Delhi District Court
Icici Bank vs Haniket Kansal on 11 July, 2024
IN THE COURT OF Sh. NIKlilL CHOPRA, DISTRICT JUDGE
(COMf\ffiRCIAL COURT)-06, CENTRAL DISTRICT, TIS
HAZARI COURT, DELHI
CS (COMM) No.1111/2022
CNR No. DLCT0l-006501-2022
ICICI BANK LTD
Registered office at:-
Landmark, Race Course Circle,
Alkapuri, Vadodara-390 007.
Corporate Office at-
ICICI Bank Towers,
Bandra Kurla Complex,
Mumbai-400051.
Having its Branch Office at-
2nd Floor, Videocon Towers,
Block E-3/1, Jhandewalan,
New Delhi-110055.
Through its AR Sh. Rajneesh Kumar
...... Plaintiff
Versus
Haniket Kansai,
S/o Manoj Kansai,
E-189, 1st Floor, Vijay Vihar,
PH-2, Rohini Delhi-110085.
Also at:
Haniket Kansai,
S/o Manoj Kansai,
C 3/119 3rd Floor, Sector-OS,
Rohini, Delhi-110085.
. ... Defendant
CS (COMM) 1111/2022 ICICl BANK LTD. VS. HANIKET KANSAL page I of 9
~~/
Date of Institution 16.04.2022
Final arguments
Date of decision
06.07.2024
11.07.2024 '
EX-PAR.TE JUDGMENT
1.Judgment disposes off the suit for recovery of Rs. 8,53,912/- filed by the plaintiff bank on the grounds of default in repayment of loan amount.
2. Shorn of avoidable details, the case of the plaintiff bank is that the plaintiff is a banking company, incorporated under the Companies Act and engaged in the business of grant of loans and other credit facilities including financing the vehicles. The defendant is stated to have approached the plaintiff for grant of loan to the tune of Rs.9,43,000/- towards purchasing of the vehicle. Upon execution of the Credit Facility Application Form and other loan documents, the plaintiff is stated to have granted a loan vide Loan No.LADEL00041959598, which stood disbursed on 24.08.2020. The loan was repayable in 60 monthly installments of Rs.19,800/- each, starting from 01.10.2020 to 01.09.2025. The defendant is also stated to have executed an Unattested Deed of Hypothecation of the vehicle so financed i.e. HYUNDAI CRETA/1.4 S PLUS bearing registration no. DL 5 CR 8103. The defendant is also stated to have executed a Irrevocable Power of Attorney in favour of the plaintiff.
3. The defendant, it is further averred, did not adhere to the CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 2 of 9 ~ schedule and paid only 14 EMis and thus defaulted in its commitment towards the plaintiff and has also failed to regularize his loan account. The loan is stated to have been recalled vide legal notice dated 19.06.2021 and the entire outstanding amount of Rs. 8,53,912/- was called upon to be paid by the defendant. The plaintiff is stated to be maintaining the proper account in its usual and ordinary course of business and as per the statement of account dated 14.03.2022, the defendant is claimed as liable to pay Rs. 8,53,912/- to the plaintiff.
4. While claiming cause of action to have accrued on several occasions and also on 19.06.2021 when the legal notice was issued to the defendant as well as on all subsequent defaults, the plaintiff had filed the present suit for recover of outstanding loan amount together with interest.
5. As regards the jurisdiction, it is stated that the loan was processed and disbursed from the office of the plaintiff bank at Jhandewalan, within the jurisdiction of this Court. The subject loan is stated to be a commercial transaction and the dispute is stated to be a commercial dispute within the definition provided in Section 2( I)( c) of the Commercial Courts Act.
6. The plaintiff has accordingly prayed for a decree of Rs.8,53,912/- together with Future interest.
CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 3 of 9 ~/
7. It transpires that alongwith the suit, an application unde r Section 12A of Commercial Courts Act has been filed separ ately by the plaintiff, which has been allowed by the Court.
8. The defendant was sought to be served. However, on account of failure of service through ordinary mean s, was allowed to be served through substituted means i.e. publi cation in newspaper 'Rashtriya Sahara' edition dated 28.10.2022. The defendant, however, did not appear leading his being proce eded as Ex-parte vide order dated 21.11.2022 of Ld. Predecesso r.
9. The plaintiff examined its authorized representative Sh. Rajneesh Kumar as PW-1, who tendered his affidavit Ex. PW 1/ A in evidence and deposed on the lines of his plead ings.
He also relied upon the following documents:
1) Power ofA ttomey as Ex. PWJ/1 (OSR);
11) Preliminary credit facility application form as Ex.PW J/2;
iii) Credit facility application form as Ex. PWJ/3;
iv) Unattested deed ofhypothecation as Ex. PWJ/ 4;
v) Copy ofloa n recall notice dated 19.06.2021 as Ex. PWJ/ 5 and its postal receipt as M.srk X v1) Statement of Account dated 14.03.2022 as Ex.
PWJ/6(Colly.);
v1i) Certificate under Section 65-B of Indian Evidence Act, 1872 as Ex. PWJ/7.
CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 4 of 9 Viii) Certificate under Section 2A of Banker '.s- Book of EvidenceAc~ 1891 asEx.PWJ/8.
l 0. I have heard Id. Counsel for the plaintiff and have gone through the record.
11. Main contentions of the learned counsel for the plaintiff are-
a. That the defendant had obtained the vehicle loan and the Joan documents have been proved as Ex.PW-112 and Ex.PW-1/J. b. Since the loan was granted for the purchase of the vehicle, the plaintiff bank has directly disbursed the amount to the supplier-Mis Pawan Autowheels Pvt. Ltd.as is recorded in Ex.PW-1/J. c. The defendant has also executed the Unattested Deed of Hypothecation-Ex.PW-114, however, the defendant did not adhere to the financial discipline thereby compelling the plaintiff to recall the Joan vide Ex.PW-1/5.
d. The plaintiffhas been maintaining the accollllt of the defendant in regular course of its business and the Statement of Account has been proved by the plaintiffas Ex.PW-1/6 (Colly.), which, at the time of the filing of the suit provided for a sum of Rs.8,53,912.90/- as recoverable from the defendant.
12. Attention of this court is also invited towards Ex. PWI/5
1.e. loan recall notice dated 19.06.2021, whereby the loan was recalled and defendant was called upon to remit the sum of Rs.9,20,080/- to the plaintiff within seven days. Ld. Counsel for CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 5 of 9 ~r' the plaintiff has contended that said records are supported by certificate under Section 65-B of Indian Evidence Act, 1872 and under Section 2A of Banker's Book of Evidence Act, 1891, placed on record as Ex. PW 1/7 & Ex. PW 1/8 respectively.
13. I have also gone through the documents in light of the submissions made by the learned counsel for the plaintiff. The grant of loan is proved by Ex.PW-1/2, Ex.PW-1/3 and Ex.PW-1/4 inasmuch as, the defendant has executed the documents as well as has hypothecated the vehicle so financed.
As regards the liability of defendant to repay the outstanding amount of loan is concerned, reliance has been placed upon Ex.PW-1/6 (Colly.). A perusal of Ex.PW-1/6 (Colly.) reveals pre-payment charge@ 5.9% i.e. Rs.44,963.90/- have also been factored in by the plaintiff while calculating the total amount due as Rs.8,53,912.90/-. However, it is candidly admitted by the learned counsel for the plaintiff that the said amount could not have been charged inasmuch as it is not a case of pre- payment or pre-mature satisfaction of the entire loan. As such, the said amount needs to be deducted from the total claim to be due i.e. Rs.8,53,912.90/- as on 14.03.2022.
Hence, the total amount recoverable from the defendant comes to Rs.8,08,949/- [Rs.8,53,912.90 - Rs.44,963.90/- (pre payment charges)].
CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 6 of 9
14. Considering that the defendant has omitted to appear and to participate in the proceedings, and further considering that the evidence placed on record has gone unrebutted, the Court is of the view that the plaintiff has satisfied the requirement of degree of proof requisite for civil proceedings i.e. pre-ponderence of probabilities. There is nothing on record which could diminsh the probative value of these documents or otherwise render the documents as devoid of credit worthiness. The defendant, on the other hand, by means of its non appearance and non-pa1ticipation in the proceedings has signified the lack of any plausible defence as against the claim of the plaintiff. It can thus be concluded that the plaintiff is entitled to recover a sum of Rs.8,08,949/- from the defendant.
15. As regards the interest, the court is of the opinion that interest @ 12% p.a. would suffice the purpose and would be more just and appropriate in the facts and circumstance of the case. As such, the plaintiff is held entitled for recovery of Rs.8,08,949/-together with interest @ 12 % p.a. from the date of filing of the suit till its actual realization.
16. Considering that the plaintiff as well as its bankers are located with the territorial jurisdiction of this Court i.e. at Jhandewalan, this Court has the territorial jurisdiction to try and entertain the present suit. Fmther, the suit is within the period of limitation.
CS (COMM) I II I » : BANK LTD. VS. HAN I KET KANSAL page 7 of 9 dispute
17. The subject matter of the suit is a commercial of the within the definition provided under Section 2(i)(c) Commercial Com1s Act, 2015.
18. It has also been pointed out by the Ld. Counsel for the plaintiff that an application under Order XL Rule l CPC read with Section 151 CPC for appointment of Receiver for the purpose of re-possessing the vehicle awaits disposal.
19. In view of the above, the aforesaid application 1s allowed and the suit is decreed in following terms:-
(1) The pla1i1tiff shall repossess the vehicle and would be entitled to sell it in a manner that it fetches the maximum valuation/ consideration;
(ii) Sh. Jahn Bansal is appointed as the Receiver, who shall also be obliged to submit the report with this Court;
(iii) The decree ofrecovery ofmoney to the tune of Rs.8,08,9491- together with interest@ 12% p.a. from the date of filing of the suit hf! its actual realization is passed 1n favour of plaintJff and against the defendant, further directing the defendant to make the payment of decretal amount with three months CS (COMM) 1111/2022 ICICI BANK LTD. VS. HANIKET KANSAL page 8 of 9 ~ / from today, subject further to the condition that in the event of repossession and sale of the S hypothecated vehicle ie. HYU NDA I CRETA/1.4 PLUS bearing registration no. DL 5 CR 8103, the said decretal amount shall be subjected to due adjustments against the consideration so realized by the plaintiff.
20. Decreed with costs.
21. Decree sheet be prepared accordingly.
pliance.
22. File be consigned to the record room after due com Dictated and Announced today i.e. on 11 th day of July, 2024 in the open Court (NIKHIL CHOPRA) District Judge (Commercial Court-06) Central, Tis Hazari Court, Delhi 11.07.2024 JCICI BANK LTD. VS. HANIKET KANSAL page 9 of 9 CS (COMM) 1111/2022