Delhi District Court
Uco Bank vs Devender Kumar Sharma @ Devinder Kumar ... on 12 January, 2022
Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 97704/16
In the matter of :
UCO Bank
4/2B, Near Deligh cinema,
Asaf Ali Raod,
New Delhi110002. ...PLAINTIFF
VERSUS
1. Devender Kumar Sharma @ Devinder Kumar Sharma
S/o Sh. Horam sharma @ Horam Singh Sharma
R/o House No. 13, Gali No. 18,
Main Market, Near Shiv Mandir,
Chhalera, Sector44, Gautam Budh Nagar,
Noida, U.P. 201301.
Also at:
Mayank Tours & Travels
B77, Sector10, Noida, U.P 201301
Also at:
House No. 136, first Floor,
Gali No. 18, Sector3,
Vaishali, Ghaziabad,
U.P. 201010.
2. Smt. Meenu Sharma,
W/o Sh. Devendra Kumar Sharma
R/o House No. 13, Gali No. 18,
Main Market, Shiv Madir,
chhalera, Sector44 Gautam Budh Nagar,
Digitally signed
HELLY by HELLY FUR
SUIT NO : 97704/16 FUR
KAUR
Date:
Pg 1 of 21
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr.
Noida, U.P. 201301
Also at:
13, Sardrapur Ano,Sector44, Noida, Dadri,
Gautam Budh Nagar, U.P. 201301
Also at:
House No. J810,
JJ Colony, Sector10
Gautam Budh Nagar
Noida, U.P. 201301 ...DEFENDANTS
Date of institution : 09.02.2015
Date of judgment : 12.01.2022
SUIT FOR RECOVERY OF RS.2,83,010/ WITH PENDENTELITE AND
FUTURE INTEREST AND COST
JUDGMENT
1. Vide this judgment, I shall decide a suit for recovery of Rs.2,83,010/.
BRIEF FACTS OF THE PLAINT:
2. That the Plaintiff is a Public Sector Undertaking and imparts banking services to its customers. It is a body corporate constituted under Banking Companies (Acquisition and Transfer of Undertakings Act, 1970. Its head office is situated at 10, B.T.M. Sarani (Brabourne Road), Calcutta700001 and amongst other branches, a Branch at 4/2B, Asaf Ali Road., and having perpetual succession and common seal, with the powers to sue and be sued in its name. That the present suit/Plaint is signed, verified and filed by the Manager/acting Principal Officer of the Plaintiff Bank, who is well Digitally signed SUIT NO : 97704/16 HELLY by HELLY FUR KAUR Pg 2 of 21 FUR Date:
2022.01.12 KAUR 16:45:49 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. conversant with the facts and circumstances of the case and is in a position to depose about the correctness or otherwise of the facts stated in the present cause. Hence, he is competent, authorized and empowered to sign, file, verify and continue with the present suit, all types of pleadings, vakalatnamas, affidavits, execution and other applications as well as any other document and further to do all such acts and deeds as may be required for legitimate ends, in terms of authority letter dated 03.09.1980. That the Defendant No. 1 is the principal borrower and the Defendant No. 2 is the personal guarantor who had guaranteed the due repayment of the entire outstanding dues of the bank under the Financial Assistance lent and advanced by the Plaintiff Bank to the Defendant No.1, together with interest and other charges. The Defendant No.2 is the coobligant and her liability to repay the outstanding dues of the bank continues till the liabilities of the principal borrower/Defendant No.1 are not entirely liquidated to the satisfaction of the Plaintiff Bank. Besides this, the Defendant No.1 is also the Hypothecator who had hypothecated the vehicle (Car) bearing registration No. UP16BT6136, Make Maruti EECO, bearing chassis No. MA3ERLF1SOO294289, Engine No.G12BN270461, (for short, hereinafter called as "Said Car") in favour of the Plaintiff Bank to secure the repayment of the said financial assistance granted to and availed by them to purchase Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 3 of 21 KAUR 2022.01.12 16:45:57 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. the aforesaid Car. The Defendants hereof are liable to repay the entire claims of the Plaintiff Bank either jointly and/or severally, coextensively and continuously. That pursuant to the loan application dated 11.02.2013 of the Defendant No.1, the Plaintiff Bank sanctioned a Car Loan of Rs.3,50,000/ (Rs. Three Lacs Fifty Thousands Only) (for short, hereinafter called and referred to as the "Said Laon") to the Defendants for purchase of said Car. The said Loan was repayable in 84 equal monthly installments of Rs.8960.00 (Rs. Eight Thousand Nine Hundred & Sixty only) each and first such installment was due and payable on or before 07.04.2013 and the subsequent installments were due and payable on or before the seventh day of each month, against the hypothecation and charge of said Car and personal guarantee of Defendant No.2 hereof. That accordingly the Defendants had executed and delivered the loan documents for valuable consideration such as Demand Promissory Noted dated 11.03.2013, Letter of Waiver dated 11.03.2013, Agreement for Advance to Road Transport Operators dated 11.03.2013 and CIBIL Declaration executed by Defendants no.1 & 2. That the plaintiff Bank vide pay order bearing No.536846 dated 11.03.2013, paid Rs.332867.00, in favour of M/s. Regent Autolinks Pvt. Ltd. towards the purchase of said Car. That Defendants had agreed to repay and discharge all the moneys viz. Principal amount & Digitally signed HELLY by HELLY FUR KAUR SUIT NO : 97704/16 FUR Date:
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. interest by way of 84 equal monthly installments of Rs. 8960.00 each and first such installment was due and payable on or before 07.04.2013 and the subsequent installments were due and payable on or before the seventh day of each such month. Besides this, they were also under obligation to pay all costs and other charges as may be levied on account of contractual and legal obligations. That the defendant no.1 had hypothecated the vehicle (said car) bearing registration No.UP16BT6136 make Maruti EECO being purchased from the financial assistance of said loan. That the Defendant No.1 duly availed and utilized said loan through his loan account (hereinafter called and referred to as "the said account"), being opened and operated upon by the Defendant No.1, in the books of accounts of the Plaintiff Bank, being kept and maintained by the Bank, in the ordinary and usual course of Banking business. That the Defendant at the time of the seeking the said loan assistance(s), had agreed that they would strictly adhere to the financial discipline of the Bank and would not give any chance of complaint. However, in sheer breach of contractual obligations, the Defendants did not adhere to the financial discipline and have miserably failed to repay, liquidate & adjust the outstanding dues, of the Plaintiff Bank under the said loan. That as per the Loan Agreement, the Defendants were under absolute obligations to make the said Car available to the Plaintiff Digitally signed by HELLY HELLY FUR KAUR FUR Date:
SUIT NO : 97704/16 KAUR 2022.01.12
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. Bank for inspection and also to keep the hypothecated Car duly maintained, insured and to park the same at the notified place as per agreement. They are further under irrevocable obligation not to create any third party interest of any nature and/or part with possession thereof. Apart from this, as per the contract the Plaintiff Bank has been entitled to take the actual and physical possession of the hypothecated Car on a single default of repaying the aforesaid installment of loan. Further, the Plaintiff Bank is entitled to sell the hypothecated Car to recover its dues. That manifestly, the said loan and the entire debts there under, are secured with the hypothecation of said car and therefore, the Plaintiff Bank is entitled to auction the hypothecated car and to appropriate the net sale proceeds of such auction to recover its debts. That the Plaintiff Bank repeatedly requested the Defendants and in particular the Defendant No.1 to bring , show and make available the said Car to the Plaintiff Bank for inspection and also made demands/to regularize "the said account' by making personal visits as well as recall notice dated 15102014 but all such efforts have proved a futile attempt as the defendants deliberately neither have liquidated nor regularized nor brought/made available the said Car for inspection. Consequently, the "said account" has become irregular, sticky and dormant and ultimately, has been classified as N.P.A. on 30.09.2014. That constrained with the classification Digitally signed HELLY by HELLY FUR KAUR FUR Date:
SUIT NO : 97704/16 KAUR
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. and declaration of the loan account as NPA as aforesaid, the Plaintiff Bank have served the demand Notice dated 24.10.2014 under Section 13(2) of Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 upon the Defendants No.1 & 2, whereby the Defendants were called upon to pay the entire outstanding dues of the Bank along with interest as may be applicable vide Indian Postal Services, by way of registered AD in terms of the annexed receipts. That the certified copy of the Statement of Account of the "said account", showing entire outstanding debts, duly maintained by the Plaintiff Bank in the ordinary and usual course of it business and certified in accordance with Banker Books of Evidence Act read with Information Technology Act, 2000 as amended upto date, annexed hereto. The said statement of account contains all withdrawals, charges/interests levied and deposits made by and/or for and on behalf of the Defendant No.1, in their "said account". The said statement of account further contains the true credit and debit entries, being made during normal course of its business, in as much as, all the payments by way of advances allowed to the Defendant No.1 and interest accruing thereon at the contractual rate with agreed rests and also all other agreed incidental costs, charges and expenses etc. Are duly debited and the payments made by the Defendant No.1, towards part liquidation of his Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date:
Pg 7 of 21 2022.01.12 KAUR 16:46:27 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. liabilities were/are correctly credited to the "said account" on their respective dates. That since the said account of the Defendant No.1 is declared NPA, therefore, the interest and all other levies accrued thereafter since date of NPA has not been vouched safe and shown in the said account, as per the accounting procedure & norms of R.B.I and Bank, but the Plaintiff Bank has not waived/relinquished the same and the Bank hereby claims in the present Petition and the same is shown reflected in the notional statement of account as annexed hereto. That the Defendants in their respective capacity of borrower and hypothecator and guarantor, are thus jointly, severally, coextensively and continuously liable to pay an aggregate sum of Rs.2,83,010/ (Rupees Two Lacs Eighty Three Thousand & Ten Only) to the Plaintiff Bank, on the date of filing of the claim/application to the Plaintiff Bank along with all costs, charges and expenses of this application as well as pendentelite and future interest at the rate(s) per annum with applicable/agreed rests, from the date of filing of this claim till the actual and final realization thereof:
Particulars Amount in Lacs (Rs.)
Amount outstanding in the Loan 274741.00
Account till NPA
Accrued interest till 01.02.2015 8269.00
Total 283010.00
Digitally
signed by
HELLY HELLY
FUR KAUR
FUR
SUIT NO : 97704/16 KAUR
Date:
2022.01.12
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16:46:35
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. That the Plaintiff Bank is entitled for the rate of interest as agreed by the Defendants pursuant to the contractual terms as per loan documents annexed herewith. The agreed rate of interest was subject to variance from time to time as per RBI directives and accordingly, the Plaintiff Bank has applied the rate of interest from time to time, accordingly. The Plaintiff Bank is also entitled to charge penal rate of interest, in the irregular accounts, i.e., said account in term of the agreement and as such the Defendants are also liable to pay penal interest according to the agreement and accordingly, the Defendants are liable to pay the said rate of interest @ 10.20% per annum on the entire debts of the Plaintiff Bank and same is being claimed in the present application. That besides above, they are also liable to pay with all costs, charges and expenses of this suit as well.
WRITTEN STATEMENT OF THE DEFENDANT:
3. The defendant filed written statement and has controverted the claim of the plaintiff as set up in plaint while contending that that the suit must have been filed against Sh. Devendra Kumar Sharma, the defendant who had taken loan from the plaintiff bank and that defendant has not backed out from repayment of the concerned loan. So far as impleadment of Ms. Meenu Sharma is concerned, she is the wife of the defendant and that she is only the surety on behalf of defendant and legally the surety can be sued Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 9 of 21 KAUR 2022.01.12 16:46:42 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. only when the main defendant backs out from repayment. That the plaintiff bank has presented only half side of the picture i.e. grant of the loan while the repayment part has not been fully and properly presented. The plaintiff can not be allowed to get away with the figures of its loan only but should present the complete picture or repayment by the defendant and out of that amount how much has been adjusted towards the Principal amount and how much has been adjusted towards interest of the same. Further that the plaintiff may be asked to amend the array of the parties impleaded in the present case properly without any ambiguity.
4. In reply on merits, it is stated that the contents of the para 1 and 2 of the plaint are related to introductory facts of the plaintiff which do not require any reply. It is admitted that defendant No.1 is the only borrower but so far as defendant no.2 as per own admission of plaintiff is only a guarantor and hence it is the defendant No.1 who has to be addressed the repayment of loan and the guarantor can be sued only when the borrower backs out from repayment of the loan. It is denied that that the loan has to be repaid entirely to the satisfaction of the bank while in reality the same has to be paid / repaid only as per the law and rules established and the bank cannot go beyond them. Further hypothecation of the vehicle by the defendant to the bank is not in question but not under the self framed rules and that no Digitally signed by HELLY HELLY FUR SUIT NO : 97704/16 FUR KAUR Date:
Pg 10 of 21 2022.01.12 KAUR 16:46:49 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. loan authority is authorized to confiscate the hypothecated object against the various laws and rules laid down by the Hon'ble Apex Court and other Courts of the land. Further, application of the loan and its sanction by the plaintiff bank is accepted by the defendant. That the contents of para no.5 of the plaint are not being questioned at this stage since they are already in the custody of the plaintiff bank and the contents of the para no.6 of the plaint have been stated to be related to certain receipts, pay orders, and proforma invoice which plaintiff bank as not presented with the accounted statement. That the contents of para no.7 of the plaint have been admitted so far as the equal EMIs are concerned but not with regard to the so mentioned cost and charges which the plaintiff bank can not levy without constraints to the established law and rules. That the contents of para no.8 of the plaint are have already been replied in the earlier para. That the contents of the para no. 9 of the plaint are superfluous without any consequence irrelevant and hence denied. That the contents of para no.10 of the plaint are denied with full force as the phrases like financial discipline of the bank are beyond the comprehension of a simple defendant taking loan from a bank unless and until the same are defined and explained on paper. That the contents of para no 11 and 12 of the plaint are absolutely wrong, unfounded and frivolous and hence denied in extenso since the Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 11 of 21 KAUR 2022.01.12 16:46:57 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. hypothecated vehicle can be confiscated and sold only an accordance with the directions given by this Hon'ble Court. That the contents of the para no.13 of the plaint have been complied with from time to time. That the contents of para no.14 of the plaint are wrong and denied in the absence of the proof of delivery. That the contents of para no.15 of the plaint related to the statement of account has been prepared by the plaintiff and hence the defendant has no control over them and as such the same can not be admitted here. That the position of the defendant with regard to the contents of para no.16 is again the same as contained in para no.15 of the reply. That the contents of the para no.17 of the plaint are most unfounded, wrong, vexatious and hence denied since they do not confirm to any lawful position where prior to the defendant's refusal, bankruptcy or death in the event of repayment of the loan, the guarantor can not be impleaded or touched upon. Again, so far as the outstanding amount in the present plaint is concerned the same has to be recalculated and verified as per the various repayments made by the defendant who has taken the loan. That the contents of para no. 18 of the plaint are absolutely wrong, unfounded and frivolous and hence denied in toto. That the contents of the para no.19 of the plaint are absolutely wrong, unfounded and mischievous since the plaintiff who took the loan faltered with regard to only a few EMO regarding Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 12 of 21 KAUR 2022.01.12 16:47:05 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. which the plaintiff bank never gave him any notice while the defendant himself filed applications with the bank which have not been brought on record and as such the plaintiff bank is guilty of concealing material facts from the Hon'ble Court. Here, it is pertinent to mention that the defendant could not repay a few EMI since his vehicle had to be removed from the road in view of the engine problem. That the contents of para no.20 of the plaint pertains to the jurisdictions of this Hon'ble Court which are admitted most humbly. That the contents of para no. 21 of the plaint are with regard to the court fee has to be scrutinized strictly. REPLICATION:
5. The plaintiff filed replication to the written statement of defendant and has reiterated and reaffirmed the contents of the plaintiff. It is submitted that no half side picture is presented and the repayments whatsoever, if any are duly reflected in the statement of account. The adjustment of the repayments is duly reflected in the statement of account. However, it may be noticed that as per the terms and conditions of the loan, the amounts towards repayment are firstly appropriated towards the interest and (other charges, if any) and the balance remaining balance is adjusted towards the principal. It is further submitted that plaint is correct and maintainable. The borrower and guarantor relationship qua the bank is admitted and that the Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 13 of 21 KAUR 2022.01.12 16:47:12 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. liability of the defendants is joint and/or several, coextensive and continuous. The loan repayment is asked for as per the terms and conditions of the loan and not any otherwise satisfaction of the bank. The hypothecation of vehicle is not denied. There are not self framed rules of the bank but the same are framed as per RBI guidelines. The confiscation of the vehicle is legal and permissible under the law. ISSUES:
1. Whether plaintiff is entitled to the decree of Rs.
2,83,010/ against the defendants with joint and several liabilities? OPP.
2. Whether plaintiff is entitled to the possession, auction and appropriation of the hypothecated car as stated in prayer(ii) of the plaint?OPP.
3. Whether plaintiff is entitled pendentilite and future interest from the date of the present suit till realization, if yes, at what rate and for what period, as the case may be? OPP.
4. Relief.
PLAINTIFF'S EVIDENCE:
6. In order to prove its case, plaintiff examined Sh. R.K. Sondhi, Branch Manager of plaintiff bank whose examinationinchief is by way of affidavit Ex.PW1/A. PW1 relied on following documents.
1. Ex.PW1/1 True copy of authority letter dated 03.09.1980.
Digitally signed by HELLY HELLY FUR KAUR FUR SUIT NO : 97704/16 KAUR Date:
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2. Ex.PW1/2 (Colly) Loan Application dated 11.02.2013 with supporting documents and self attested identity cards.
3. Ex.PW1/3 Demand Promissory Note dated 11.03.2013.
4. Ex.PW1/4 Letter of Waiver dated 11.03.2013.
5. Ex.PW1/5 Agreement for advance to road transport operators dated 11.03.2013.
6. Ex.PW1/6 CIBIL Declaration executed by defendant no. 1 & 2.
7. Ex.PW1/7 Copy of Receipt dated 20.12.2012 for Rs. 50,000. (original is in possession of defendant).
8. Ex.PW1/8 Copy of Receipt dated 17.01.2013 for Rs. 40,000. (original is in possession of defendant).
9. Ex.PW1/9 Receipt dated 02.03.2013 for Rs. 50,000.
10. Ex.PW1/10 no document as left in the Affidavit Ex.PW1/A.
11. Ex.PW1/11 Recall notice dated 15.10.2014 alongwith its original postal receipt.
12. Ex.PW1/12 Demand notice dated 24.10.2014 alongwith postal receipts.
13. Ex.PW1/13 Statement of Account.
14. Ex.PW1/14 Notional statement of account.
15. MarkA Copy of Performa invoice dated 05.03.2013.
Digitally signed by HELLY HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 15 of 21 KAUR 2022.01.12 16:47:29 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr.
16. MarkB Copy of tax/vehicle invoice dated 21.12.2012.
17. MarkC Copy of pay order bearing no. 536846 dated 11.03.2013.
18. MarkD Receipt dated 11.03.2013 for Rs. 3,32,867.00.
19. MarkE Registration certificate & motor insurance cover note dated 12.03.2013.
7. I have heard the arguments and perused the record.
ISSUE NO.1 Whether plaintiff is entitled to the decree of Rs.2,83,010/ against the defendants with joint and several liabilities? OPP.
8. In the plaint it is the claim of the plaintiff that defendant No.1 is the principal borrower and defendant No.2 is the guarantor of the loan advanced to defendant No.1 against loan application dated 11.02.2013. Further that car loan was sanctioned by the plaintiff for an amount of Rs.3,50,000/ repayable in 84 EMIs starting from 07.04.2013. For this purpose, various documents were executed by defendants. In particular it is averred that defendants hypothecated car bearing No.UP16BT6136 of make Maruti EECO. Further that defendant did not follow the financial discipline and repay the installments regularly due to which the loan account was classified as NPA on 30.09.2014. Also that a demand notice was served upon defendants for calling them to repay the entire outstanding dues of the Digitally signed HELLY by HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 16 of 21 2022.01.12 KAUR 16:47:35 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. loan. Plaintiff has brought relevant documents in the evidence supporting the averments of the plaint including loan application form (Ex.PW1/2 colly.), demand promissory note (Ex.PW1/3), Copy of receipts (Ex.PW1/7 to Ex.PW1/9), Demand notice (Ex.PW1/12), Statement of accounts (Ex.PW1/13 & Ex.PW1/14) and Invoice of the vehicle (MarkB). Since the defendant did not turn up to cross examine the witness, i t is trite law that in absence of cross examination, testimony as it is can be deemed as correct. At this juncture, judgment of Hon'ble Hgh Court of Delhi in M/s Eco Lab Inc. v. Eco Labs Ltd. 2011 (185) DLT 664 may be referred, wherein it was held:
Since the plaintiff's evidence has gone unrebutted as the defendant has also failed to crossexamine the witness of the plaintiff, the evidence filed by the plaintiff is liable to be taken as correct.
9. Even otherwise, it is pertinent to note that in the written statement filed by the defendant, averments of the plaint have been denied evasively. No specific or plausible defence transpires from the close perusal of the written statement. It has been admitted in the written statement that the loan was advanced to Sh. Devendra Kumar Sharma i.e. defendant No.1 and defendant No.2 is merely a Digitally signed HELLY by HELLY FUR KAUR SUIT NO : 97704/16 FUR Date: Pg 17 of 21 2022.01.12 KAUR 16:47:42 +0530 Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. guarantor. The liability has been vaguely denied since it is simply stated that defendant defaulted only few EMIs, however, the plaintiff never gave them any notice and that plaintiff has not shown the proper picture in the present suit. In view of these averments, it can be safely said that defendants have impliedly admitted the case of the plaintiff. More specifically because they did not turn up to lead evidence to show the complete picture if the plaintiff has not shown the correct picture before this court. Therefore, court finds favour with the claims of the plaintiff which are rather well supported by evidence. Besides, claim of the defendants that defendant No.2 is not liable being merely a guarantor is meritless in view of Section 128 of Indian Contract Act, under which liability of surety is coextensive with principal borrower.
10. Hence, this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO.2 Whether plaintiff is entitled to the possession, auction and appropriation of the hypothecated car as stated in prayer(ii) of the plaint?OPP.
11. It is a matter of common and legal sense that hypothecation is for the Digitally signed by HELLY HELLY FUR KAUR FUR Date:
SUIT NO : 97704/16 KAUR 2022.01.12
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. purpose of security of a loan or debt. Further that in case of any default in the repayment of the loan, the lender can repossess the hypothecated vehicle as per the terms of agreement either by way of intervention of the court or on its own, as the case may be. However, the sole purpose for repossession is recovery of loan only.
12. The above observation is rather fortified by Ex.PW1/5 which is the document relied upon by the plaintiff itself wherein it was agreed under clause 7 between plaintiff and defendant that in case of sale of vehicle, the bank will retain expenses incurred by it for taking possession and for selling out of the proceeds of the sale and thereafter, shall retain the sum sufficient to satisfy the loan with interest and all other dues along with other costs and charges and shall pay the balance to the borrower. This clause is clearly indicative of the fact that the ownership of the vehicle remains with the borrower and it is only for the purpose of security of loan amount the plaintiff bank got the vehicle hypothecated.
13. Accordingly, since the principal amount along with the interest has already been decided in favour of the plaintiff under issue No.1, it Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. would be unjust enrichment of the plaintiff if it is also allowed to take the possession of the hypothecated vehicle as well. Nevertheless, this would not amount to any hindrance in attachment of property of defendants including the vehicle at the time of execution.
14. Hence, this issue is decided against the plaintiff.
ISSUE NO.3 Whether plaintiff is entitled pendentilite and future interest from the date of the present suit till realization, if yes, at what rate and for what period, as the case may be? OPP.
15. As far as pendentelite and future interest is concerned, i t is trite law that as per Section 34 of CPC a court can grant a rate of interest on the principal sum adjudged from the date of the suit till the date of decree as it deems reasonable and is not bound by the interest claimed by the plaintiff. Further, as per the same provision, the future interest i.e. from the decree till realization can be granted at such rate not exceeding 6% per annum except in case of commercial transactions wherein the rate shall not exceed contractual rate of interest, in default at a rate at which moneys are lent or advanced by Nationalized Bank.
16. In view of the above observations, it is considered reasonable to grant Digitally signed HELLY by HELLY FUR KAUR FUR Date:
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Uco Bank v. Devender Kumar Sharma @ Devinder Kumar Sharma & Anr. interest at the rate of 6% per annum from the date of the suit till realization.
17. Hence, the issue is decided in favour of plaintiff and against the defendant.
RELIEF
18. Accordingly, in view of the above discussion hereinabove, suit of the plaintiff is decreed for a sum of Rs.2,83,010/ with costs of the suit along with simple interest @ 6% p.a. (simple) is awarded to the Plaintiff from the filing of the present suit till payment/realization. The defendants are jointly and severally liable to pay the decreetal amount along with interest.
19. Decree sheet be prepared accordingly. Digitally signed
HELLY by HELLY FUR
KAUR
20. File be consigned to Record Room. FUR Date:
2022.01.12
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Announced in the open court (Virtually) (HELLY FUR KAUR)
on 12.01.2022 Civil Judge - 08 (Central)/Delhi
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