Delhi District Court
Icici Bank vs Sonu on 11 March, 2024
IN THE COURT OF SH SACHIN SOOD,
ADDITIONAL DISTRICT JUDGE-01, (CENTRAL)
TIS HAZARI COURTS, DELHI.
CS NO. 6317/2018
CNR No- DLCT 01 012754 2018
M/s ICICI BANK LTD
REGISTERED OFFICE AT:
LANDMARK, RACE COURSE CIRCLE,
ALKAPURI, VADODARA-390007.
AND CORPORATE OFFICE AT:
ICICI BANK TOWERS,
BANDRA KURLA COMPLEX,
MUMBAI 400051
HAVING ITS BRANCH OFFICE AT :-
2ND FLOOR, VIDEOCON TOWER,
BLOCK E-1, JHANDEWALAN EXTENSION,
NEW DELHI-110055 ...PLAINTIFF
VERSUS
SONU
S/O VIRENDER SINGH
H.NO. 110, LADHREY MOHALLA
AYA NAGAR, NEAR STATE BANK
OF INDIA. SOUTH DELHI-110047
ALSO AT:
SONU
S/O VIRENDER SINGH
POLICY BAZAR INSURANCE
WEB AGGREGATOR PVT LTD
PLOT NO. 119, SECTOR-44
GURGAON-122001 ...DEFENDANT
Date of Institution : 29.09.2018
Date of Reserving : 11.03.2024
Date of Decision : 11.03.2024
SUIT FOR RECOVERY OF Rs. 5,62,897/- (RUPEES FIVE LACS SIXTY
TWO THOUSAND AND EIGHT HUNDRED NINETY SEVEN ONLY)
CS No. 6317/2018 ICICI Vs Sonu Page No 1/8
JUDGMENT
1. The plaintiff has filed the present suit seeking recovery of Rs. 5,62,897/-
alongwith pendente-lite and future interest at rate of 24% per annum on the basis of the pleadings inter-alia as follows:-
i. That the plaintiff i.e. ICICI Bank Limited is a banking company incorporated under the provisions of the Companies Act 1956 having its registered office at Land mark, Race Course Circle, Alkapuri, Vadodra-390007 and having its branch office at 2nd floor, Videocon Towers, Block E-1, Jhandewalan Extn, New Delhi and Corporate office at ICICI Bank Towers, Bandra Kurla Complex. Mumbai- 400051.
ii. That the defendant approached the plaintiff bank for grant of loan for purchasing a car make HYUNDAI GRAND I 10 SPORTZ under the ICICI Bank Car Loan Scheme.
iii. That the defendant executed credit facility application form, unattested deed of hypothecation, irrecoverable power of attorney and in view of the request of the defendant and the documents submitted by the defendant, the plaintiff bank had granted the car loan facility vide Loan No. LADEL00036813062 for an amount of Rs. 5,12,826/-. The said amount was financed and disbursed on 15.12.2017 to the defendant.
iv. That the said loan facility was granted to the defendant for a period of 60 months commencing from 05.01.2018 till 05.12.2022 and the defendant had agreed to pay the loan amount in 60 equated monthly installments of Rs. 10,812/-.
v. That the defendant also executed the loan agreement which contains the terms and conditions governing his loan, unattested Deed of Hypothecation hypothecating the vehicle financed from the loan CS No. 6317/2018 ICICI Vs Sonu Page No 2/8 amount of the plaintiff.
vi. That from the said loan account, a vehicle/Car make Hyundai Grand I-
10 Sportz bearing Registration No. DL3C CN 5416 was financed and the same was hypothecated in favour of the plaintiff as a security towards the loan advanced by the plaintiff.
vii. That after the receipt of the loan amount, the defendant failed to pay the equated monthly installments of the loan amount granted to him, as per schedule.
viii. That despite several reminders, personal visits of the officials of the plaintiff and repeated requests made by the plaintiff, the defendant failed to make the payments and comply with the terms and conditions of the loan agreement governing the loan of the defendant. ix. That the defendant failed to adhere to the financial discipline and committed defaults and failed to regularize his account. x. That after availing the loan facility for purchasing of the aforesaid vehicle, the defendant has paid only 2 installments to the plaintiff bank and thereafter he did not pay any installment to the plaintiff bank towards the EMI or the interest.
xi. That as per the statement of accounts dated 03.08.2018, five installments are overdue and payable by the defendant to the plaintiff bank.
xii. That thereafter, in view of the non-payment of the loan/credit amount and interest, the subject contract/loan facility was recalled by the plaintiff bank through legal notice dated 03.07.2018. xiii. That the plaintiff is maintaining the proper accounts in the usual and ordinary course of its business. As per the statement of accounts dated 03.08.2018, the defendant is liable to pay a sum of Rs. 5,62,897/- and as such the plaintiff had filed the present suit on 29.09.2018.
2. Alongwith the suit, the plaintiff had also filed an application under CS No. 6317/2018 ICICI Vs Sonu Page No 3/8 Order 40 Rule 1 CPC seeking appointment of Receiver. Vide order dated 02.11.2018, this Court had allowed the said application and the receiver was appointed and the summons of the suit were directed to be issued to the defendant.
SERVICE OF DEFENDANT AND EX-PARTE PROCEEDINGS
3. The summons of the suit were sent to the defendant but the defendant could not be served on his last known/available address by the way of ordinary process as well as by way of registered post. Thereafter the plaintiff moved an application under Order 5 Rule 20 seeking substituted service of the defendant and thus the defendant was served by way of publication as recorded in the Order dated 19.07.2022.
4. Since the defendant failed to appear even on the subsequent dates therefore vide order dated 15.02.2023, the defendant was proceeded Ex- Parte.
PLAINTIFFs EVIDENCE
5. The plaintiff led its ex-parte evidence on 01.06.2023.
6. In order to prove its case, the plaintiff got examined its authorized representative namely Sh. Mohit Grover as PW-1, who tendered in evidence his duly sworn affidavit Ex. PW1/A reiterating the contents of the plaint which are not reproduced here for the sake of brevity. In his testimony the PW-1 relied upon and proved the following documents:-
S No Exhibited as Nature of documents
1 Ex PW1/1(OSR) Copy of power of attorney.
2 Ex PW1/2 Preliminary Credit Facility Application
Form.
3 Ex PW1/3 Credit Facility Application form.
4 Ex PW1/4 Unattested Deed of HP and Irrevocable
power of attorney.
5 Ex PW1/5 Irrevocable power of attorney and Loan
CS No. 6317/2018 ICICI Vs Sonu Page No 4/8
recall notice dated 19.09.2017.
6 Mark X Computerized record of Postal receipt
7 Ex PW1/6 Legal notice dated 03.07.2018.
8 Ex PW1/7 Statement of account dated 03.08.2018.
9 Ex PW1/8 Certificate u/s 65 B of Indian Evidence
Act, 1872
10 Ex PW1/9 Certificate u/s 2A of the Bankers book of
Evidence Act, 1891.
7. Thereafter, the ex-parte PE was closed vide order dated 01.06.2023 consequent upon the statement of authorized representative for the plaintiff.
ARGUMENTS AND CONCLUSION
8. Final arguments were duly advanced by Ld. Counsel for the plaintiff.
9. I have duly considered the arguments advanced by the Ld. Counsel for the plaintiff and have perused the pleading, documents and the evidence on record carefully.
10. The onus to prove its case was upon the plaintiff as it is a settled proposition of law that the case of the plaintiff has to stand on its own legs irrespective of the defence of the defendant.
11. In order to prove its case, the plaintiff has placed on record various documents to show that the defendant has availed personal loan from the plaintiff bank vide documents i.e. Preliminary Credit facility application form, Credit facility application form, Unattested Deed of HP and Irrevocable power of attorney and the statement of account dated 03.08.2018 respectively which were duly exhibited and proved as Ex. PW-1/2, Ex. PW1/3, Ex. PW1/4, Ex PW1/5 and Ex. PW-1/7 respectively vide which it was duly proved that the defendant had availed the loan facility from the plaintiff and the said loan was also duly disbursed to the defendant.
CS No. 6317/2018 ICICI Vs Sonu Page No 5/8
12. The plaintiff has deposed before the Court that the defendant had defaulted in paying the EMIs and in order to substantiate this, the plaintiff has placed on record the statement of accounts maintained by the plaintiff bank qua the defendant which is duly exhibited as Ex. PW1/7 and duly supported with certificate under Section 65-B of the Indian Evidence Act which is exhibited as Ex. PW1/8 and Certificate u/s 2A of the Banker's Book of Evidence Act which is exhibited as Ex. PW1/9 showing the outstanding balance of Rs. 5,62,897/- as on 03.08.2018. The plaintiff has also placed on record the legal notice/loan recall notice dated 03.07.2018, exhibited as Ex. PW1/6 vide which the plaintiff demanded the due amount from the defendant along with the computerized record of postal receipts i.e. Mark-X.
13. Thus, on the basis of the pleadings as well as the evidence led by the plaintiff, and also in view of the fact that despite service, the defendant did not appear before the Court to defend the case and to cross-examine the plaintiff's witness therefore it can be safely held that the testimony of PW-1 has remained unrebutted, unblemished and uncontroverted. Therefore, this Court has no ground to disbelieve the testimony of the PW-1. Also, by placing on record various loan documents and statement of accounts qua the defendant maintained by the plaintiff bank, the plaintiff has been able to prove its case on the scale of preponderance of probabilities. It is a matter of record that as per account statement filed by the plaintiff i.e. Ex PW1/7, it is clear that though an amount of Rs. 5,62,897/- is shown to be outstanding against the defendant as on 03.08.2018. However as per the statement of account an amount of Rs 29,383/- is shown towards pre-payment charges @ 5.9% on outstanding principal. However since there has been no payment whatsoever after the payment of only 2 installments, the plaintiff has wrongly shown the said pre-payment charges.
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14. The plaintiff, in his suit, has prayed for payment of pendente-lite and future interest at the rate of 24 % per annum on the basis of the loan agreement. However this court is of the opinion that the interest claimed by the plaintiff bank is on the excessive side.
15. Section 34 of CPC provides for grant of interest pendente-lite at any rate not exceeding 6% and future interest at any rate not exceeding contractual rate and if there is no contractual rate than not exceeding the rate at which nationalized banks advance loan.
16. Thus keeping in mind the said provision interest of justice would be served if plaintiff is granted simple interest @ 6% per annum for the pendente-lite period i.e. from the date of institution of the suit till the passing of the decree. The plaintiff shall also be entitled to simple interest at the rate of 9% per annum towards future interest from the date of the passing of the decree till its actual realization.
17. RELIEF:-
In view of the discussion herein above, this Court passes the following Final Relief:-
1. A Decree of Rs. 5,33,514/- (Rupees Five Lacs Thirty Three thousand Five Hundred Fourteen Only) is passed in favor of the Plaintiff and against the Defendant which shall be payable by the defendant.
2. The Plaintiff is also entitled to pendente-lite interest at the rate of 6% per annum simple interest to be calculated on Rs. 5,33,514/-
from 29.09.2018 till 11.03.2024.
3. The Plaintiff is also entitled to future interest at the rate of 9% per annum simple interest from till its actual realization.
4. The plaintiff is also entitled to the costs.
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18. Decree sheet be prepared accordingly.
19. File be consigned to record room, after necessary legal formalities.
Announced in the open court (Sachin Sood)
11.03.2024 ADJ-01/ Central District
Tis Hazari Court/Delhi.
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