Delhi District Court
M/S Icici Bank Ltd vs Puneet Rai on 2 December, 2021
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
COURT)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
PRESIDED BY: MR. BHARAT PARASHAR
IN THE MATTER OF:
CS (Commercial) No. 1139/2020
M/s ICICI Bank Ltd.
2nd Floor, Videocon Tower,
Jhandewalan Extension
New Delhi-110055.
Through its authorized representative
Ms. Nitu Shrivastava
.....Plaintiff
VERSUS
Puneet Rai
C/o Purashotam Rai
Address : House No. 9 New Sanik Vihar,
1st Floor, Rani Bagh, Pitampura,
Saraswati Vihar, Delhi-110034
Mobile No. 7428282874 .....Defendant
Email ID : [email protected].
Date of Institution : 14.08.2020
Date of Reserve of Judgment : 26.11.2021
Date of Judgment : 02.12.2021
JUDGMENT
1. The plaintiff bank has filed a suit for recovery of ₹ 7,71,599/- against the defendant on 13.08.2020.
Plaintiff's Case
2. Briefly stated the case of the plaintiff bank is that it is a body corporate under the provisions of the Companies Act CS (Comm.) No. 1139/20 Page No. 1 of 13 1956. The suit has been instituted through its authorized representative Ms. Nitu Shrivastava.
3. The defendant approached the plaintiff bank for grant of a loan for purchase of a vehicle. The plaintiff bank acceded to the request of the defendant and sanctioned him a loan of Rs. 8,00,000/-. The relevant particulars of the credit facility sanctioned by the plaintiff bank to the defendant are as under:
Loan Account no. LUDEL00038961030
Date of execution of 23.04.2019
documents
Make and Model of the HONDA CITY 1.5V, MT,
vehicle I-VTEC
Registration number of DL-10-CH-4703
vehicle
Equated Monthly Installment Rs. 27,996/-
(EMI)
Rate of Interest 15.52%
Number of EMIs 36
4. The defendant executed various documents for a valuable consideration which included
(i). Credit Facility Application form;
(ii). Vehicle Loan cum Hypothecation agreement;
(iii). Irrevocable Power of Attorney
5. After making certain payments, the defendant defaulted in repayment and therefore, the loan has been recalled vide recall notice dated 26.09.2019 calling upon him to make CS (Comm.) No. 1139/20 Page No. 2 of 13 the payment of entire outstanding amount. Despite being duly notified the defendant did not come forward to pay the outstanding amount constraining the plaintiff to institute the instant suit.
6. The plaintiff has prayed that the suit be decreed in the sum of ₹ 7,71,599/-(Rupees Seven Lakh Seventy One Thousand Five Hundred and Ninety Nine only) with pendentelite and future interest @ 24% per annum till the actual realization of the amount. Cost of the suit has also been prayed for.
Service of the Defendant
7. The process had been sent to defendant. Subsequently, on 06.10.2020 one counsel Mr. Rohit Bhati had appeared for defendant and vide order dated 06.10.2020 passed by Ld. Predecessor of this Court, directions were passed to file written statement within the stipulated period and matter was adjourned to 20.10.2020. Thereafter, none appeared on behalf of defendant and matter was accordingly adjourned to 24.11.2020, 14.01.2021, 12.03.2021 and 13.05.2021. Vide order dated 12.08.2021 defendant was proceeded ex- parte. The defendant did not join the proceedings thereafter.
8. Vide order dated 21.10.2021 application moved on behalf of plaintiff bank seeking substitution of earlier authorized representative Ms. Nitu Shrivastava was allowed.
CS (Comm.) No. 1139/20 Page No. 3 of 13Accordingly, Mr. Rajneesh Kumar was substituted as AR of plaintiff bank.
9. At this stage, it will be pertinent to mention that the present suit was though initially filed as a summery suit under Order XXXVII CPC and accordingly vide order dated 20.08.2020 passed by the then Ld. Predecessor of this Court while the accompanying application under Order XL Rule 1 seeking appointment of a Receiver to take possession of the hypothecated vehicle was disposed off, summons of the suit were also ordered to be issued under Form no. 4 in Appendix B in prescribed format under Order XXXVII CPC.
10. However, on the next date of hearing i.e. 06.10.2020 when one counsel Mr. Rohit Bhati appeared on behalf of defendant and undertook to file his vakalatnama during the course of day then the then Ld. Predecessor adjourned the matter to 20.10.2020 directing the defendant to file written statement within the statutory period with direction to supply advance copy to opposite counsel. However, on the next date i.e. 20.10.2020 though none appeared on behalf of defendant but Ld. Predecessor chose to again adjourned the matter for 24.11.2020 giving one more opportunity to defendant to file vakaltanama and written statement. Thereafter, on subsequent dates of hearing none appeared on behalf of defendant and it was recorded in the ordersheets that no written statement has been filed and CS (Comm.) No. 1139/20 Page No. 4 of 13 finally on 12.08.2021 the defendant was ordered to be proceeded ex-parte.
11. Certainly as the suit was filed under Order XXXVII CPC so the process mandated over there ought to have been followed but it appears that after the counsel for defendant appeared on 06.10.2020 then he was given time to file written statement treating the suit as an ordinary suit. Ld. Counsel for plaintiff bank has however now also made a statement in the Court that though the suit was initially filed as a summery suit under Order XXXVII CPC but subsequently it was stated on behalf of plaintiff bank that the suit may be treated as an ordinary recovery suit and accordingly the proceedings required to be followed in an ordinary recovery suit were followed.
12. Be that as it may, since the defendant has already been ordered to be proceeded ex-parte and the matter is now fixed for pronouncement of orders after hearing ex-parte final arguments so no prejudice can be said to have been caused either to the plaintiff bank or to the defendant by following the process meant for ordinary recovery suit.
Plaintiff's Evidence
13.In its evidence, the plaintiff bank has examined only one witness i.e. Mr. Rajneesh Kumar its Authorized Representative, as PW-1. PW1 tendered his oral evidence contained in affidavit Ex.PW1/A. He also tendered the CS (Comm.) No. 1139/20 Page No. 5 of 13 following documents in evidence:-
Documents Exhibits
Copy of Power of Attorney dated Ex.PW1/1
01.07.2020
Office copy of loan documents Ex. PW1/2
executed between the parties (Colly)
Original copy of preliminary credit Ex.PW1/3
facility application form
Copy of documents of defendant for Ex.PW1/4
identification and residence proof (Colly)
Original car loan agreement dated Ex.PW1/5
23.04.2019 (Colly)
Statement of account Ex.PW1/6
Copy of loan recall notice and postal Mark "A"
receipt (Colly)
Print out taken from the website Mark "B"
showing the details of the vehicle in
question
Letter of pre-payment of defendant's Ex. PW-1/7
car loan account
Certificate u/s 2A of the Bankers Ex.PW1/8
Books Evidence Act, 1891
Certificate under Section 65-B of Ex. PW1/9
Indian Evidence Act, 1872
14.The plaintiff evidence was thereafter closed on
21.10.2021.
Arguments
15.I have heard the submissions advanced by Mr. Sohel Rishab, Ld. counsel for the plaintiff.
16.Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the CS (Comm.) No. 1139/20 Page No. 6 of 13 meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
17.The plaintiff is a bank. The evidence of its sole witness has been based upon the records maintained by the bank in the ordinary course of its banking business.
18.The testimony of the plaintiff's witness has remained unchallenged and un-impugned as the defendant has not come forward to defend the suit despite being duly served.
19.He also submitted that the suit is not only within limitation but there is also no legal impediment which may prevent decreeing the suit in favour of plaintiff.
20.The plaintiff has relied upon the judgment rendered on 31.01.2018 by the Hon'ble High Court of Delhi in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another' wherein on the similar facts the suit of the plaintiff has been decreed. Thus, the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
21. On a meaningful reading of the plaint, the suit is apparently within the provisions of the Commercial Court Act, 2015 and the transaction, which is subject matter of the suit, is squarely covered by the definition of a commercial dispute within the meaning of section 2(c) of CS (Comm.) No. 1139/20 Page No. 7 of 13 the Act.
22.The summons which have been sent to the defendant in this case have been the summons for the settlement of issues. The summons did not put the defendant on a caveat that in case of his non-appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendant has not come forward to contest the suit and has been proceeded as ex-parte, the plaintiff is still liable to prove its case on pre-ponderance of probabilities.
23. PW- 1 has tendered his oral evidence which is contained in his affidavit Ex. PW1/A. A question may arise here that PW1 is not privy to the execution of various documents on which the cause of action has been founded upon by the defendant. On this aspect the Ld. Counsel for the plaintiff has placed strong reliance on a judgment passed on 31.01.2018 by our own High Court in RFA No. 297/2015 titled 'M/S ICICI Bank Limited versus Kamini Sharma & Another'. The sum and substance of the facts of the said case are similarly placed as the facts in the case under consideration.
24. PW1 has tendered in evidence his Power of Attorney as Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act.
CS (Comm.) No. 1139/20 Page No. 8 of 1325.The authority to sue on behalf of the plaintiff has been stated in clause 1 of Ex. PW1/1 and in many of its various clauses other incidental and ancillary powers have been vested in favour of PW1.
26.One pertinent question that may arise is whether the power to give evidence can be delegated. The answer has to be in negative in view of the law laid down by the Hon'ble Apex Court in Man Kaur (Dead) by LRs vs. Hartar Singh Sandhwa (2010) 10 SCC 512.
27. The evidence in this case is primarily documentary. The documents tendered in evidence by the plaintiff are the documents maintained by a bank in the ordinary course of its business. Though the exceptions cannot be ruled out, but generally taking a judicial notice of the banking business, these documents can be considered to be duly executed in due course of the business and capable of binding the parties into a contractual relationship.
28.A civil case proceeds on the doctrine of pre-ponderance of probabilities and not on proof beyond reasonable doubt. There is no denying the fact that non-appearance of defendant cannot be taken as a circumstance against him to draw an inference that it tantamount to an admission of the case of the plaintiff, as there may be thousand and one reasons for his non-appearance, and the Court cannot speculate into the reasons for his non-appearance on some CS (Comm.) No. 1139/20 Page No. 9 of 13 analogy based on certain conjectures and surmises. Yet, it is the settled law that in any trial absolute certainty is a myth and the law has provided for working solution in the form of doctrine of pre-ponderance of probabilities. Placing reliance upon the judgment cited by the plaintiff and on the strength of the pronouncement made therein there is enough room to take the documents tendered by the plaintiff on their face value without any demur.
29.Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendant had approached the plaintiff bank and executed Ex. PW1/3 seeking a credit facility. The bank acceded to the request and consequent upon the same the defendant executed various loan documents viz. Ex. PW1/3 & Ex. PW1/5. The defendant made various payments but later on failed to adhere to the financial discipline. The various transactions have been recorded in the statement of account Ex. PW1/6, maintained by the plaintiff in the ordinary course of its business. The same being electronic records have been accompanied with certificates under the Bankers' Books Evidence Act and the Indian Evidence Act respectively. As such they are admissible in evidence without production of the originals or the production of the computer system.
30.The plaintiff has also served a notice Mark 'A' upon the defendant calling upon him to clear the outstanding in his account. Due to non-compliance of its terms on the part of CS (Comm.) No. 1139/20 Page No. 10 of 13 the defendant, the plaintiff took legal recourse by filing the instant suit for recovery.
31.The loan has been disbursed on 26.04.2019. The suit has been instituted on 14.08.2020 and the same is therefore within the prescribed period of limitation.
32.The plaintiff bank has though mentioned various charges due to be recovered from defendant in the communication dated 02.01.2020 Ex. PW 1/7 as under:
Particulars Amount ₹
Principal outstanding 7,29,814
Late Payment Penalty 6,491
Cheque bouncing charges 4,720
Interest for the month 282
Prepayment charges 43,059.02
Interest on pending installments 30,292
Total 8,14,658.02
However, it is noticed that while the present suit the plaintiff bank has not claimed the pre-payment charges of Rs. 43,059.02/- and the suit has been filed for recovery of Rs. 7,71,599/- [₹8,14,658.02 - ₹ 43,059.02 (pre-payment charges)].
33.Thus in my considered opinion the plaintiff bank has been successful in proving its case not only on preponderance of probability but also beyond shadows of all reasonable doubts entitling it to the outstanding principal and interest amount. The plaintiff bank is also entitled to the late payment penalty and cheque bouncing charges as the same CS (Comm.) No. 1139/20 Page No. 11 of 13 have been occasioned due to the acts and omissions of the defendant. The same flow from the contractual relationship as per the terms and conditions settled and forming part of the loan documents.
34.The plaintiff has claimed pendentelite and future interest @24% per annum with effect from the date of filing of the present suit i.e. 14.08.2020. However, in view of overall facts and circumstances of the case and the documents executed between the parties, the plaintiff bank is held to be entitled to interest @ 15.52% per annum only which in fact is the contractual rate of interest and the same appears to be just and proper in the contemporary business milieu, risk factors involved and other attendant circumstances.
35. Thus the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
36. The plaintiff bank is entitled to recover a sum of ₹ 7,71,599 alongwith pendente lite and future interest @ 15.52 % per annum from the date of institution of the suit i.e. 14.08.2020 till realization of the entire amount.
37. The plaintiff shall also be entitled to the costs of the suit as per rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs.
CS (Comm.) No. 1139/20 Page No. 12 of 1338. Decree shall be drawn accordingly.
Copy of the Judgment
39. In compliance of the provisions of the Order XX Rule 1 of the Code of Civil Procedure (as amended up-to-date by the Commercial Courts Act, 2015) a copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise.
40. File be consigned to the Record Room.
Announced in the open court on 02.12.2021.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 1139/20 Page No. 13 of 13