Final Order 19

Order Details: COPY OF JUDGMENT
Pdf Text: 1
IN THE COURT OF Ms. NEELOFER ABIDA PERVEEN
DISTRICT JUDGE (COMMERCIAL COURT)-01
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR NO.: DLCT01-005721-2024
CS (COMM)/471/2024
IN THE MATTER OF:-
The Jammu & Kashmir Bank Ltd.
Having its head office at M.A. Road Srinagar,
Kashmir and A branch amongst others at
Rajinder Place, New Delhi
Through AR, Sh. Rajesh Bali
… PLAINTIFF
VERSUS
1. Motasim Billah Farooqui
S/o Mohd. Saleem Farooqui
R/o H. No. 44A, 3rd floor,
Okhla Main, New Delhi-110025.
2. Fauzia Farooqui
W/o Motassim Billah Farooqui
R/o 601, Jamia Apartment,
Plot No. 02, Sector Pi-1
Greater Noida, UP. 201301
… DEFENDANTS
Date of Institution of Suit [e-filing] : 16.04.2024
Date of Registration : 18.04.2024
Date of Reserving Judgment : 29.11.2025
Date of Pronouncement of Judgment : 02.12.2025
EX-PARTE JUDGMENT
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SUIT FOR RECOVERY OF MONEY
1. The plaintiff, a Banking Company incorporated under the
provisions of the J&K Companies Act, 1977 (SAMVAT), having its
Corporate office at M.A. Road, Sri Nagar, J&K and branch office amongst
others at : Rajindra Place, New Delhi seeks to recover an amount of
Rs.5,90,746.53/- from the defendants, two in number, jointly and severally,
defendant no.1 as the principal borrower and defendant no.2 as the
guarantor, on a set of facts, that the Defendant no.1 had approached the
plaintiff bank with the request for Term/Vehicle Loan facility of Rs. 5.50
Lacs (Rupees Five Lacs and Fifty Thousand Only), in his favour for
purchase of new Commercial Vehicle, Hyundai Xcent T+ CNG, white
color, and on the request of the Defendant No. 1, Plaintiff bank had
sanctioned Term/Vehicle Loan facility of Rs. 5.50 Lacs (Rupees Five Lacs
and Fifty Thousand Only), in his favour for purchase of the same, vide
Sanction Letter dated 24.07.2018, on the execution by
Borrower/Defendant No. 1 as well as the guarantor the requisite security
documents in favour of the Plaintiff Bank.
2. That the said loan amount of Rs. 5.50 Lacs was re-
payable along with the interest @ 3YR MCLR + 1.50% (fixed) i.e. 9.30%
+ 1.50% i.e. 10.80% P.A. with monthly rest, within a period of 5 years, in
60 equal monthly installments of Rs. 11,904/-, each. That the Defendant
No. 1was not regular in depositing the due payments in the said
Term/Vehicle Loan Account no. 0206266100000013, and the Plaintiff
Bank, accordingly on 31.03.2021 and 08.04.2021 was constrained to issue
demand notices to the defendants, but the defendants failed to repay the
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outstanding amount. That as per the accounts which are maintained in
normal course of the Banking Business as on 30.11.2023 an amount of
Rs.5,90,746.53/- is reflected as outstanding, the defendant no. 1 is liable to
pay the interest on the outstanding amounts @ 10.80% compounded
monthly with effect from 01.12.2023 till its final realization, ie the
contractual rate of interest, and therefore and the Plaintiff Bank
accordingly is entitled to recover the said amount with interest from both
the Defendants jointly and severally.
3. The defendants were served with the summons sent vide
courier on 21.05.2025 for 30.5.2026, but none appeared for the defendants
despite service, time was allowed for filing of written statement till
20.6.2025. As none appeared despite service of summons and no written
statement was received despite opportunity, the defendants were
proceeded against exparte vide order dated 04.08.2025, and matter was
listed for ex-parte evidence of the plaintiff.
4. The plaintiff has examined the then Branch Head of
Jammu and Kashmir Bank, Rajender Place Branch, Sh. Rajesh Bali, as
PW1, as its AR, who has tendered in evidence besides the affidavit in
evidence, the following documents:
S. No. Documents Exhibit No.
1. Copy of GPA dated 7.2.2020 issued in my
favour by plaintiff bank.
Ex. PW1/1 (OSR).
2. Non Starter Report. Ex. PW1/2.
3. Copy of sanction dated 24.7.2018, copy of
application form, original borrower’s
Ex. PW1/3A (OSR),
Ex. PW1/3B (OSR),
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statement and copy of guarantor’s statement. Ex. PW1/3C and Ex.
PW1/3D (OSR).
4. Copy of demand promissory note dated
4.9.2018.
Ex. PW1/4 (OSR).
5. Copy of letter of authorization dated
4.9.2018.
Ex. PW1/5 (OSR) (3
pages).
6. Copy of letter of undertaking dated 4.9.2018. Ex. PW1/6 (OSR) (5
pages).
7. Copy of letter of waiver dated 4.9.2018. Ex. PW1/7 (OSR). (3
pages).
8. Copy of letter of trust receipt dated 4.9.2018. Ex. PW1/8 (OSR) (3
pages).
9. Copy of loan and hypothecation agreement. Ex. PW1/9 (OSR) (26
pages).
10. Copy of affidavit dated 26.7.2018. Ex. PW1/10 (OSR) (4
pages).
11. Copy of third party guarantee dated
26.7.2018.
Ex. PW1/11 (OSR) (11
pages).
12. Copy of notices dated 31.3.2021 along-with
original returned envelope.
Ex. PW1/12 (OSR) and
Ex. PW1/12A.
13. Certified copy of statement of account No.
0206266100000013 dated 4.9.2018 to
30.11.2023.
Ex. PW1/13 (OSR) (7
pages).
14. Affidavit under Section 2A(b) of Bankers
Books Evidence Act.
Ex. PW1/14.
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15. Affidavit under Section 65B of the Indian
Evidence Act.
Ex. PW1/15.
16. Copy of irrevocable GPA dated 26.7.2017. Ex. PW1/16 (OSR)(8
pages).
17. Copy of notice dated 8.4.2021 along-with
original returned envelope.
Ex. PW1/17 (OSR) and
Ex. PW1/17.
5. Ld. Counsel for the plaintiff submitted that the plaintiff
bank has instituted the suit through duly constituted attorney and the said
attorney duly authorized has proved the case of the plaintiff Bank against
the defendants by producing the relevant record along-with certificate
under the Bankers Book Evidence Act and the certificate u/s 65 B of the
Indian Evidence Act, 1876, as required in respect of the print outs. That the
statement of account maintained by the Bank in the regular course of
business reflects an outstanding of Rs. 5,90,746.53/- as on 31.11.202, that
besides the plaintiff is entitled to the contractual rate of rent that is @
10.80% per annum compounded monthly. On the query of the Court, Ld.
Counsel clarified that the loan was payable by 31.8.2023 in 60 equated
monthly installments of Rs 11,904/-, each, and that the defendant had made
the last payment in the account in the year 2020 after disbursal of the term
loan in the account in the year 2018. That the suit of the plaintiff is
therefore within limitation and as the documents were executed at Delhi
this Court has the territorial jurisdiction over the subject matter of the
dispute.
6. The plaintiff bank has instituted the present suit through its
then Branch Manager, as its authorized signatory, and has examined the
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same AR in evidence who has tendered the GPA in his favour dated
07.2.2020 as EX.PW1/1, nominating, constituting, appointing PW-1 to be
the lawful attorney of the Bank, to do and transact in the name and on
behalf of the bank, and in particular is vested with the power to take and
use all lawful proceedings and means for recovering all debts, advances
and claims due to the bank, to commence any action/s proceedings in any
Court of competent jurisdiction, for the recovery of any debt, sum of
money, right tile or interest, to sign verify plains, written statements,
applications and to appear and act on behalf of the bank in any Court of
law.
7. As PW-1, the AR of the plaintiff bank, has deposed along
the lines of the plaint that the Defendant No. 1 was sanctioned
Term/Vehicle Loan facility of Rs. 5.50 Lacs (Rupees Five Lacs and Fifty
Thousand Only), on his request, for purchase of new Commercial Vehicle,
"HYUNDAI XCENT T+ CNG WHITE COLOUR", vide Sanction No.
JKB/PALACE/ADV/18-NIL dated 24.07.2018, in account bearing no.
0206266100000013, that defendant no.2 stood as a guarantor in the
term/vehicle loan facility and has tendered the Sanction Letter dated
24.07.2018 as EX.PW1/3a, along-with Application form as EX.PW1/3b,
Borrower's Statement and Guarantor Statement as EX.PW1/3c and
EX.PW1/3d.
8. The documents executed following the sanction of the
present facility by the borrower and the guarantor i.e. defendant no.1 and
defendant no.2, are also proved by PW-1 i.e., Demand Promissory Note
dated 04.09.2018, Ex.PW1-4, Letter of Authorization dated 04.09.2018,
Ex.PW1/5, Letter of Undertaking dated 04.09.2018, Ex.PW1/6 , Letter of
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Waiver dated 04.09.2018, Ex.PW1/7, Trust Receipt dated 04.09.2018,
Ex.PW1/8, Loan and Hypothecation Agreement dated 26.07.2018,
Ex.PW1/9, Affidavit dated 26.07.2018, Ex.PW1/10. Besides the borrower
had executed an irrevocable GPA dated 26.07.2018, tendered as PW1/16.
The defendant no.2 as guarantor had also executed Deed of Guarantee
dated 26.07.2018, in favour of Plaintiff Bank, for securing the said
Term/Vehicle Loan facility of Rs. 5.50 Lacs (Rupees Five Lacs and Fifty
Thousand Only) tendered as Ex.PW1/11.
9. PW-1 has also established that in terms of the loan and
hypothecation Agreement, Ex.PW1/9, the said loan amount i.e. Rs. 5.50
Lacs (Rupees Five Lacs and fifty Thousand Only) was re-payable along
with the interest @ 3YR MCLR + 1.50% (fixed) i.e. 9.30% + 1.50% i.e.
10.80% P.A. with monthly rest within a period of '5 (Five) years' in 60
(Eighty) equal monthly installments of Rs.11,904/- (Rupees Eleven
Thousand Nine Hundred and Four Only), each, and that the Term/Vehicle
loan account no. A/C No. 0206266100000013 was opened on 04.09.2018,
with the Plaintiff Bank in the name of the Defendant no. l and the
Defendant No. 1 started availing Term/Vehicle Facility from the Plaintiff
Bank. The Plaintiff Bank being a banking company maintained correct,
true and regular accounts in the normal course of the Banking Business,
which statement of account is tendered as EX.PW1/3 along-with the
certificate as per Bankers Book Evidence Act as Ex. PW-1/A and the
affidavit under Sec.65-B of the Evidence Act, in support thereof as Ex.
PW-1/15.
10. It is further in the testimony of PW-1 and is duly reflected in
the account statement of the loan account that the Defendant no. 1 started
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utilizing the funds under the loan facility but on various occasions
defaulted in the due payments of the loan amounts, and was not regular in
the timely deposit of payments in the Term/Vehicle Loan Account. PW-1
has affirmed that the officials of the Plaintiff Bank time & again requested
the Defendant no. 1 to regularize the account to make the timely payments
towards his loan account, however, the Defendant no. 1 failed to pay any
heed to the said requests& reminders of the Plaintiff bank, and on account
of non-payment of the said due amount towards the Term/Vehicle loan
account no. 0206266100000013 of the Defendant no. 1, maintained with
the Plaintiff Bank and also due to the breach of the terms & conditions of
the agreements and other security documents, the account of the
Defendant no.1 was declared as 'Non- Performing Asset' (NPA) on
31.03.2021 in accordance with the directives and guidelines of Reserve
Bank of India'.
11. The following payments were made by the defendant no. 1
in the Term/Vehicle loan account before his account was declared as NPA:
1. Rs. 25,300/- 18.02.2019
2. Rs. 36,000/- 28.06.2019
3. Rs. 36,000/- 18.09.2019
4. Rs. 36,000/- 16.12.2019
5. Rs. 24,000/- 29.02.2020
6. Rs. 15,000/- 23.09.2020
7. Rs. 545.79/- 05.11.2020
8. Rs. 30,000/- 30.12.2020
12. The last payment was made by the Defendant No.1 in his
Term/Vehicle Loan account was on 30.12.2020 and thereafter defendant
no.1 permanently stopped payments in the account, as has been affirmed
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by PW-1 and is evident from the statement of account Ex. PW-1/13 as well.
The Plaintiff Bank, on 31.03.2021 Ex. PW-1/12 and on 08.04.2021 also,
issued demand notices to the Defendants, informing them about the
amount outstanding against them and calling upon them to clear the
outstanding, but Defendants did not pay any heed and failed to repay the
outstanding amount.
13. The plaintiff Bank seeks to recover from the defendants
jointly as well as severally the outstanding reflected in the statement of
account as on 30.11.2023 which is an amount of Rs.5,90,746.53/- along-
with interest @10.80% compounded monthly wef 1.12.2023 till actual
realization. The Term Loan was to be repaid in 60 monthly installments
starting with effect from 04.09.2018 up-to 04.09.2023. The entire unpaid
loan amount became outstanding along-with interest computed thereon as
agreed compounded thereto as on 4.9.2023 when the last installment was
to be received in the account. The statement of account reflects this
outstanding as on the date of the last installment receivable as
Rs.5,69,909/-. The plaintiff therefore is held entitled to recover this amount
calculated as outstanding down to the last installment payable as on
4.9.2023, in the sum of Rs.5,69,909/- along-with interest at the rate of
10.80% ie. the contractual rate, to be calculated and applied per annum, for
it is by way of a penal consequence that a provision is made to compound
the interest at monthly or any other rests.
14. It has also been established on the record that while the
Defendant No. 1, in unequivocal terms had agreed that he will adhere to all
the terms and conditions of the Agreement for Term/Vehicle loan facility
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and to all the terms and conditions mentioned in security documents of
Term/Vehicle Loan facility and shall timely pay the monthly installments
due towards the Term/Vehicle account as per the terms and conditions of
the Loan Agreement and other security Documents executed in favour of
the Plaintiff Bank, the Defendant no. 2 had guaranteed to the Plaintiff Bank
for the complete repayment of all monies including principal monies,
interest there upon at the ruling rate and other cost & expenses charged by
the Plaintiff Bank which may at any time be due from the Defendant no. 1.
The liability of the defendant no.2 as guarantor being joint and co-
extensive with the Defendant No. 1, both the Defendants are therefore held
jointly and severally liable to pay the said amount that that the plaintiff is
held entitled to recover in the term loan account no.0206266100000013.
RELIEF
15. The suit of the plaintiff is accordingly decreed in the terms
that the plaintiff is held entitled to recover from the defendants jointly and
severally, an amount of Rs.5,69,909/- alongwith interest @ 10.80% per
annum w.e.f. 01.10.2023 till actual realization, with no order as to costs.
Decree sheet be prepared accordingly. File be consigned to
the record room.
Announced in the open Court today
Dated : 2nd December, 2025.
(Neelofer Abida Perveen)
District Judge (Commercial Court)-01
Central District/THC/Delhi.
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