Final Order 16

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
CS (Comm) No. 138/2022
CNR No. DLND01-000942-2022
In the matter of:
CANARA BANK
(Erstwhile Syndicate Bank)
A body corporate constituted under the
Banking Companies (Acquisition &
Transfer of Undertakings) Act 1970,
Having its Head Office at 112, J. C.
Road, Banglore & Branch amongst
others at Delhi National Physics Lab
(NPL) PUSA Branch at PUSA, Dr. K. S.
Krishnan Marg, New Delhi-110015.
…..... Plaintiff
Versus
Sh. Sandeep Kumar
Proprietor: M/s Maa Anjani Packers,
S/o Sh. Shiv Kumar,
Warehouse No. 3 (Plot No. 3),
Killa No. 17/6, Surat Nagar, Ph-2,
Dhanwarpur Road, Gurugram, Haryana.
Also at: HouseNo. UD-9, Upvan Vihar,
Sector-109, New Palam Vihar, Choma-62,
Gurugram, Haryana.
......Defendant
Date of institution of suit : 07.02.2022
Judgment reserved on : 15.07.2023
Date of Judgment : 09.08.2023
Appearance : Sh. Manoj Kumar Arora, Ld. Counsel for plaintiff.
Defendant ex-parte.
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 1 of 12
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JUDGMENT
1. This suit for recovery of Rs. 15,89,999/- (Rupees Fifteen
Lacs Eighty Nine Thousand Nine Hundred Ninety Nine Only)
along-with pendente lite & future interest and costs from the date
of filing of case till realization of amount has been filed by
plaintiff, Canara Bank against the defendant, Sandeep Kumar
2. Briefly, the facts as alleged in the plaint are that the
defendant, Sole Proprietor of M/s Maa Anjani Packers, running
the business of manufacturing & trading of corrugated boxes,
corrugated sheets and corrugated paper rolls and packaging boxes
etc had submitted loan application for grant of working capital /
open cash credit / OCC / ODBD for a sum of Rs. 10.0 lacs under
Pradhan Mantri Mudra Yojna (PMMY) Scheme along with his
particulars of assets on 20.02.2019 and photocopies of KYC
documents including copies of address proofs, ITR Bank
statement / passport and trade documents etc. The defendant had
also submitted the stock statement as well as list of debtors and
creditors as on 25.02.2019 on his letter head with the plaintiff. The
plaintiff had considered the said loan application dated 20.02.2019
along with its annexures etc and sanctioned the loan facility on
27.02.2019 under PMMY Scheme covered under CGTMSE cover.
The loan was repayable along with interest @ 9.75% per annum
compounded monthly (floating) (or at such other rate as may be
notified from time to time and secured with cover under CGTMSE
and in case of default along with Penal Interest @ 2% per annum
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 2 of 12
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simple besides all other charges etc. The Defendant had also
executed loan documents and security documents in favour of the
plaintiff on 27.02.2019 as per details mentioned in Para no. 6 of
the plaint.
2.1 The above said credit facility was secured through the
security coverage under CGTMSE scheme as noted by
Government of India for MSME loans. The defendant being sole
proprietor had again approached the plaintiff vide his hand written
letters dated 19.09.2019 & 19.12.2019 for grant of additional
OD/working capital limit of Rs. 1.0 lac each for a short period to
meet his business requirement despite grant of earlier facility in
his favour. The defendant again approached for a term loan / CCS
Covid-19 loan of Rs. 1.0 lac to built up his current access and to
meet his business operational liability. The defendant submitted
his own application in last week of May, 2020 under RBI Covid
Relief Scheme along with his KYC document including address
proof, ITR and trade documents etc. The plaintiff sanctioned
above facility of Rs. 1.0 lac on 27.05.2020. The defendant also
executed documents on 27.05.2020 as per details mentioned in
Para no. 13 of the plaint.
2.2 The defendant again approached the plaintiff for grant of
additional loan facility in nature of Guaranteed Emergency Line of
Credit (in short GELC) of Rs. 2.0 lacs. The plaintiff considered
the loan application and sanctioned loan facility on 26.06.2020
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 3 of 12
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repayable in 48 installments with moratorium period of 12 months
and 36 monthly installments of Rs. 6,686.13 @ 7.05% per annum
compounded monthly. The defendant executed documents as per
details mentioned in Para no. 17 of the plaint.
2.3 It is the claim of the plaintiff that the above said
facilities were continued to be secured by way of hypothecation of
book debit, machineries and stock in trade etc by the defendant
lying in his premises at Gurugram. It is alleged that the defendant
failed to keep financial discipline and route the sale proceeds
through fresh credit loan account. The proper & authenticated
stock statement were not submitted by the defendant and the
factory premises was stated to be closed for unknown reasons. The
hypothecated machineries and stocks were found to be either
removed or disposed off by the defendant. As such, the defendant
committed various violation to the terms & conditions and the
aforesaid open cash credit / ODD loan account of the defendant
become overdrawn. Notices & reminders were sent through email
dated 29.07.2020, 20.03.2021 & 23.03.2021 respectively to the
defendant asking him to comply with the terms & condition of
outstanding loan account. The defendant has deposited some part
payment on 02.07.2020, 18.07.2020, 24.04.2020, 25.07.2020,
19.09.2020 & 06.08.2021 etc in his aforesaid OCC / ODBD Loan
Account but he did not regularize the said account. The loan
account of the defendant was declared NPA on 31.08.2021. A legal
notice dated 04.10.2021 was sent to the defendant but the
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 4 of 12
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defendant failed to respond back. It is a claim of the plaintiff that
as such a sum of Rs. 15,89,999/- has become due and outstanding
as on the date of filing of present suit, towards total outstanding
liability in the loan accounts, inclusive of unapplied interest @
10.65% per annum compounded monthly and Penal interest @ 2%
per annum simple against defendant as mentioned in calculation
table as under:-
Total liability in OCC/ODBD Loan Account No. 91001400000157
S.
No.
PARTICULARS AMOUNT
A. Amount due and outstanding along with
interest debited upto 31.12.2021 (but after
deductions of various deposits by the
defendant taken up till date)
Rs. 11,90,668/88 ps
B. Towards Bank and other legal notice &
other charges etc.
Rs. 31,000/
C. Towards unapplied interest from
01.01.2022 till 31.01.2022 at the applicable
rates presently @ 10.65% p.a. compounded
monthly
Rs. 13240/12 ps
D. Towards Penal interest from 01.09.2021 till
31.01.2022 @ 2% p.a. simple
Rs. 11,519/
Total Rs. 12,46,428/
Total liability in CCS (Covid-19) Term Loan Account No. 91009580000036
S.
No.
PARTICULARS AMOUNT
A. Amount due and outstanding along with
interest debited upto 31.12.2021 (but after
deductions of various deposits by the
defendants taken up till date)
Rs. 1,13,925.13 ps
B. Towards unapplied interest from Rs. 674.87 ps
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 5 of 12
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01.01.2022 till 31.01.2022 at the applicable
rates presently @ 10.65% p.a. compounded
monthly
C. Towards adjustments in Penal interest from
01.09.2021 till 31.01.2022 @ 2% p.a.
simple.
Rs. 1312/
Total Rs. 1,15,912/
Total liability in GECL Loan Account No. 91009160000122
S.
No.
PARTICULARS AMOUNT
A. Amount due and outstanding along with
interest debited upto 31.12.2021 (but after
deductions of various deposits by the
defendants taken up till date)
Rs. 2,24,538.27 ps
B. Towards unapplied interest from
01.01.2022 till 31.01.2022 at the applicable
rates presently @ 10.65% p.a. compounded
monthly
Rs. 1277.73 ps
C. Towards adjustments in Penal interest from
01.09.2021 till 31.01.2022 @ 2% p.a.
simple.
Rs. 1843/
Total Rs. 2,27,659/
TOTAL IN ALL THE LOAN ACCOUNTS
S.
No.
PARTICULARS AMOUNT
A. Total liability in OCC/ODBD Loan
Account No. 91001400000157 as on
31.01.2022
Rs. 12,46,428/
B. Total liability in CCS (Covid19) Term
Loan Account No. 91009580000036 as on
31.01.2022
Rs. 1,15,912/
C. Total Liability in GECL Loan Account No. Rs. 2,27,659/
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 6 of 12
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91009160000122 as on 31.01.2022
Total Rs. 15,89,999/
2.4 It is alleged that this Court has jurisdiction to entertain
and try the present suit. The plaintiff has filed an application for
pre institution mediation before New Delhi Legal Service
Authority on 25.10.2021 and non starter report was issued on
21.12.2021 upon failure of any mediation or settlement. The
present suit is within the period of limitation as the last payment
has been received on 06.08.2021 from defendant in his OCC /
ODBT loan account and for other account w.e.f. 27.05.2020 &
26.06.2020 respectively. Hence, this suit for recovery.
3. Summons of suit was sent to the defendant. Defendant
did not appear in the present matter despite publication in
newspaper Dainik Jagaran dated 14.08.2022 and he was
proceeded ex-parte vide order dated 15.09.2022. Thereafter, the
matter has been proceeded for plaintiff's evidence.
4. The plaintiff to prove its claim examined PW-1 Sh.
Saurabh Gupta, Branch Manager, who has tendered his affidavit in
evidence Ex PW1/A and exhibited the documents from Ex. PW1/1
to Ex. PW1/40.
5. I have heard arguments advanced by the Learned
Counsel for the plaintiff and have perused the evidence as well as
documents proved on record.
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6. The plaintiff in order to establish its case examined Sh.
Saurabh Gupta, Branch Manager as PW1. This witness tendered
his affidavit in evidence as Ex. PW1/X and makes statement in
consonance with averments made in the plaint. He proved copy of
Power of Attorney in his favour Ex. PW1/A along with Certificate
under Section 65-B of Indian Evidence Act Ex. PW1/B (colly). He
also proved copy of Gazatte Notification dated 04.03.2020 along
with letter of RBI dated 28.03.2020 Ex. PW1/C (Colly). He
deposed that the defendant has availed loan facility, which the
plaintiff has sanctioned vide letter of sanction letter dated
27.07.2019. He proved loan application along with particular of
asset both dated 20.02.2019 Ex. PW1/1 and KYC documents,
stock statement as well as list of debtors and creditors as on
25.02.2019 besides photograph of the work premises and
machineries Ex. PW1/2 (colly) submitted with the said loan
application. He further proved signatures specimen card dated
27.02.2019 Ex. PW1/4, letter of undertaking of CGSTME scheme
Ex. PW1/5, Letter of undertaking Ex. PW1/6, letter of
conformation of CGSTME scheme Ex. PW1/7, letter of
undertaking Ex. PW1/8, power of attorney for collection of bills
Ex. PW1/9, composite hypothecation agreement Ex. PW1/10, all
dated 27.02.2019. This witness also proved signatures of the
defendant on the documents Ex. PW1/4 to Ex. PW1/10 at Point
“Z”. PW1 also proved office copy of application under CGTSME
scheme Ex. PW1/11 and letters dated 19.09.2019 & 19.12.2019 as
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 8 of 12
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issued by defendant under his signatures at Point “Z” Ex. PW1/12
& Ex. PW1/13. He also deposed that RBI had issued various
notifications including dated 27.03.2020, 17.04.2020 &
23.05.2020 for offering regulatory package to the borrowers of the
bank, thereby, rescheduling the payment by offering the
moratorium on payments of EMI etc and also offering the funded
interest term loan by converting the accumulated interest of
deferment over the credit facility such as OCC / ODBD etc. as Ex.
PW1/D.
6.1 PW1 further deposed that the plaintiff sanctioned the
CCS (Covid-19) Term Loan Facility of Rs. 1.0 lac vide sanction
letter dated 27.05.2020 Ex. PW1/14. He proved specimen
signature card Ex. PW1/15, letter of undertaking Ex. PW1/16,
letter of undertaking (annexure 2) Ex. PW1/17, DPN for Rs. 1.0
lac Ex. PW1/18, Take delivery letter to DPN and agreement terms
Ex. PW1/19 and agreement cum deed of hypothecation Ex.
PW1/20 all dated 27.05.2020.
6.2 PW1 further testified that there was Covid pandemic in
the year 2020. The defendant approached plaintiff for grant of
additional loan facility in the nature of Guaranteed Emergency
Line of Credit of Rs. 2.0 lacs as noted by Government of India
through RBI during Covid period. By submitting, loan application
dated 26.06.2020 Ex. PW1/21, the plaintiff considered the
proposal and sanctioned vide Sanction Letter Ex. PW1/22. The
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 9 of 12
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defendant executed the documents in respect thereof Ex. PW1/23
to Ex. PW1/29, undertaking to follow the terms & conditions as
stated therein. PW1 further testified that notices & reminders were
issued to the defendant through email dated 29.07.2020,
20.03.2021 & 23.03.2021 asking the defendant to comply the
terms & conditions of outstanding loan amount Ex. PW1/30.
7. The above testimony of PW1 along with documents on
record show that defendant has availed loan facility (s), which had
been sanctioned by the plaintiff and defendant after availing the
said facility failed to maintain the financial discipline and not
submitted authenticated stock statement. The defendant closed the
factory premises, hereby, violating the terms & conditions
mentioned in the sanction letter Ex. PW1/3, Ex. PW1/14 & Ex.
PW1/21. As per Statement of Account along with memorandum of
calculation Ex. PW1/34, Ex. PW1/35, Ex. PW1/36 & Ex. PW1/37
or the loan accounts were classified as NPA and further shows
that outstanding liability against the defendant in respect of three
loan accounts i.e. Rs. 12,46,428/-, Rs. 1,15,912/- & Rs. 2,27,659/-
respectively. The Statement of Account are supported with
Certificate under Section 65-B of the Evidence Act and the
Banker’s Books of Evidence Act Ex. PW1/38, Ex. PW1/39 & Ex.
PW1/40 respectively. The plaintiff has proved legal notice dated
04.10.2021 along with postal receipt Ex. PW1/31 & Ex. PW1/32
respectively. There is no rebuttal to the above documents of the
plaintiff as the defendant preferred to proceed ex parte for the
CS (Comm) 138/2022 Canara Bank Vs. Sandeep Kumar. Page 10 of 12
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reason best known to him despite service of summons by way of
publication.
8. The entire testimony of plaintiff’s witness stands un-
rebutted and there is no reason to disbelieve the same. The
plaintiff has cogently established that defendant had availed the
above said facility (s) but failed to repay to the plaintiff in
accordance with terms and conditions. From un-rebutted
testimony of plaintiff’s witness and the documents proved on
record, the plaintiff has successfully established its case for
recovery of amount i.e. Rs. 12,46,428/-, Rs. 1,15,912/- & Rs.
2,27,659/- respectively in respect of loans as discussed above. The
plaintiff is entitled for recovery of the same.
9. Considering the nature of dispute between the parties
being commercial, this Court feels interest can be granted @ 6%
per annum which would meet the ends of justice. Under these
circumstances, the plaintiff is entitled for interest of aforesaid loan
amount @ 6% per annum from the date of institution of suit till its
realization.
Relief.
10. In view of above discussions, suit for recovery is
decreed in favour of the plaintiff and against the defendant for an
amount i.e. Rs. 12,46,428/-, Rs. 1,15,912/- & Rs. 2,27,659/-
respectively along-with pendente lite and future simple interest @
6% per annum from the date of institution of suit till its
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realization. The plaintiff has also claimed the costs of suit.
11. Keeping in view provisions as contained in Section
35 and Section 35A of CPC, more particularly when the defendant
has not contested the claim of the plaintiff, the defendant is held to
be liable to be bear costs. Accordingly, the plaintiff is entitled for
costs of litigation and the costs of the suit. The Advocate fee is
assessed to be Rs. 50,000/- only and same is hereby awarded in
favour of plaintiff. Cost suit i.e. court fee etc., are also awarded in
favour of plaintiff.
12. Decree sheet be prepared accordingly.
13. File be consigned to record room.
Pronounced in the open Court (VINEETA GOYAL)
on this 09.08.2023 District Judge (Commercial-03)
Patiala House, New Delhi
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