e. salaries and or terminal benefits etc. in the aforesaid loan at the hands of all the defendants, especially due to violation by the office of the defendant no.3 and 4.
2.12. It is stated by the plaintiff that the necessity arises to take immediate/urgent interim measures besides seeking permanent as well as mandatory injunctions against the defendants no.1 to 4. Since, the aforesaid salaries and terminal benefits are meant to be partly used to reduce the outstanding liability in the aforesaid personal loan of the defendant no.1 and if the defendants get succeeded in their mala fide intention and illegal motive to misappropriate their salary salaries and dues without prior clearance of the outstanding dues in favour of the plaintiff-bank and in connivance with the officials of the defendant no.3 and 4, it would suffer irreparable loss of public money at the hands of the defendants no.1 to 4. As such, the balance of convenience lies in favour of the plaintiff bank as it has prime and first charge over the salaries, due and or terminal benefits and/or employment dues of the defendant nos.1& 2.
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 10 of 172.13. Moreover, the plaintiff-bank is also claiming the urgent interim reliefs in the form of ad interim injunction against the defendants no.1 to 4 qua the salaries, dues and or terminal benefits and employment dues of the defendant nos. 1 and 2, by moving the appropriate interim applications under CPC along with the present suit/plaint. As such, under these circumstances, the cause of action is subsisting in favour of plaintiff-bank to claim the relief of permanent injunction besides temporary/ad interim injunction and attachment before judgment in order to secure its dues in the aforesaid loan against the defendants no.1, 2 and 3 and 4. Moreover, the suit amount is less than Rs.3 lakhs and as such, the provisions of Commercial Courts Act, would not be applicable upon the present suit despite being a commercial dispute.
2.14. It is stated by the plaintiff-bank that as on the date of filing of the present suit the following amounts are due and payable by the defendants no.1 and 2 jointly and severally to the plaintiff-bank:-
Personal Loan Account No. 3972618237 A Amount due and outstanding along Rs. 1,47,240.82 ps with interest debited upto 31.03.2021.
B Towards Bank and other charges. Rs. 7,750/-
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 11 of 17C Towards un-applied interest from Rs. 11,205/18 ps 01.04.2021 till 07.06.2021 at the applicable rates presently at the rate of 11.10% per annum compounded monthly.
D Towards penal interest from Rs. 1,204/-
01.04.2021 till 07.06.2021 at the rate of 2% per annum simple.
Total Rs. 1,67,400/-
2.15. It is stated by the plaintiff that as such an amount of Rs.1,67,400/- is due and outstanding against the defendant as on the date of filing of the present suit. The statement of account containing details of plaintiff-bank's claim are being filed with this suit, which are duly certified under Bankers Book Evidence Act. The plaintiff-bank is entitled to the said amount of Rs.1,67,400/- along with pendete lite and future interest at the rate of 11.10% per annum compounded monthly along with penal interest at the rate of 2% per annum simple from the date of the filing of the present suit till realization from the defendants no.1 and 2 jointly and severally besides cost of litigation etc.
3. As no one appeared on behalf of defendant despite service, the defendant was proceeded ex-parte vide order dated 03.11.2022.
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 12 of 174. In order to prove the case of the plaintiff, Mr. Shashi Prakash, Chief Manager, Central Bank of India, Savita Vihar Branch was examined as PW-1 who led his ex- parte evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:-
Ex. PW1/1 Copy of Power of Attorney.
(OSR)
Ex. PW1/2 Original Loan Application daed
24.10.2016 signed by Defendant Nos.1
and 2.
Ex. PW1/3 Original Gurantor's Consent Letter
dated 24.10.2016 signed by
defendant No.2.
Ex. PW1/4 Original Cent personal Loan Application
Form No.II dated 24.10.2016 signed by
defendant nos.1 and 2.
Ex. PW1/5 Sanction Advice dated 24.10.2016.
Ex. PW1/6 Original Term Loan Agreement dated
24.10.2016.
Ex. PW1/7 Original Letter of Consent Clause dated
24.10.2016.
Ex. PW1/8 Original Letter of Interest Variation dated
24.10.2016.
Ex. PW1/9 Original Letter of Deposit of Advanced
Cheque, dated 24.10.2016.
Ex.PW1/10 Original undertaking dated 24.10.2016.
Ex.PW1/11 Original form of guarantee dated.
24.10.2016.
Ex.PW1/12 Original Letter of Consent Clause
dated 24.10.2016.
Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 13 of 17
Ex.PW1/13 Original Letter of Undertaking dated
21.07.2017.
Ex.PW1/14 Office copies of Demand Letters dated
19.08.2017.
Ex.PW1/15 Office copies of Demand Letters dated
04.09.2017
Ex.PW1/16 Office copy of Legal Notice dated
03.02.2021.
Ex.PW1/17 Original Postal Receipts.
Ex.PW1/18 Office copy of RTI Application dt.
17.02.2021 with original postal
(colly.)
receipt.
Ex.PW1/19 Original reply to Legal Notice dated
12.02.2021 from EDMC (now
MCD)/Defendant No. 3.
Ex.PW1/20 Original reply to RTI Application dated
22.03.2021 from EDMC/
Defendant No. 3.
Ex.PW1/21 Certified Statement of Accounts.
Ex.PW1/22 Memorandum of calculation along with
Certificate under Banker's Books
(colly.)
Evidence Act.
Ex.PW1/23 Certificates by manager in charge of the
computer under Banker's Books Evidence Act.
Ex.PW1/24 Section 65-B of Indian Evidence Act, dated 07.06.2021.
Mark A Photocopies of KYC documents of the defendants.
Mark B Copies of LIC polices and LIC receipts. (colly.) Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 14 of 17
5. Ex-parte plaintiff evidence was closed on 01.02.2023. No defence evidence was led in the matter.
6. I have heard the final arguments and gone through the record carefully.
7. The defendant being ex-parte, the testimony of the witness of plaintiff has remained unchallenged and unrebutted. There is nothing to disbelieve the unrebutted testimony of the witness of plaintiff or to doubt the authenticity of the documents and veracity of the documents exhibited and proved on record. The defendants did not come forward to disprove the case of the plaintiff. The present suit is within limitation. The suit of the plaintiff is, therefore, entitled to be decreed against the defendant. Learned counsel for the plaintiff has argued that plaintiff has duly proved his case by oral as well as documentary evidence on the file.
8. Suit is decreed in favour of Plaintiff. The plaintiff is held entitled to a sum of Rs.1,67,400/- (Rupees One Lakh Sixty Seven Thousand Four Hundred Only). On the question of interest, since the plaintiff has been able to prove that he is entitled to the aforesaid sum, I also find that the plaintiff is entitled to interest. Plaintiff has claimed pendente-lite and future interest thereon at the rate of 11.10% per annum Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 15 of 17 compounded monthly plus penal interest at the rate of 2% per annum from the date of filing of the present suit till the date of its realization of the decretal amount in favour of the plaintiff and against the Defendant. In my opinion, ends of justice shall be served in the case simple interest at the rate of 9% per annum is awarded from the date of filing of this suit till its realization on the aforesaid sum of Rs.1,67,400/- (Rupees One Lakh Sixty Seven Thousand Four Hundred Only). Thus, the plaintiff is awarded simple interest at the rate of 9% per annum to be calculated on the sum of Rs.1,67,400/- (Rupees One Lakh Sixty Seven Thousand Four Hundred Only) from the date of filing of this suit till realization.
9. The plaintiff is entitled for permanent injunction against the defendants nos. 1,2 and 3 jointly and severally thereby restraining them from transferring/ releasing/ disbursing/ misappropriating/ receiving all or any of the salaries and or terminal benefits and/or death employment dues to defendant nos.1 and 2, without prior clearing the entire decretal amount of the plaintiff-bank.
10. The plaintiff is also entitled for decree of mandatory injunction against the defendant nos. 1 and 4 jointly and severally, thereby directing it render all the details Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 16 of 17 of all the salaries and/or terminal benefits and/or employment dues etc. of defendant nos.1 and 2, which are released/disbursed or/and to be disbursed/released to the plaintiff-bank and release/disburse/pay/remit the part thereof the same from clearing the entire decretal amount/outstanding dues of the plaintiff-bank.
11. Plaintiff shall also be entitled to costs of the suit. The present ex-parte suit is decreed with interest in aforesaid terms. Decree sheet be prepared accordingly.
12. File be consigned to Record Room after necessary compliance.
Announced in open court on 12.07.2023.
(Himanshu Raman Singh) Addl. Senior Civil Judge, Shahdara, Karkardooma Court, Delhi/12.07.2023 Civil Suit No: 544 of 2021 Central Bank of India Vs. Vishal & Ors. Page 17 of 17