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. 1041/23
CNR No. DLNW03-002179-2023
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. Itwari Lal
S/o Sh. Bhola,
2. Mr. Rakesh
S/o Mr. Itwari Lal,
Both R/o H. No. 142, Gali no.17, Road no.19,
Sangam Vihar, Delhi-62.
...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
of Banking Companies (Acquisition and Transfer of
Undertaking) Act, 1970 and the present suit has been filed
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through the Chief Manager/Authorized Officer of the plaintiff Sh.
Harish Nehra.
It is averred that in the month of May 2018, defendant no.1
as principal borrower and defendant no.2 as guarantor
approached the plaintiff bank for a personal loan amount of
Rs.7,50,000/-. The said loan application was also accompanied
by respective guarantor’s consent letter dated 04.05.2018 duly
signed by defendant no.2 as guarantor.
1.2 The defendant no.2 executed guarantee agreement dated
19.05.2018 to secure the liability of defendant no.1. After
consideration of the proposal of the defendant, the plaintiff bank
disbursed a loan of Rs. 7,50,000/- in favour of defendant no.1
vide loan account No.4014266773 by transferring the same in his
saving account. After availing the loan facility from the plaintiff
bank the defendant 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. Ultimately the plaintiff
bank had to recall the outstanding amount with accrued interest
and the loan account was declared as NPA by the plaintiff bank
on 29.11.2022. A legal notice dated 13.06.2023 was also sent to
the defendants requesting to deposit Rs. 2,46,430/- alongwith
interest w.e.f. 09.06.2023 till the date of repayment, however, it
failed to achieve the desired result. Hence, the suit.
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SUMMONS
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, Sh. Harish
Nehra 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. 04.05.2018
3 Ex. PW-1/3- Guarantors consent letter dt. 04.05.2018
4 Ex. PW-1/4- Copy of undertaking letter dt. 09.05.2018
5 Ex. PW-1/5- Sanction letter dt. 19.05.2018
6 Ex. PW-1/6- Articles of agreement dt. 19.05.2018
7 Ex. PW-1/7- Demand promissory note dt. 19.05.2018
8 Ex. PW-1/8- Letter of interest variation dt. 19.05.2018
9 Ex. PW-1/9- Letter of waiver dt. 19.05.2018
10 Ex. PW-1/10- Letter of Guarantee dt. 19.05.2018
11 Ex. PW-1/11- Letter dt. 19.11.2022
12 Ex. PW-1/12- Letter dt. 21.11.2022
13 Mark A- Letter dt. 29.11.2022 (Original on record)
14 Mark B- Letter dt. 21.11.2022 (Original on record)
15 Ex. PW-1/13- Legal notice dt. 13.06.2023
16 Ex. PW-1/14- postal receipt dt. 14.07.2023
17 Ex. PW-1/15- 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
05.09.2024.
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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 him. His testimony to the effect that an amount of
Rs.2,46,430.95/- 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
testimony is duly corroborated by documents placed on record ie.
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Ex. PW-1/1 to Ex. PW-12 and Ex. PW/13. 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 @ 11.45% p.a. 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.2,46,430.95/- along with 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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