Final Order 8

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. ARJUN KIRAR: CIVIL JUDGE
NORTH WEST: ROHINI COURTS: DELHI
CS No. 1042/23
CNR No. DLNW03-002177-2023
Central Bank of India
A body corporate constituted under the Banking Companies
(Acquisition & Transfer of Undertakings) Act'
having its Head Office at Chander Mukhi,
Nariman Point, Mumbai-400021, inter-alia
including having of its branch office at DDA
Rohini, Delhi-1100085.
.... Plaintiff
Versus
1. Mr. Sunil
S/o Sh. Nayak Chand
2. Mr. Amit
S/o Sh. Nayak Chand
Both R/o H. No.63,
Balmiki Mohalla, Tughlakabad,
Village Badarpur,
Delhi-110044 ...Defendants
SUIT FOR RECOVERY
Date of institution : 10.08.2023
Date of decision : 01.05.2025
Final Order : Exparte decreed.
EX-PARTE JUDGMENT
BRIEF FACTS:-
1. Brief facts of the case as per the plaintiff are that the
plaintiff bank is a body corporate constituted under the provisions
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of Banking Companies (Acquisition and Transfer of
Undertaking) Act, 1970 and the present suit has been filed
through the Chief Manager/Authorized Officer of the plaintiff Sh.
Harish Nehra.
It is averred that in the month of Februay 2018, defendant
no.1 as principal borrower and defendant no.2 as guarantor
approached the plaintiff bank for a loan amount of Rs.7,50,000/-.
The said loan was also accompanied by respective guarantor’s
consent letter dated 02.02.2018 duly signed by defendant no.2 as
guarantor. The defendant no.2 executed guarantee agreement
dated 19.02.2018 to secure the liability of defendant no.1. After
consideration of the proposal of the defendant, the plaintiff bank
sanctioned a loan of Rs.7,50,000/- in favour of defendant no.1
vide loan account No. 4009714519 and by transferring the same
in the saving account of defendant no.1. After availing the loan
facility from the plaintiff bank, the defendant no.1 failed to
maintain financial discipline in the loan and has committed
defaults in the payment of the loan amount as a result of which
the loan amount became irregular and ultimately the defendant
failed to pay the loan amount despite various reminders by the
plaintiff. The loan account was declared as NPA by the plaintiff
bank on 28.02.2023. Thereafter, defendant no.1 tendered a
cheque bearing No. 230893/- for a sum of Rs.2,17,792.07/-, dated
02.06.2023 for repayment of outstanding amount of loan,
however, the said cheque got dishonored vide return memo dated
02.06.2023. A legal notice dated 14.06.2023 was also sent to the
defendants demanding to deposit Rs.2,17,792.07/- alongwith
interest @ 11.15 wef 09.06.2023 till the date of repayment,
however, it failed to achieve the desired result. Hence, this suit.
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2. Upon service of summons through publication, defendants
never appeared before the court and upon non filing of WS, the
defence of the defendants was struck off vide order dated
01.06.2024. The defendants proceeded
ex-parte vide order dated
05.09.2024.
TRIAL
3. Plaintiff led its evidence and examined its AR, Ms. Harish
Nehra, Manager at plaintiff bank as PW1
vide affidavit Ex.
PW1/A wherein he reiterated the contents of the plaint and
proved the following documents:
1 Ex. PW-1/1- General Power of Attorney dt. 08.10.2014
(OSR)
2 Ex. PW-1/2- Loan application form dt. 02.02.2018
3 Ex. PW-1/3- Guarantors consent letter dt. 02.02.2018
4 Ex. PW-1/4- Copy of undertaking letter dt. 09.02.2018
5 Ex. PW-1/5- Sanction letter dt. 19.02.2018
6 Ex. PW-1/6- Articles of agreement dt. 19.02.2018
7 Ex. PW-1/7- Demand promissory note dt. 19.02.2018
8 Ex. PW-1/8- Letter of interest variation dt. 19.02.2018
9 Ex. PW-1/9- Letter of waiver dt. 19.02.2018
10 Ex. PW-1/10- Letter of Guarantee dt. 19.02.2018
11 Ex. PW-1/11- Letter dt. 27.10.2022
12 Ex. PW-1/12- Letter dt. 28.02.2023
13 Ex PW-1/13- Letter dt. 09.05.2018
14 Ex PW-1/14 Letter dt. 01.12.2022
15 Ex. PW-1/15- Legal notice dt. 01.07.2023
16 Ex. PW-1/16- postal receipt dt. 01.07.2023
17 Ex. PW-1/17- Statement of account alongwith force
closure statement.
4. The witness was not cross examined as the defendants
were already
ex-parte.
5. No other witness was examined and PE stood closed on
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05.09.2024.
6. Arguments heard. Record perused.
FINDINGS
7. The burden to prove its case was upon the plaintiff by
virtue of Section 101 of the Indian Evidence Act,1872.
7.1 It is pertinent to note that plaintiff evidence in ex-parte
proceedings remained unchallenged and unrebutted does not
mean that the case set up and the evidence adduced in support
thereof would not be judicially scrutanized. The case set up by
the plaintiff and the supporting evidence have to be tried and
tested on the touchstone of the rules of evidence and the other
laws, just like any other case. No adverse inference can be drawn
against the defendant on the mere premise that they suffered the
proceedings ex-parte. Decisions reported as Shiv Nandan
Sachdeva (Sh.) Vs. Smt. Ruby, 2009 v (Delhi) 55 and M.P.
Narayan vs. Sm. Before Sudhadevi & amp; Ors, AIR 1986 Cal.
256 can be referred to in this regard.
7.2 The plaintiff bank examined its Manager as PW-1 who
duly proved the contents of the plaint as well as documents relied
upon by the plaintiff. His testimony to the effect that an amount
of Rs.2,17,792.07/- became due against the defendants as the
defendant defaulted in the payment of the loan amount, and that
the said amount is still outstanding against the defendants have
gone unrebutted and uncontested in the absence of any cross
examination by the defendant to this effect. The uncontroverted
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testimony is duly corroborated by other documents placed on
record. There is nothing on record to disbelieve the same. The
suit is otherwise well within limitation.
The unrebutted testimony of the witness stands proved.
7.3 Plaintiff has also claimed interest @ 11.15% from
09.06.2023 upon the decretal amount. In my opinion the interest
claimed is on a higher side and interest @ 6 % p.a. shall be
sufficient to meet the ends of justice.
RELIEF
8. For the reasons assigned herein above, plaintiff has
successfully proved its case. A decree for recovery of sum of
Rs.2,17,792.07/- along with rate of interest @ 6 % per annum
from the date of institution of the suit till its actual realization is
hereby passed in favor of the plaintiff and against the defendant.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open Court today.
(Arjun Kirar)
Civil Judge-N/W District
Rohini Courts/01.05.2025
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