Delhi District Court
M/S Icici Bank Ltd vs Ansar India Infratech Pvt. Ltd on 23 November, 2021
DLCT010043372020
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. 1032/2020
M/s ICICI Bank Ltd.
Having its registered office at :
ICICI Bank Tower,
near Chakli Circle, Old Padra road,
Vadodara Gujarat-390007.
Inter-alia having its branch office at :
E-Block, Videocon Tower, .....Plaintiff
Jhandewalan Extension,
New Delhi-110055
Through its authorized representative
Mr. Anuj Jain
VERSUS
1. Ansar India Infratech Pvt. Ltd.
Through its Director
Mohd. Sartaj
(Borrower)
Having its Office at :
# G-227, Sector-63, .....Defendants
Noida-201301.
[email protected].
2. Mohd. Sartaj,
S/o Mohd. Iqbal,
(Co-borrower & Director)
R/o House # K-319,
New Seelam Pur, Bhajan Pura,
Delhi-110053
CS (Comm.) No. 1032/20 Page No. 1 of 11
Date of Institution : 23.07.2020
Date of Reserve of Judgment : 12.11.2021
Date of Judgment : 23.11.2021
JUDGMENT
1. The plaintiff bank has filed a suit for recovery of ₹ 3,41,150.20/- against the defendants.
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 1956. The suit has been instituted through its authorized representative Mr. Anuj Jain.
3. The defendant no. 1 is a private limited company and is borrower, defendant no. 2 is a co-borrower and also one of the directors of defendant no. 1 company. The defendants approached the plaintiff bank for grant of a loan for purchase of a vehicle. The plaintiff bank acceded to the request of the defendants and sanctioned him a loan of Rs. 8,47,616/- and disbursed an amount of Rs. 8,36,257 on 23.11.2017 after deducting processing fees, stamp duty and other charges as per request by defendants in terms of loan documents. The relevant particulars of the credit facility sanctioned by the plaintiff bank to the defendants are as under:
Loan Account no. LANOD00036724744
Date of execution of 22.11.2017
documents
CS (Comm.) No. 1032/20 Page No. 2 of 11
Make and Model of the MARUTI ERTIGA/VDI
vehicle
Registration number of UP-16BR-9542
vehicle
Equated Monthly Installment Rs. 26,064/-
(EMI)
Rate of Interest 8.35%
Number of EMIs 37
4. The defendants executed various documents for a valuable consideration which included
(i). Credit Facility Application form;
(ii). Deed of Hypothecation ;
(iii). Irrevocable Power of Attorney
5. After making certain payments, the defendants defaulted in repayment and therefore, the loan has been recalled vide recall notice dated 30.10.2019 calling upon them to make the payment of amount outstanding. Despite being duly notified the defendants 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 ₹ 3,41,150.20 with future interest @ 8.35% per annum till the actual realization of the amount. Cost of the suit has also been prayed for.
Service of the Defendants
7. The process had been sent to defendants. Vide order dated CS (Comm.) No. 1032/20 Page No. 3 of 11 18.02.2021 recorded by Ld. Predecessor of this Court, defendants have been served. Thereafter, none appeared on behalf of defendants and vide order dated 15.09.2021 defendants were proceeded ex-parte. The defendants did not join the proceedings thereafter.
Plaintiff's Evidence
8. In its evidence, the plaintiff bank has examined only one witness i.e. Mr. Anuj Jain its Authorized Representative, as PW-1. PW1 tendered his oral evidence contained in affidavit Ex.PW1/A. He also tendered the following documents in evidence:-
Documents Exhibits
Copy of Power of Attorney Ex.PW1/1(OSR)
Credit Facility application form Ex. PW1/2
Unattested deed of hypothecation Ex.PW1/3
Irrevocable power of attorney Ex.PW1/4
Office copy of legal notice dated Ex.PW1/5
30.10.2019
Certified statement of account Ex.PW1/6
Certificate u/s 2A of the Bankers Ex. PW1/7
Books Evidence Act, 1891
Certificate under Section 65-B of Ex. PW1/8
Indian Evidence Act, 1872
Copy of postal receipts Mark X
9. The plaintiff evidence was thereafter closed on
28.10.2021.
Arguments
10.I have heard the submissions advanced by Mr. Rajesh CS (Comm.) No. 1032/20 Page No. 4 of 11 Kumar, Ld. counsel for the plaintiff.
11.Ld. counsel for plaintiff has submitted that the subject matter of the suit is a commercial dispute within the meaning of section 2(c) (i) and other applicable provisions of the Commercial Courts Act, 2015.
12.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.
13.The testimony of the plaintiff's witness has remained unchallenged and un-impugned as the defendants have not come forward to defend the suit despite being duly served.
14.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.
15.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. It has been thus submitted that the plaintiff is entitled to a decree with costs.
Appreciation of Evidence & Arguments
16. On a meaningful reading of the plaint, the suit is CS (Comm.) No. 1032/20 Page No. 5 of 11 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 the Act.
17.The summons which have been sent to the defendants in this case have been the summons for the settlement of issues. The summons did not put the defendants on a caveat that in case of their non-appearance the averment in the plaint shall be deemed to be admitted. Thus, even when the defendants have 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.
18. 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 defendants. 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.
19. PW1 has tendered in evidence his Power of Attorney as CS (Comm.) No. 1032/20 Page No. 6 of 11 Ex. PW1/1. A presumption about its due execution and authentication emanates under section 85 of the Indian Evidence Act.
20.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.
21.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.
22. 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.
23.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 defendants cannot be taken as a circumstance against them CS (Comm.) No. 1032/20 Page No. 7 of 11 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 their non-appearance, and the Court cannot speculate into the reasons for their non-appearance on some 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.
24.Thus, appreciating the evidence tendered by the plaintiff it is clear that the defendants had approached the plaintiff bank and executed Ex. PW1/2 seeking a credit facility. The bank acceded to the request and consequent upon the same the defendant executed various loan documents viz. Ex. PW1/2 to Ex. PW1/4. The defendants 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.
CS (Comm.) No. 1032/20 Page No. 8 of 1125.The plaintiff has also served a notice Ex. PW1/5 upon the defendants calling upon them to clear the outstanding in their account. Due to non-compliance of its terms on the part of the defendants, the plaintiff took legal recourse by filing the instant suit for recovery.
26.The loan has been disbursed on 23.11.2017. The suit has been instituted on 23.07.2020 and the same is therefore within the prescribed period of limitation.
27.The plaintiff has claimed the suit amount, the components of which have been stated in Ex. PW 1/6 as under:
Particulars Amount ₹
Principal outstanding 2,96,047.60
Late Payment Penalty 11,034
Cheque bouncing charges 11,210
Interest for the month 1,437.70
Prepayment charges 17,466.80
Interest on pending installments 3954.10
Total 341,150.20
28.Thus in my considered opinion the plaintiff bank has been successful in proving its case not only on preponderance of probability but also beyond shadow 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 have been occasioned due to the acts and omissions of the defendants. The same flow from the contractual relationship as per the terms and conditions settled and CS (Comm.) No. 1032/20 Page No. 9 of 11 forming part of the loan documents. However no right to claim the pre-payment charges has been established by the plaintiff bank for the reason that it is case of recall of the loan on the part of plaintiff and not a foreclosure on the part of defendants. Thus, the plaintiff is not entitled to the same.
29.The plaintiff has claimed future interest w.e.f. 05.03.2020. It was incumbent upon the plaintiff to capitalize the interest in the suit amount as on the date of filing and he ought to have paid the court fee accordingly. Thus, the plaintiff is entitled to interest only from the date of institution of the suit i.e. 23.07.2020. The plaintiff is entitled to interest @ 8.35% per annum which 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. The interest accrued till the date of decree thus shall be part of the decreetal amount.
30. Thus the suit of the plaintiff is liable to be decreed in terms as stated above.
ORDER
31. The plaintiff bank is entitled to recover a sum of ₹ 3,23,683.4 i.e. ₹ 3,41,150.20 - ₹ 17,466.80 (pre-payment charges) alongwith simple interest @ 8.35% % per annum from the date of institution of the suit i.e. 23.07.2020 till CS (Comm.) No. 1032/20 Page No. 10 of 11 realization of the entire amount. The interest accrued till the date of decree shall be part of the decreetal amount.
32. The plaintiff shall be entitled to the costs of the suit as well, as per rules. Certificate of counsel fee (if any submitted) be taken into reckoning while computing the costs. Balance Court Fee, if any, be deposited by the plaintiff within 30 days of the decree.
33. Decree shall be drawn accordingly.
Copy of the Judgment
34. 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.
35. File be consigned to the Record Room.
Announced in the open court on 23.11.2021.
(Bharat Parashar) District Judge (Commercial Court)-01 Central District, Tis Hazari Courts,Delhi CS (Comm.) No. 1032/20 Page No. 11 of 11