Final Order 10

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. SANJEEV KUMAR SINGH, DISTRICT
JUDGE(COMMERCIAL COURT)-13, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
CS (COMM.) No. 1353/2023
CNR NO. DLCT02-014291-2023
UCO BANK
A body of corporate Constituted
under the Banking Companies(Acquisition and Transfer of
Undertaking), Act 1970, having its Head Office at 10 B.T.M
Sarani, in the town of Kolkata and amongst other branches at
17B, New Colony, Model Basti, New Delhi-110005.
…..... PLAINTIFF
VERSUS
MR. SIFTEN AHMAD ANSARI
Prop. M/s Luck Box Maker
B-436, Gali No. 20,
Shri Ram Colony,
Karawal Nagar, Delhi-110094 ….. DEFENDANT
Date of Institution : 14.10.2023
Judgment Reserved on : 15.02.2024
Date of Decision : 15.02.2024
EX-PARTE JUDGMENT:
1. It is a civil suit filed by the plaintiff bank seeking recovery of
Rs. 6,20,673.52 alongwith pendent lite and future interest @ 10.70 p.a
till realization.
BRIEF FACTS:
Case of the plaintiff:
2. The version of the plaintiff is that UCO Bank is a body of
corporate Constituted under the Banking Companies(Acquisition and
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Transfer of Undertaking), Act 1970; that Mrs. Rashmi Mathur, the
Branch Manager of the plaintiff bank was duly constituted attorney of
the plaintiff, who was fully conversant with the facts of present suit on
the basis of records maintained by the plaintiff bank in ordinary course
of its business. It is pertinent to mention herein that later on vide order
dated 15.02.2024 Ms. Rashmi Mathur was substituted with Ms. Tripti
Kumari on an application for substitution of AR, filed on behalf of
plaintiff bank.
3. It is further the version of the plaintiff that defendant namely
Mohd. Siften Ansari Proprietor of M/s Lucky Box Maker is the borrower
of plaintiff bank, who approached the plaintiff bank on March, 2019 and
requested to sanction sum of Rs. 5,00,000/-as cash Credit limit under
Pradhan Mantri Mudra Yojana; that on the Loan Application dated
25.03.2019, plaintiff bank sanctioned a sum of Rs. 5,00,000/- as cash
credit limit under Pradhan Mantri Mudra Yojana on 26.03.2019; that
defendant accepted all terms and conditions of Sanction Letter and
defendant executed Hypothecation of goods to secure a demand cash
credit dated 26.03.2019 and agreed to pay the plaintiff bank a sum of
Rs. 5,00,000/- with interest thereon @ 08.85% monthly rest. Defendant
also executed following documents:-
1) Form No. A-1-C.P, dated 26.03.2019.
2) Form No. A-47, dated 26.03.2019
3) Form No. A-3, dated 26.03.2019
4. It is further the version of the plaintiff that plaintiff bank on
scrutiny of all the above mentioned documents disbursed sum of Rs.
5,00,000/- in the account of defendant by opening account No.
04880510000717, which was duly availed and utilized by defendant as
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per his requirement, however defendant failed to adhere the financial
discipline as required under the loan documents.
5. It is further the version of the plaintiff that defendant was
requested time and again to repay the outstanding amount of plaintiff
bank, but defendant did not pay any heed and account of the plaintiff
was declared as NPA on 02.07.2021. Therefore Legal Notice dated
08.06.2022 was sent to the defendant demanding the entire outstanding
amount. The defendant is liable to pay the following amount to the
plaintiff bank:-
Principal outstanding as on 31.05.2021 Rs. 5,35,010.44
Interest occurred from 01.06.2021 to 30.04.2023 Rs. 85,663.08
Total amount Rs. 6,20,673.52.
6. It is further the version of the plaintiff that present suit is a
commercial matter as defined under Section 2(i)(c) of The Commercial
Courts Act, 2015.
7. It is further the version of the plaintiff that plaintiff had applied on
20.12.2022 to the Central District Legal Service Authority calling the
defendant to settled the matter as compliance of the provisions of
Commercial Court Act for Pre-Institution Mediation; that on issuance of
notice defendant appeared on 20.01.2023, but refused to participate in
the Mediation and Non-Starter report dated 13.04.2022 was issued. By
way of the present suit it is prayed that the present suit may be decreed
in the sum of 6,20,673.52	₹ with pendente lite and future interest @
10.70 per annum till realization of the decreetal amount. Costs of the
suit has also been prayed for.
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Defendant is Exparte:-
8. The summons of the suit were sent to defendant by way of
ordinary mode of service, however the same could not be served upon
the defendant and thereafter on an application u/o 5 Rule 20 CPC,
defendant was served by way of publication in the newspaper namely
“Rashtriya Sahara”, dated 26.12.2023. However, despite service
defendant did not cause appearance and was accordingly ordered to be
proceeded ex-parte vide order dated 07.02.2024.
EVIDENCE & LIST OF DOCUMENTS:
9. The plaintiff has examined PW-1 Ms. Tripti Kumari, AR of
plaintiff bank, as its sole witness.
10. PW-1 tendered his evidence by way of affidavit Ex. PW1/A and
reiterated the contents of plaint and relied upon following documents:-
1) Delegation of Power in favour of the plaintiff bank is Ex. PW-1/1(OSR).
2) Copy of Loan Application dated 25.03.2019 is Ex. PW-1/2(OSR).
3) Copy of Sanction Advice(Letter) dated 26.03.2023 is Ex. PW-1/3(OSR).
4) Copy of hypothecation of goods is Ex. PW-1/4(OSR).
5) Copy of Form No. A-1-C-P dated 26.03.2019 is Ex. PW1/5(OSR).
6) Copy of Form No. A-47 dated 26.03.2019 is Ex. PW1/6(OSR).
7) Copy of Form No. A-3/UTI dated 26.03.2019 is Ex. PW1/7(OSR).
8) Demand Legal Notice dated 08.06.2022 is Ex. PW1/8.
9) Certified copy of statement of account is Ex. PW1/9.
10) Copy of Non-Starter Report dated 13.04.2023 is Ex. PW1/10.
11. I have heard the arguments advanced by the learned counsel for
the plaintiff and perused the record.
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12. At the very Outset, I may observe that the provisions of Section 2
(1) (c) (i) of Commercial Courts Act, 2015 are very clear which reads
as under:
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers
and traders such as those relating to mercantile
documents, including enforcement and interpretation of
such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines,
aircraft equipment and helicopters, including sales, leasing
and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including
tenders;
(vii) agreements relating to immovable property used
exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x)management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to
the services industry including outsourcing services and
financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered and
unregistered trademarks, copyright, patent, design, domain
names, geographical indications and semiconductor
integrated circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and
(xxii) such other commercial disputes as may be notified by
the Central Government.
13. The provisions of Section 2(1) (c)(i) of the Commercial Courts
Act, 2015 as above are very much clear. It is important to notice that the
crucial expression that connects the classes of persons i.e. merchants,
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bankers, financiers and traders to the expression mercantile documents
are the words “such as”.
14. Hon’ble Calcutta High Court in Ladymoon Towers Private Ltd.
Vs. Mahendra Investment Advisors Private Limited(I.A No. G.A 4 of
2021 in C.S 99 of 2020 order dated 13.08.2021). After setting out the
dictionary meanings of the expressions “merchants” “bankers” “traders”
and “financiers” the learned judge proceeded to observe as under:
“The definition section of the 2015 Act only contemplates a
“commercial dispute” and not any other form of dispute where the
basis of disagreement between the parties has a non-commercial
cause. The graduation of disputes in Section 2(1)(c) taking into
account all possible forms of agreements from which a “commercial
dispute” may arise, makes it clear that the framers of the statute
gave emphasis on the commercial flavour of the transaction as
opposed to agreements entered into between parties without a
commercial purpose. The qualification of the person being a
Merchant, Banker, Trader or Financier imparts an unimpeachable
commercial flavour to the transaction and the resulting dispute. The
insolvency and Bankruptcy Cod, 2016, for example, defines a
dispute from a broader perspective as any suit or arbitration
proceedings relating to an existing debt – Section 5(6)(a). The
commercial purpose would generally mean a transaction by which a
person’s commercial or economic interests may be advanced and
would result in an economic benefit to that person. It would not
include an agreement where profit-making is an incidental outcome
of the transaction or may happen by accident. Although, a “hand
loan”, for example, is given by a person or entity to another with the
expected outcome of the principal sum being returned with interest,
the essential commercial flavour in such a loan may be lost by
reason of the informal terms under which the money is lent and
advanced and the consequent uncertainty which may result
therefrom.”
Therefore, the facts which are alleged in the plaint come under the
commercial dispute.
15. Now, the next question is whether this Court has the pecuniary
jurisdiction to adjudicate the matter which is in dispute. The provisions
of Section 3 of Commercial Courts Act, 2015 provides that:
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Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the
concerned High Court, by notification, constitute such
number of Commercial Courts at District level, as it may
deem necessary for the purpose of exercising the jurisdiction
and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having
ordinary original civil jurisdiction, the State Government
may, after consultation with the concerned High Court, by
notification, constitute Commercial Courts at the District
Judge level:
Provided further that with respect to a territory over which
the High Courts have ordinary original civil jurisdiction, the
State Government may, by notification, specify such
pecuniary value which shall not be less than three lakh
rupees and not more than the pecuniary jurisdiction
exercisable by the District Courts, as it may consider
necessary.]
3[(1A) Notwithstanding anything contained in this Act, the
State Government may, after consultation with the concerned
High Court, by notification, specify such pecuniary value
which shall not be less than three lakh rupees or such higher
value, for whole or part of the State, as it may consider
necessary.]
16. The Commercial Courts Act was amended on 03.05.2018 and by
virtue of the amendment and by virtue of notification, the pecuniary
jurisdiction of the commercial courts shall not be less than Rs.
3,00,000/-. In the present case, the claimed amount as mentioned in the
plaint is of Rs. 6,20,673.52/- and as such this court is having jurisdiction
to adjudicate the matter which is in dispute.
17. This court has territorial jurisdiction to try the present suit since
the defendant approached the plaintiff for sanctioning of loan at 17-B,
New Colony, Model Basti, New Delhi, plaintiff disbursed the said loan
to the defendant at the above mentioned address and defendant is
residing and working in Delhi within jurisdiction of this court.
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18. The suit of the plaintiff is well within the limitation as loan was
sanctioned on 26.03.2019 and last payment was made by the defendant
on 24.06.2021.
19. The entire testimony of PW-1 has gone unrebutted in view of
which the claim of plaintiff has gone undisputed and uncontroverted.
There is no reason to disbelieve the same.
20. Keeping in view the above discussion, the suit of the plaintiff is
hereby decreed and it is hereby hold that the plaintiff bank is entitled to
recover the amount of Rs. 6,20,673.52. So far as the interest component
is concerned, the plaintiff has claimed interest @ 10.70 % per annum
which is in my considered opinion is excessive and, therefore, in the
interest of justice, the plaintiff is entitled to the recovery of principal
amount of Rs. 6,20,673.52 along with interest @ 9 % per annum from
the date of filing of the suit till realization from the defendant.
21. Cost of the suit is also awarded in favour of the plaintiff bank.
22. Decree sheet be prepared accordingly.
23. File be consigned to Record Room after due compliance.
Announced in the open court
Dated: 15.02.2024
(Sanjeev Kumar Singh)
District Judge, Commercial Court-13
Central District, Tis Hazari Courts,
Delhi/15.02.2024
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