Delhi District Court
Icici Bank vs Avanish Kumar on 19 July, 2024
IN THE COURT OF SHRI MUKESH KUMAR GUPTA
DISTRICT JUDGE (COMMERCIAL)-07, DISTRICT CENTRAL
TIS HAZARI COURTS, DELHI
CS (COMM.) 296/2022
CNR No. DLCT01-001224-2022
DLCT01001224-2022
ICICI BANK LTD,
Through Its Authorized Representative
Registered Office At:
Landmark, Race Course Circle,
Vadodara-390007
Branch Office At:
Videocon Tower, Rani Jhansi Road, Block
E-1, Jhandewalan Extension, New Delhi-110055 ........Plaintiff
Versus
Avanish Kumar
S/o Vijay Lal
H. No. 106, Nithari Sector-31,
Noida, Gautam Budha Nagar,
Noida-201301 ...... Defendant
Digitally signed
MUKESH by MUKESH
KUMAR GUPTA
KUMAR Date:
2024.07.22
GUPTA 21:29:17
+0530
CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 1/11
SUIT FOR RECOVERY OF RS. 4,24,995/- ALONGWITH
INTEREST & COSTS
Date of institution of suit : 25.01.2022
First date before the court : 05.04.2024
Date of hearing final argument : 12.07.2024
Date of Judgment : 19.07.2024
Appearance (s): Ms. Tuba Urososa, Ld. Counsel for the plaintiff.
: None for defendant (exparte).
JUDGMENT (Exparte)
1. By way of present judgment (exparte), I shall conscientiously adjudicate upon the suit of Plaintiff-Bank for recovery of Rs.4,24,995/- alongwith interest thereon @ 14.99 % per annum pendentelite and future from the date of filing of the suit till its realization. The plaintiff has also prayed for costs of the suit.
2. The concise facts as averred in the plaint are that the plaintiff is a body incorporated under the Indian Companies Act, 1956 and is having its registered office at Landmark, Race Course Circle, Vadodara-390007 and its branch office at Videocon Tower,Rani Jhansi Road, Block E-1, Jhandewalan Extension, New Delhi-110055. The present case relates to Jhandewalan Branch of the plaintiff bank represented by its authorized representative namely Mr. Pankaj Jain stated to be empowered to sign, institute and prosecute the suit and do all such acts and deeds on behalf of the plaintiff-Bank. The plaintiff has, however, later substituted its Authorized Representative, as prayed and allowed vide orders of the Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.07.22 21:29:26 +0530 CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 2/11 Court dated 04.10.2023. Accordingly, Mr. Jitender Mehndiratta was substituted as Authorized Representative of the plaintiff-Bank.
3. Alongwith the suit, plaintiff bank also filed an application U/o XXXVIII Rule 5 CPC thereby seeking attachment of salary of defendant, the application was duly considered by the Ld. Predecessor of this Court and a notice was ordered to be issued to the employer of the defendant vide order dated 10.03.2022. Upon notice, Advocate Mr. Utsav Jain appeared on behalf of the Company and filed report in the form of affidavit alongwith relevant papers wherein it has been stated that the defendant is no longer working with the said company. Ld. Counsel Mr. Jain also filed an application U/s 151 of CPC for deletion of address of the company from the array of memo of parties. Accordingly, the said application was considered by the Ld. Predecessor of this Court and the address of the said Company (Ex. Employer) where the defendant was working earlier was ordered to be deleted from the array of parties vide order dated 21.07.2023.
4. It has been averred in the plaint that the defendant approached and requested the plaintiff bank for grant of personal loan for an amount of Rs.5,00,000/-. The defendant agreed to abide by the terms and conditions applicable at the time of execution of loan documents and upon assurance by the defendant that he shall make the payment regularly as per the repayment schedule, the plaintiff-Bank sanctioned and disbursed the loan amount after deducting process fee and other charges to the defendant on 19.07.2018 vide Loan Account bearing No.LPNOD00037601119. The defendant agreed to pay the said loan Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.07.22 GUPTA CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 21:29:36 +0530 3/11 amount in 60 equated monthly installments of Rs.11,976/- each alongwith interest @ 14.99% as per the repayment schedule. Defendant pursuant to the sanction of the aforesaid loan amount, failed to adhere to the financial discipline of the repayment and payment of EMIs became irregular. The defendant as on the date of filing of the present suit, has paid a sum of Rs. 2,87,845/- (24 EMIs) towards equated monthly installments and had defaulted for repayment of Rs. 82,667/-, Rs. 8,615/- towards late payment charges and Rs. 6,608/- towards cheque bouncing charges besides other charges and future installments.
5. Repeated requests, reminders and notices were sent by and on behalf of the plaintiff-Bank from time to time, requesting and advising the defendant to clear outstanding loan amounts, but the defendant completely failed and neglected to pay the same. The plaintiff-Bank then recalled the Loan Facility available to the defendant by way of sending Recall Notice dated 10.08.2021 demanding from him to pay the whole outstanding amount. Defendant failed to make the payment against dues, despite repeated calls and demand notice and hence, the plaintiff-Bank has come up with the present suit for Recovery of total outstanding amount of Rs.4,24,995/- due as on 29.09.2021 plus future and pendentelite interest @ 14.99% per annum, from the date of filing of the present suit till realization along with costs of the suit.
6. Summons for Settlement of Issues were issued against the defendant. Process issued through ordinary means not received back. However, Ld. Counsel for the plaintiff filed the tracking report with respect to the summons issued to the defendant through post, as per Digitally signed by MUKESH MUKESH KUMAR CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar KUMAR GUPTA 4/11 GUPTA Date:
2024.07.22 21:29:51 +0530 which the item sent to the defendant was returned 'unclaimed'. Accordingly, on the basis of tracking report, the defendant was deemed to be served through speed post on 26.10.2023. Reliance is placed on the judgment of Hon'ble Supreme Court of India in Priyanka Kumari V. Shailendra Kumar, TP (C) No. 2090/2019 dated 13.10.2023 & K. Bhaskaran V. Sankaran Vidhyan Balan & Anr. (1999) 7 Supreme Court Cases 510. Since, the defendant failed to file the Written Statement within the statutory period, his right to file the Written Statement was forfeited vide order dated 19.02.2024 of the Ld. Predecessor of the court. Further, since none appeared on behalf of defendant during the course of proceedings, the defendant was proceeded against exparte vide order dated 05.04.2024.
7. Plaintiff in support of its case got examined its Authorized Representative namely, Mr. Jitender Mehndiratta, whose deposition has been tendered as PW1. In plaintiff evidence, PW1 has tendered his chief- examination by way of affidavit relied upon as Ex. PW1/A. The witness reiterated the averments made in the plaint and got exhibited his Power of Attorney executed by the Plaintiff-Bank in his favour which is tendered as Ex. PW1/1 (OSR).
8. PW1 has testified that defendant availed the Loan Facility from the Plaintiff-Bank for which he approached and requested the plaintiff-Bank for grant of personal loan in his favour, for a sum of Rs.5,00,000/- vide Preliminary Credit Facility Application Form and Original Credit Facility Application Form duly proved as Ex. PW1/2 (colly) and Ex. PW1/3 (colly.) respectively. The plaintiff-Bank after due verification and details, Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
2024.07.22 GUPTA CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 5/11 21:30:15 +0530 disbursed the loan amount after deducting process fee and other charges to the defendant on 19.07.2018 in Loan Account bearing No.LPNOD00037601119 vide Disbursement Memo Ex. PW1/4 (colly). Defendant failed to comply with the terms and conditions of the aforesaid Loan Agreement and failed to pay the outstanding amount upon which the plaintiff-Bank issued a Loan Recall Notice dated 10.08.2021 tendered as Ex.PW1/5 upon the defendant calling upon him to repay the outstanding amount. Despite notice, defendant neither replied the notice nor paid the outstanding dues. The witness has tendered the postal receipt as Mark 'X'. The witness has further deposed that as per the prepayment/foreclosure of account dated 29.09.2021 Ex. PW1/6 (colly) & Statement of Account dated 29.09.2021 Ex. PW1/7 (Colly.), the defendant is liable to pay a sum of Rs. 4,24,995/- (excluding prepayment charges of Rs. 22,252.49ps). As the defendant failed to make the payment despite repeated calls and legal notice, present Suit for Recovery of total outstanding amount of Rs.4,24,995/-(excluding prepayment charges), due as on 29.09.2021, plus accrued interest, has been filed on behalf of plaintiff. The requisite Certificate U/s. 65B of the Indian Evidence Act is tendered as Ex.PW1/8. The requisite Certificate Under Section 2A of Banker's Book Act, 1891 is tendered as Ex.PW1/9.
9. The plaintiff bank did not examine any other witness and vide statement dated 05.04.2024, the plaintiff's evidence was closed.
10. Submissions of the Ld. Counsel for the plaintiff have been heard and the entire record including the pleadings, documents and evidence on record has been appreciated. The defendant did not appear upon service, Digitally signed MUKESH by MUKESH CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar KUMAR GUPTA KUMAR Date: 6/11 GUPTA 2024.07.22 21:30:25 +0530 either in person or through pleader. No written statement has been filed. Defendant was proceeded exparte vide oder dated 05.04.2024. During the pendency of the suit, defendant never appeared to challenge the testimony of the plaintiff witness.
11. At the outset, the court shall take up the issue of limitation which is a legal issue, which the court is required to determine for the purpose of deciding the entitlement of plaintiff to the relief claimed. As per Section 3 of the Limitation Act, 1963, any suit, application or appeal has to be filed within the period of limitation as prescribed under the schedule annexed to the Limitation Act and subject to provisions contained in Section 4 to 24. This has to be done irrespective of the fact whether limitation has been set up as a defence or not. It is a settled proposition of law that law of limitation is a law of repose, peace and justice which bars the remedy after the lapse of particular period by way of public policy and expediency. Reliance is placed on AIR 1991 Kerala 83 Craft Centre vs. Koncherry Coir Factories. It may be seen that the present suit is for recovery of amount outstanding against the defendant in respect of personal loan sanctioned by the plaintiff bank to the defendant pursuant to Credit Facility Application Form dated 19.07.2018. The defendant initially paid Rs. 2,87,845/- (24 EMIs) and thereafter started defaulting. The last installment of Rs. 12,007/- was paid on 16.04.2021. The present Suit having been filed on 20.01.2022, within 3 years therefrom, is within the period of limitation, as per law.
12. The present suit has been filed on behalf of the plaintiff based on outstanding amount shown in the Foreclosure Statement vide Ex.PW1/6 Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.07.22 CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 21:30:40 +0530 7/11 (colly.) and Statement of Account Ex.PW1/7 (colly.) showing an outstanding balance of Rs.4,24,995/- (excluding prepayment charges), duly supported with Certificate U/s. 65-B of the Indian Evidence Act Ex.PW1/8 and the Certificate under section 2A of Banker's Book of Evidence Act Ex.PW1/9. As per the case of the plaintiff, the defendant has failed to pay the outstanding amount of Rs.4,24,995/- which as per the Statement of Account Ex.PW1/7 is due and pending against the defendant. The loan recall notice dated 10.08.2021 has been relied upon as Ex.PW1/5 and postal receipts have been relied upon as Mark-X. It is the deposition of the plaintiff witness that despite the aforesaid, defendant has failed to pay the outstanding amount leading to filing of the present suit.
13. The onus to prove the averments and claim of the plaintiff rests entirely upon the plaintiff who has to discharge the burden of proof to establish its case, as per law. In civil litigation, it is sufficient for the plaintiff to discharge the burden laid upon it successfully, if the plaintiff is able to prove its case by preponderance of probabilities. It is the law of land as re-affirmed by the Hon'ble Apex Court in Adiveppa V. Bhimappa (2017) 9 SCC 586. Hon'ble Supreme Court of India in Adiveppa (supra) was pleased to uphold that:
"It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleadings and adequate evidence (oral and documentary) in support thereof."Digitally signed
MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.07.22 21:30:59 +0530 CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 8/11 Thus, the onus to prove its case and that the burden to prove the case as per law entirely lies upon the plaintiff, by way of documentary and oral evidence.
14. The present suit has been filed on behalf of plaintiff bank, on the basis of Personal Loan Facility granted by the plaintiff in favour of the defendant, in regular course of banking business. In such cases, documentary evidence is of paramount importance as there is continuity of maintenance of account, as per RBI guidelines, irrespective of change of guard, transfer of officials from a particular bank facility or branch. The nature of banking business involves major trust issues and accordingly a robust system has been developed for financial stability and to avoid any malfeasance by any bank employee. Hence, it is a matter of settled practice for public financial institutions to maintain regular and proper accounts against each and every customer account. Accordingly, the court has meticulously scrutinized the evidence, document and statement of account tendered through the sole testimony of PW1.
15. Now, the court has to see as to whether the plaintiff bank justifiably raised the outstanding against the defendant. It may be seen that upon appreciation of documentary evidence, plaintiff placed reliance on Foreclosure and Statement of Account vide Ex. PW1/6 (colly.) and Ex.PW1/7 (colly.). As per the said Foreclosure and Statement of Account proved on record as Ex.PW1/6 and Ex.PW1/7, the total outstanding balance of Rs.4,47,247.49ps including principal outstanding balance of Rs.3,77,161/-, Rs.30,043/- as interest on pending installment and Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar GUPTA 2024.07.22 9/11 21:31:25 +0530 Rs.22,252.49ps towards prepayment charges @ 5.9% on outstanding principal besides other charges have been shown to be due against the defendant as on 29.09.20219. However, the plaintiff bank filed the present suit for recovery of Rs.4,24,995/- excluding the prepayment charges of Rs.22,252/-.
16. During the examination of PW1, a court question was put to the witness, as to whether any payment was made by the defendant during the pendency of the suit. To which, the witness has answered that no amount was paid by the defendant to the plaintiff during the pendency of the present suit. The testimony of PW1 remained unchallenged and unrebutted, as such there is no reason for the court to disbelieve the same. The plaintiff bank has been able to prove its case to the extent of preponderance of probabilities. Accordingly, the defendant is liable to pay an outstanding balance of Rs.4,24,995/- to the plaintiff bank.
17. In view of the above discussion, the plaintiff bank is accordingly entitled to a decree for a sum of Rs.4,24,995/-, against the Defendant. The Plaintiff Bank shall also be entitled to interest @ 6% per annum on the decreetal amount pendentelite and future from the date of filing of the suit till the date of its realization. Reliance placed on Pt. Munshi Ram @ Associates (P) Ltd. V. DDA, 2010 SCC Online Delhi 2444.
18. In the specific facts and circumstances of the case, Plaintiff Bank shall also be entitled to costs of the suit throughout against the Defendant.
Digitally signed by MUKESHMUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.07.22 21:31:39 +0530 CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 10/11
19. Decree Sheet be prepared accordingly.
20. File be consigned to record room after due completion.
Pronounced in Open Court MUKESH by Digitally signed MUKESH KUMAR GUPTA today on this 19th July, 2024 KUMAR Date: GUPTA 2024.07.22 21:32:25 +0530 (Mukesh Kumar Gupta) District Judge (Commercial Court) -07 Central District, THC, Delhi/19.07.2024 'ak' Certificate
Certified that the Judgment contains 11 pages and each page has been signed by the undersigned. The Judgment was pronounced on 19.07.2024 and has been checked and uploaded on the website on 23.07.2024 due to non functioning of digital key in the new computer system.
MUKESH Digitally
by MUKESH
signed
KUMAR KUMAR GUPTA
Date: 2024.07.22
GUPTA 21:32:30 +0530
(Mukesh Kumar Gupta)
District Judge (Commercial Court) -07
Central District, THC, Delhi'ak'
CS (COMM)-296/2022 ICICI BANK LTD. VS. Avanish Kumar 11/11