Delhi District Court
Icici Bank Ltd vs Neeraj Tiwari Prp Of M/S Pusha Dupatta ... on 19 November, 2024
IN THE COURT OF MS. PREETI AGRAWAL GUPTA,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
NORTH WEST, ROHINI, NEW DELHI
CS (COMM.) 634/2022
CNR No. DLNW01-006553-2022
ICICI BANK LTD
Through its Authorised Representative
Having its Registered Office At:
Landmark, Race Course Circle,
Vadodara-390007.
Having its Branch Office At:
E-3/1, Jhandewalan,
New Delhi-110055.
........Plaintiff.
Versus
NEERAJ TIWARI,
S/O SH. SHIV PRASAD,
PROP. OF M/S PUSHPA DUPATTA CENTRE
At- 1/3803, Gali No.4, Bhagwan Pur,
Khera, Shahdara, New Delhi-110032
Also At:-
M/S PUSHPA DUPATTA CENTRE
At- 1/3803, Gali No.4, Bhagwan Pur,
Khera, Shahdara, New Delhi-110032.
...... Defendant.
SUIT FOR RECOVERY OF Rs.12,29,184/- (RUPEES TWELVE
LAKHS TWENTY NINE THOUSAND ONE HUNDRED
EIGHTY FOUR ONLY)) + ACCRUED PENDENTELITE AND
FUTURE INTEREST @24% P.A.
Date of institution of suit : 03.09.2022
Date of hearing of final argument : 13.11.2024
Date of Judgment : 19.11.2024
CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 1/12
Digitally signed by
PREETI PREETI
AGRAWAL AGRAWAL GUPTA
Date: 2024.11.19
GUPTA 17:04:47 +0530
(PREETI AGRAWAL GUPTA)
District Judge (Commercial Court)-01
North-West/Rohini/New Delhi.
19.11.2024
JUDGMENT
1. By way of present judgment, I shall conscientiously adjudicate upon the suit of Plaintiff-Bank (ex-parte) for recovery of Rs.12,29,184/- as on 05.04.2022 (the date of foreclosure) alongwith further monthly rest interest thereon @24% per annum from the date of filing of the suit till its realization. The plaintiff has also prayed for cost of the suit.
2. The concise facts of the case are being crystalised herein. As per the averments, plaintiff is stated to be a Body Corporate constituted under the provisions of the Companies Act, 1956 and is having its registered office at Land Mark, Race Course, Circle, Vadodara-390007 and its branch office at E-31, Videocon Tower, Jhandewalan, New Delhi-110055. The present Suit has been filed through its authorized representative namely Sh. 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 Authorised Representative, as prayed and allowed vide orders of the Court. Accordingly, Sh. Amit Kumar was substituted as Authorized Representative of the plaintiff-Bank.
3. It has been averred in the plaint that on 28.10.2020, Defendant approached and requested the plaintiff bank for grant of personal loan for his personal use / business purpose to the tune of Rs.13,50,000/-. The defendant agreed to abide by the standard CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 2/12 Digitally signed PREETI by PREETI AGRAWAL AGRAWAL GUPTA GUPTA Date: 2024.11.19 17:04:52 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 terms and conditions applicable at the time of execution 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 same on 28.10.2020 after deducting the processing fee and other charges vide Loan Account bearing No.UPDEL00042303489. The defendant agreed to pay the said loan amount in 36 equated monthly installments of Rs.47,778/- each, with interest @16.25%, as per the repayment schedule. Defendant further agreed that, in case any installment is delayed, the defendants would pay a penal interest @24% per annum as per the agreement, on the outstanding equated monthly installments amount. It is further stated that there was number of casting obligations on the defendant as per the loan agreement /credit facility application form, and contrary to the assurance and undertaking, the defendant failed to discharge his liability and defaulted in making the regular equated monthly installments. The defendant had been extremely irregular in making the payment of the equated monthly installments to the plaintiff bank. It is further stated that plaintiff bank tried its level best to recover the amount due but the defendant evaded paying the same. The plaintiff bank issued a notice Recall Notice dated 29/01/2022. The defendant recalling /foreclosing the entire loan agreement. In spite of the receipt of the notice, the defendant failed to make the payment of the termination amount as demanded by the plaintiff bank in notice. It is further stated that the last payment against repayment of loan was made by the defendant on 30.10.2021 and defendant is liable to pay Rs.12,29,184/- to the plaintiff bank as on 05.04.2022. The CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 3/12 Digitally signed PREETI by PREETI AGRAWAL AGRAWAL GUPTA GUPTA Date: 2024.11.19 17:04:55 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 defendant started defaulting in payment of EMI's on 05.01.2021 and in total has defaulted 08 EMI's till 05.04.2022. The details of calculation of the Suit amount (foreclosure statement) is given below :-
Principal outstanding Rs.10,74,438/-
Late Payment Penalty Rs.45,314/-
Cheque Bouncing Charges and Other Charges Rs.6,024/- Interests on pending installments Rs.1,03,408/-
Total Rs.12,29,184/-
Therefore, the defendant is liable to pay the plaintiff Bank an amount of Rs.12,29,184/- along with interest @24% Per annum from 05.04.2022 till its realization.
4. It is further stated that plaintiff pursued Pre-Institution Mediation under Section 12A of the Commercial Courts Act, 2015 , but the defendant failed to participate in the settlement process. As a result, a Non-Starter Report was issued on 08.02.2023 by DLSA, North West, Rohini Courts, Delhi. Thereafter, plaintiff was constrained to file the present Suit for Recovery of Rs.12,29,184/-
alongwith interest @24% per annum from the date of filing of the suit till its realization with costs of the Suit.
5. The Cause of Action to file the present Suit has been claimed on 28.10.2020, when the application of the defendant was sanctioned by the Plaintiff Bank and documents pertaining to loan was executed by the defendant. It further arose, when the personal CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 4/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:04:58 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 loan / business loan of the defendant was finally approved and directed to be disbursed through Rohini Branch of Plaintiff Bank. It further arose, when in pursuance of recall notice dated 29.01.2022, the defendant / his representative visited the Rohini Branch of the Plaintiff Bank. The cause of action further when the entire loan was recalled by the Plaintiff Bank on 29.01.2022 and demanded entire loan amount. Hence, the present Suit.
6. Summons for Settlement of Issues in respect of the present suit issued against the defendant were duly served upon the defendant, despite which, defendant failed to appear to defend the suit and accordingly, was proceeded with ex-parte vide orders dated 06.09.2023. Despite service, no Written Statement on behalf of defendant has been filed.
7. Plaintiff in support of its case examined its Authorized Representative namely Sh. Amit Kumar, whose deposition has been tendered as PW1. In plaintiff evidence, PW1 tendered his chief-examination by way of affidavit relied upon as Ex. PW1/A bearing his signatures at Point A and Point B. The witness reiterated the averments, in the plaint and deposed that he is authorized to depose before the Court vide Power of Attorney executed by the Plaintiff-Bank in his favour, tendered as Ex. PW1/1 (OSR).
8. PW1 testified that defendant availed the Loan Facility from the Plaintiff-Bank for which, he approached and requested the CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 5/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:02 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 plaintiff-Bank for grant of personal loan in his favour, tuning to a sum of Rs.13,50,000/- on 28.10.2020, vide separate Preliminary Credit Application Form, Credit Facility Application Form and other documents duly proved as Ex. PW1/2 to Ex. PW1/4. The plaintiff-Bank after due verification and details, sanctioned a loan of Rs.13,50,000/- vide Loan Account bearing No. UPDEL00042303489 to the defendant. 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 Recall/Demand notice dated 29.01.2022 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 tendered the postal receipt as Mark 'X'. The witness further deposed that as per the accounts maintained by the plaintiff-Bank, the defendant is liable to pay a sum of Rs.12,29,184/- towards principal, interest, penal interest and other dues as on 05.04.2022 (i.e. the date of foreclosure of account). As the defendant failed to make the payment despite repeated calls and legal notice, present Suit for Recovery of total outstanding amount of Rs.12,29,184/-, as on 05.04.2022, plus accrued interest, has been filed on behalf of plaintiff. Certified prepayment/ Foreclosure and Statement of Account have been collectively relied upon as Ex.PW1/6(colly). The requisite Certificate U/s. 65B of the Indian Evidence Act is tendered as Ex.PW1/7. The requisite Certificate Under Section 2A of Banker's Book Act, 1891 is tendered as Ex. PW1/8. The claim of the suit is prayed to be decreed in favour of the plaintiff.
CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 6/12 Digitally signed by PREETI PREETI AGRAWAL
AGRAWAL GUPTA
Date: 2024.11.19
GUPTA 17:05:06 +0530
(PREETI AGRAWAL GUPTA)
District Judge (Commercial Court)-01
North-West/Rohini/New Delhi.
19.11.2024
9. The plaintiff bank did not examine any other witness and vide statement dated 28.02.2024, the plaintiff's evidence was closed.
10. I have heard Ld. counsel for the plaintiff and perused the entire record including the pleadings, documents and oral testimony of PW1 Shri Amit Kumar on record. Since the defendant has remained ex-parte, the Court shall consider the testimony of witness and the documents, as they exist being un-rebutted and un- challanged.
11. At the outset, the Court shall first take up the aspect of Limitation which is a legal issue and which the court is required to determine, for the purpose of deciding the entitlement of plaintiff to the relief claimed. The loan sanctioned by the plaintiff bank on 28.10.2020 was to be repaid in 36 EMIs of Rs.47,778/- each. As per the Statement of Account Ex.PW1/6(colly), last payment was made by the defendant on 30.10.2021, during the subsisting schedule of payment of loan account in question. It is case of the plaintiff that when the loan account became irregular, plaintiff bank was constrained send Recall/legal Notice dated 29.01.2022. The present Suit has been filed on 03.09.2022. Thus, the suit is within limitation.
12. The Court shall now examine the aspect of territorial jurisdiction of this Court. As per facts of the present case, it is the CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 7/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:10 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 case of the plaintiff that loan facilities in question were availed by the defendants from and at branch office of the bank ( Situated at Sector-8, Rohini, Delhi). Loan documents were also executed and loan amount was also repayable, at the same branch, located within the territorial jurisdiction of this Court. The present suit has been filed before this Court, as the appropriate Court of territorial jurisdiction from where the cause of action arose in favour of the bank and against the defendants. Section 20(c) of Civil Procedure Code, clearly provides that a Court within whose local limits the cause of action, "wholly or in part", arises, would have territorial jurisdiction to try the Suit. The averments in the pleadings and the supporting testimony of the plaintiff witness have duly proved the case in favour of the plaintiff bank that the cause of action arose in favour of plaintiff and against the defendant(s), within jurisdiction of this Court. Hence, this Court has jurisdiction to entertain the present Suit.
13. The present suit has been filed on behalf of the plaintiff based on outstanding amount shown in the Foreclosure and Statement of Account vide Ex. PW1/6(colly), showing an outstanding balance of Rs.12,29,184/-, duly supported with Certificate U/s. 65B of the Indian Evidence Act. As per the case of the plaintiff, the defendant has failed to pay the outstanding amount of Rs.12,29,184/- which as per the Foreclosure and Statement of Account Ex.PW1/6(colly) is due and pending against the defendant. The legal demand/Loan Recall notice dated 29.01.2022 has been relied upon as Ex.PW1/5. It is the case of the plaintiff that CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 8/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:14 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 despite the aforesaid, defendant has failed to pay the outstanding amount leading to filing of the present suit.
14. 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."
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.
15. Let us examine the case of the plaintiff bank, as per the evidence adduced by it. 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 type of 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 CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 9/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:18 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 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 scrutinize the evidence, documents and statement of account tendered through the sole testimony of PW1.
16. The testimony of PW-1 has remained entirely un- rebutted and un-challenged. Before proceeding further, the Court has to first see as to whether the plaintiff bank justifiably raised the outstanding against the defendant. Further, upon appreciation of documentary evidence, plaintiff placed reliance on Foreclosure and Statement of Account vide Ex. PW1/6(colly). As per the said Foreclosure and Statement of Account, proved on record as Ex. PW1/6(colly), the total outstanding balance of Rs.12,29,184/- including current outstanding, accrued interest and future principal was due and pending against the defendant as on 05.04.2022. Having proved document Ex. PW1/6(colly) as an unrefuted document, it is proved that the defendant is indebted with an outstanding of Rs.12,29,184/- and the amount was recoverable and payable by the defendant as on the date of filing of the Suit. As per the case of the plaintiff, nothing has been paid by the plaintiff during the pendency of the Suit.
17. Thus, considering the entire facts and circumstances of CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 10/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:24 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 the case, the Court is of the considered opinion that the plaintiff has been successful in establishing its case by way of the law of the land under which, the plaintiff has duly discharged its onus to prove its case by placing reliance on proving the evidence, which when appreciated, proves the case of the plaintiff by preponderance of probabilities. The documents/evidence relied upon by the plaintiff are duly proved through its sole witness, whose testimony is unbreached and there are no reasons to disbelieve the same. Accordingly, plaintiff has discharged the onus alleged upon it by law to prove its case in its favour, as per law.
18. In light of the above discussions, plaintiff has been successful in establishing its case, to prove its claimed entitlement for recovery of money to the tune of Rs.12,29,184/-, outstanding and recoverable against the defendant, as per law. Accordingly, plaintiff is entitled for Decree for Recovery of Rs.12,29,184/- against the defendant.
19. Suit of the plaintiff is, accordingly decreed and the plaintiff is entitled to recovery in the sum Rs.12,29,184/- against the defendant, with an interest @7% per annum, in terms of Section 34 CPC, which is just & fair and in synchrony with the prevailing rate of interests and in the facts and circumstances of the case, from the date of filing of the Suit, till the date of its realization.
CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 11/12 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:27 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi. 19.11.2024
Plaintiff is also entitled to recover actual Court fees paid.
20. Decree sheet be drawn accordingly.
21. File be consigned to record room, after due completion.
Announced in the open Court today on this 19th day of November, 2024 Digitally signed by PREETI PREETI AGRAWAL AGRAWAL GUPTA Date: 2024.11.19 GUPTA 17:05:32 +0530 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024 CS (Comm.) No.634/2022 ICICI Bank Ltd. vs. Neeraj Tiwari Prop. Of M/s Pushpa Dupatta Centre Page 12/12 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-01 North-West/Rohini/New Delhi.
19.11.2024