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Delhi District Court

M/S Icici Bank Limited vs Sh. Manoj Kumar Pandey on 15 February, 2022

             IN THE COURT OF MS. NEHA GARG
         CIVIL JUDGE­01, CENTRAL DISTRICT, DELHI


                         Suit No. 3959/2017
                    CNR No:­DLCT03­008260­2017


M/s ICICI Bank Limited.
Having its Registered Office at:
Landmark, Race Course Circle,
Vadodara­390007.
Inter alia having its Branch Office at:
E­Block, Videocon Tower,
Jhandewalan Extension,
New Delhi­110055.                                               .....Plaintiff
                                     Versus
Sh. Manoj Kumar Pandey
S/o Sh. Ramesh Kumar Pandey,
R/o 234, F.F. Sec­18,
Faridabad­121002.                                               ....Defendant


DATE OF INSTITUTION               :       18.12.2017
DATE OF DECISION                  :       15.02.2022


           SUIT FOR RECOVERY OF RS. 2,91,430.66/­

EX­PARTE JUDGMENT

1.

Present suit has been filed by the plaintiff bank being a legal entity CS No. 3959/2017 ICICI BANK LTD vs MANOJ KUMAR PANDEY Page 1 of 8 against the defendant through its Authorised Representative Sh. Mohit Grover. It is stated in the plaint that in the month of December 2016, the defendant had approached the plaintiff bank for grant of loan of Rs. 2,80,000/­ for purchase of the vehicle namely "NANO/XTA" and entered into a loan agreement under the loan cum hypothecation scheme of the plaintiff bank. That the defendant agreed to repay the said loan in 36 EMIs with interest as per the repayment schedule, that defendant had also secured the loan by way of hypothecating the vehicle in question. That keeping in view the request of the defendant the plaintiff bank sanctioned a loan of Rs. 2,80,000/­ and disbursed an amount of Rs. 2,77,800/­ on 18.01.2017 to the dealer "Tayal India Motors Pvt Ltd"

under the loan number LAFDB00035226081, after deducting an amount of Rs. 2200/­ towards processing fees, stamp duty and other charges as per request by the defendant in terms of the loan documents. That the defendant had agreed to repay the said loan along with interest @ 11% in 36 EMIs of Rs. 9167/­. That the defendant had executed the Credit Facility Application along with standard terms and conditions for said facility, deed of hypothecation and irrevocable power of attorney in favour of the plaintiff bank. That the said loan documents were executed on 27.12.2016.

2. That the plaintiff bank had disbursed the aforesaid amount to the dealer for delivery of the vehicle namely "NANO/XTA" a per request CS No. 3959/2017 ICICI BANK LTD vs MANOJ KUMAR PANDEY Page 2 of 8 made by the defendant and the defendant undertook to supply the registration number to the plaintiff bank. That the vehicle in question was registered with registration No. HR­51BM­2609 and the same was hypothecated in favour of the plaintiff bank in terms of the deed of hypothecation dated 27.12.2016 executed by the defendant. It is further that in terms of the loan documents executed, the defendant has paid an amount of Rs. 31920/­(03EMIs) and has defaulted in repayment of Rs. 50583/­(06)towards EMIs and Rs. 8306/­ towards late payment and cheque bouncing charges totaling to Rs. 58,889/­ besides future installments of Rs. 2,45,507/10/­ as on 25.10.2017. It is further averred that as per the accounts maintained by the plaintiff bank, the defendant is indebted and liable to pay a sum of Rs. 2,91,430.66 towards principal, interest, penal interest and other dues as on 25.10.2017.

It is further stated that since there was a default in repayment of the monthly installments, the plaintiff bank in terms of the loan agreement, recalled the loan facility availed by defendant by way of sending a loan recall notice dated 22.08.2017, that despite issuance of the said notice, the defendant neither cared to reply to the notice nor made any efforts to repay the outstanding amount or to hand over the peaceful possession of the vehicle in question. Hence, the present suit.

It is pertinent to mention here that vide order dated 18.12.2017, application u/O 40 Rule 1 r/w Section 151CPC was allowed and a Receiver was appointed by Ld. Predecessor of this Court. That report of CS No. 3959/2017 ICICI BANK LTD vs MANOJ KUMAR PANDEY Page 3 of 8 Receiver has been filed on 10.03.2021, wherein it is reported that vehicle in question is untraceable.

3. The defendant was served by way of publication on 11.12.2019. However, despite service of summons through publication, neither the defendant had appeared nor any Written Statement has been filed on behalf of defendant. Therefore, the defendant was proceeded Ex­parte vide order dated 14.01.2020.

4. Thereafter, Plaintiff led it's Ex­parte evidence and examined its AR Sh. Mohit Grover as a witness on 03.03.2021 whose affidavit of evidence is marked as Ex.PW1/A wherein he reiterated the contents of the plaint. He also exhibited the following documents:­

1. Ex.PW1/1(OSR) : Copy of Power of Attorney.

2. Ex.PW1/2 : Credit Facility Application form along with terms and conditions of loan.

3. Ex.PW1/3 : Deed of Hypothecation.

4.Ex.PW1/4 : Irrevocable Power of Attorney

5. Ex.PW1/5 : Copy of legal notice dated 22.08.2017.

6. Mark X : Postal receipt.

7. Ex.PW1/6 : Certified copy of statement of account.

8. Ex.PW1/7 : Certificate u/s 2A of Bankers Book of Evidence Act.

Thereafter, vide separately recorded statement, Ex­parte PE was closed. The matter was then listed for Ex­parte final arguments.

5. Ex­parte final arguments advanced by Ld. Counsel for the plaintiff were heard. Case file perused.

6. As per statement of account which is Ex.PW1/6, last installment was paid by the defendant on 01.10.2017 through cheque. Therefore, the suit has been filed within the period of limitation. This court has jurisdiction to try the present suit.

7. The Credit Facility Application form(Ex.PW1/2) bears signatures of the defendant and the statement of account(Ex.PW1/6) shows that a sum of Rs.2,56,487.05/­ is principal outstanding against the defendant.

8. It is worthwhile to mention that the statement of account Ex.PW1/6 is not accompanied by Certificate U/s 65B of Indian Evidence Act, 1872. During the course of final arguments, Ld. Counsel for plaintiff has relied on the judgment in ICICI Bank Ltd vs Kamini Sharma and another in RFA No. 297/2015 in support of contention that certificate u/S 65B of Indian Evidence Act is not required to be brought on record. The relevant excerpts from the judgment in ICICI Bank Ltd vs Kamini Sharma(supra) are reproduced as follows:­ CS No. 3959/2017 ICICI BANK LTD vs MANOJ KUMAR PANDEY Page 5 of 8 "16. There is however some serious re­thinking required on the manner in which electronic documents are to be proved. In each case where electronic documents are involved, it would be impractical to expect the parties to produce the primary evidence which would be the medium on which the document is stored, considering that electronic documents could be stored on hard drives, hard disks, CPUs, micro­ processors, cameras, telephones etc. Certificates under Section 65B accompanying the printouts have simply become standard formats. Cross examination on these certificates can involve debates on model of computer, printer, questions as to who took printouts etc. Courts, therefore, need to take a pragmatic attitude in these cases. Unless there is a serious challenge to the electronic documents i.e., tampering, forgery, hacking, misuse of an email address, change in contents etc., usually printouts of electronic documents ought to be allowed to be read in evidence. The complex procedure laid down for proving of electronic documents can prove to be extremely cumbersome and can have enormous impact especially in commercial transactions, as it has had in the present case."

9. Section 65 B of Indian Evidence Act 1872 deals with admissibilty of electronic records. Sub Section 4 of Section 65 B of the Evidence Act provides that wherein any information contained in an electronic record printed on a paper, stored, recorded or copied in optical or magnetic media produced by computer is required to be given in evidence, a certificate purported to be signed by a person occupying a responsible and official position in relation to the operation of the relevant device or in management of the relevant activities shall be evidence of any matter stated in the certificate.

10. In the present matter, the loan document i.e., Credit Facility Application form(Ex.PW1/2) is filed in original and the same bears the signatures of the defendant. The factum of release of the loan amount is clearly established by the plaintiff. Furthermore, plaintiff has filed on record a certificate u/S 2A of Bankers Book of Evidence Act, 1891(Ex.PW1/7) in support of certified copy of Statement of Account(Ex.PW1/6). Furthermore, no challenge to the statement of account (Ex.PW1/6) on account of tempering, forgery, hacking, change of contents etc., has been made and hence, there is no impediment in reading the same into evidence in support of plaintiff's case. Reliance in this regard is placed on the judgment in ICICI Bank Ltd vs Kamini Sharma(supra).

11. On the other hand, despite the notice of the suit in hand, defendant had not appeared before the Court to either dispute his signatures upon the Credit Facility Application form (Ex.PW1/2) or to dispute the plaintiff's case. As such, the entire evidence led by the plaintiff bank goes unrebutted and since the defendant has chosen to remain absent, therefore, there is no reason for this Court to disbelieve plaintiff bank's version. Plaintiff has claimed interest @11% per annum, however, same appears to be exorbitant, interest @ 6% per annum seems to be sufficient in order to meet the ends of justice.

12. Relief:­ In view of aforesaid discussion, the present suit is decreed in favour of the plaintiff bank and against the defendant. The plaintiff bank is held entitled to recover an amount of Rs.2,56,487.05/­ along with interest @ 6 % per annum from the date of filing of the present suit till its realization from the defendant.

No order as to cost.

Decree sheet be prepared accordingly.

File be consigned to the record room after necessary compliance.

Announced in the open                             (NEHA GARG)
court today on 15.02.2022                   Civil Judge­1, Central District,
                                               Tis Hazari Courts, Delhi




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