Final Order 14

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. KIRAN BANSAL:
DISTRICT JUDGE (COMMERCIAL COURT)
SHAHDARA DISTRICT,
KARKARDOOMA COURTS : DELHI
CS (COMM) NO. 48/2024
BANK OF INDIA,
Gandhi Nagar Branch,
Through its Authorized Representative,
Branch Office at:
X/918, Chand Mohalla, Gandhi Nagar
Delhi ….. Plaintiff
Versus
1. Mrs. Kavita Ghai …... Defendant no.1
W/o Sh. Harish Kumar
And
2. Sh. Harish Kumar …... Defendant no.2
S/o Sh. Mahender Pal
Both are: R/o Flat No. 711,
Type – 1, 7th Floor, Tower-H,
Oxy Homez, New Dilshad Extension,
New Koyal Enclave,
New Loni Bhopura Road, Tilla More Road,
Ghaziabad, U.P. 201010.
Mobile No. 9250229088
3. Sh. Amit Chabbra …... Defendant no.3
S/o Sh. Sunil Kumar Chabara,
R/o 91/140, Multani Mohalla, Geeta Colony,
Gandhi Nagar, Delhi – 110031
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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Date of institution : 16.01.2024
Date of final arguments : 09.10.2024
Date of judgment : 19.10.2024
JUDGMENT
1. The plaintiff bank has filed the present commercial suit for recovery
of Rs.16,48,507.27/- as on 27.12.2023 along with future interest rate @ 10.95%
per annum w.e.f. 27.12.2023 against the defendants and permanent and
mandatory injunction against defendant no. 1 and 2, through Mrs. Deepa
Aggarwal, its AR who is competent and authorized to institute the present case
on behalf of the Bank.
1.2 Briefly, the case of plaintiff is that defendant no. 1 and 2 are the
borrowers and defendant no. 3 is guarantor pertaining to loan account in
question. It is averred that defendant no. 1 and 2 approached the plaintiff bank
for availing Home Loan facility through Gandhi Nagar Branch in the year 2012
for a sum of Rs.14,96,000/- against property bearing Flat No.711, Tower-H, 7th
Floor, without roof right Oxy Homez, Pargana Loni, District Ghaziabad, U.P.
and after due verification, the loan was sanctioned vide letter dated 12.10.2012
for a sum of Rs.14,96,000/- and was disbursed vide loan account
no.60607511000067.
1.3 It is averred that defendant availed Top up loan facility for a sum of
Rs.2,89,988/- vide application dated 18.01.2018 and the same was disbursed
vide loan account no. 60606261000017. Plaintiff stated that defendant failed in
making repayment of loan and thus, the account was declared NPA on
12.08.2022 and as on 27.12.2023, defendant is having an outstanding dues for a
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 2 of 15
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sum of Rs.16,48,507.27 including principal amount and other charges. The
details of the amount due is tabulated as under:
Account No. Dues amount as on
27.12.2023 and rate of
interest
Principle amount Interest and other
charges amount
60607511000067 Rs.13,69,267.66/- @
10.95%
Rs.11,88,188.80/- Rs.1,81,078.86/-
60606261000017 Rs.2,89,853.07/- @
10.95%
Rs.2,59,710.47/- Rs.30,142.60/-
1.4 Notice under Section 13 (2) of Sarfesi Act, 2002 dated 20.08.2022
was served upon the defendant, asking them to clear outstanding dues, but,
defendant neither paid any heed nor made any part payment. Plaintiff bank has
further stated that an amount of Rs.16,48,507.27/- is still due and defendants are
liable to pay unpaid amount with future interest jointly as well as severally. Left
with no option, plaintiff bank approached Shahdara District, Mediation Centre,
Karkardooma Courts under Section 12A of Commercial Courts Act, however,
the effort of mediation was invain as defendant did not participate, accordingly,
a Non Starter Report dated 23.08.2023 was issued.
1.5 It is stated that cause of action arose when defendant stopped
making the repayment of loan and the account was declared NPA and has not
made the payment despite issuance of Notice under Section 13 (2) of Sarfesi
Act, 2002 dated 20.08.2022. It is further stated that loan was sanctioned and
disbursed in the account of defendant at Gandhi Nagar Branch which is situated
within the territorial jurisdiction of this court. It is further stated that last
payment was made by defendant no. 1 and 2 on 17.11.2022 towards repayment
of loan amount and defendant no. 1 admitted her liability vide letter dated
01.09.2023, thus, the present suit is within limitation. Plaintiff has paid ad
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 3 of 15
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valorem court fees of Rs.18,435/- and has undertaken to pay further court fees, if
required.
2. Defendant no. 2 was served on 03.04.2024 and defendant no. 3 was
served on 01.04.2024. However, as none appeared on their behalf nor any
written statement was filed on their behalf within stipulated period of 30 days,
accordingly, the right of defendant no. 2 and 3 to file WS was closed and they
were proceeded ex-parte vide order dated 13.05.2024. On the other hand,
defendant no. 1 appeared through Ld. LAC and the WS was filed within outer
limit of 120 days alongwith an application under Order VIII Rule 1 CPC for
condonation of delay which was allowed subject to cost of Rs.2,000/- payable to
the plaintiff and the WS was taken on record.
3. In the WS filed by the defendant no. 1, it is stated that suit is barred
by time and as such suit is liable to be dismissed under Order VII Rule 11 CPC.
Defendant has stated that she has made the part payment of loan amount with
interest, however, the plaintiff bank did not show the credit amount in ledger.
Defendant further stated that statement of account is not showing the true and
fair view of financial transactions and was prepared contrary to rules and
regulations of RBI.
3.1 It is stated that plaintiff bank is guilty of suppression of material
facts from this court as plaintiff has not disclosed true and material facts, thus,
the suit is liable to be dismissed. It is further stated that plaintiff bank had
obtained the signature on blank documents and despite repeated requests no
copy of the said documents with ledger was provided to the defendant with
malafide intention. Defendant further stated that in fact the bank charged
exhorbitant interest against RBI Rules and she requested the plaintiff bank time
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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to time to provide the copy of statement of account and copy of signed blank
documents, but, plaintiff failed to provide the same. Defendant has stated that
plaintiff bank has not filed any certificate under Section 65B of Indian Evidence
Act which is mandatory and the present suit is liable to dismissed under Order
VII Rule 11 CPC. It is further stated that the suit has not been properly valued
for the purpose of court fees. Rest of the contents are denied by the defendant
and dismissal of the suit has been prayed with cost.
4. Rejoinder to the WS of defendant no.1 filed by the plaintiff wherein
it is stated that written statement of defendant is neither properly signed nor duly
verified as per rules, thus, liable to be discarded from record. It is further stated
that defendant no. 1 failed to put any strict proof in respect of her claim, thus,
she is not entitled to any relief from this court. It is further stated that the WS of
defendant is nothing, but, an attempt to mislead this court by putting false and
fabricated averments. Rest of the contents of WS are denied by the plaintiff and
are not repeated for the sake of brevity.
5. Affidavit of admission and denial of documents of plaintiff was
filed on behalf of defendant no. 1 as per which the defendant no.1 has not denied
the following documents of the plaintiff which are as under:
(i) Copy of Authority Letter/GBPA in favour of Authorized Signatory of
plaintiff Bank as Ex.P1;
(i) Copy of Non Starter Report dated 06.10.2023 as Ex.P2;
However, as no documents was filed along with WS, the plaintiff
had not filed any affidavit of admission and denial of documents.
6. Thereafter, on the basis of the pleadings, following issues were
settled for consideration:
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 5 of 15
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i. Whether the plaintiff is entitled for money decree? If so, to what amount?
OPP.
ii. Whether the plaintiff is entitled to any interest? If so, at what rate and for
which period? OPP.
iii. Relief.
7. In order to prove its case, the plaintiff has examined Ms. Deepa
Agrawal, AR of the plaintiff Bank as PW-1 who tendered her evidence by way
of affidavit PW1/A and has relied upon the following documents:
 Authorization letter as Ex.PW1/A;
 Loan Application and top up loan application with supporting documents
as Ex.PW1/B;
 Loan Sanction documents as Ex.PW1/C;
 Loan Agreement as Ex.PW1/D;
 Property Documents as Ex.PW1/E (OSR);
 Balance and Security Confirmation letter dated 31.08.2020 as Ex.PW1/F;
 Notice dated 20.08.2022 as Ex.PW1/G;
 Account Statement as Ex.PW1/H
 Certificate under Section 65B as Ex.PW1/I;
 Calculation Sheet as Ex.PW1/J;
 Banker Book Evidence Certificate as Ex.PW1/K;
 Non Starter Report as Ex.PW1/L;
 Letter dated 01.09.2023 as Ex.PW1/M.
She was duly cross examined by ld. counsel for the defendant.
In rebuttal, defendant has not led evidence despite opportunity been
given, therefore, DE was closed.
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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8. The court has gone through the testimony of witness and the
documents proved on record. The court has also perused the record and
considered the arguments advanced.
9. The findings on various issues are as follows:
Issue No.(i)
Whether the plaintiff is entitled for money decree? If so, to what
amount? OPP.
10. The onus of proving this issue was upon the plaintiff. The suit is
commercial in nature and squarely falls within the purview of Section 2 (1) (C)
of Commercial Courts Act and plaintiff has also duly complied with mandatory
provision of Pre-Institution Mediation and Conciliation as provided in Section
12 A of Commercial Courts Act as per non-starter report Ex.PW1/L. This court
also has the territorial jurisdiction over the present case since the loan has been
sanctioned by Bank Manager Gandhi Nagar Branch, New Delhi which falls
within the jurisdiction of this Court. This court also has the pecuniary
jurisdiction over the matter since the suit amount claimed by the plaintiff is more
than the specified value of Rs.3 lacs of the Commercial Courts. The suit of the
plaintiff is within limitation as defendants came to the branch of plaintiff bank
and signed the application form Ex.PW1/B on 06.09.2012 and last payment of
interest was credited in the account of defendant is of Rs.1908.54/- on
17.11.2021 and hence, the suit filed on 16.01.2024 is within the period of
limitation.
11. The primary plea taken by the defendant in the WS is that she has
made the part payment of loan amount with interest, however, the plaintiff bank did
not show the credit amount in ledger. Further, the statement of account is not
showing the true and fair financial transactions and was prepared contrary to rules
and regulations of RBI. However, during cross-examination of PW-1, PW-1
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 7 of 15
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categorically denied the suggestion that the loan was sanctioned contrary to RBI
guidelines and the bank is intentionally delaying the process of recovery of loan so
that the bank is able to secure more interest. PW-1 admitted that she has not
prepared the statement of account, but, volunteered that the same was system
generated. PW-1 also denied the suggestion that the statement of account is not
showing the correct outstanding balance putforth to him. The relevant portion of
cross-examination of PW-1 is reproduced as under:
“…...I was not posted at the branch when the loan was
sanctioned. All the procedures and norms were followed by
the bank before and at the time of sanction of the loan. It is
wrong to suggest that the loan was sanctioned contrary to
RBI guidelines. It is further wrong to suggest that the bank
is intentionally delaying the process of recovery of the loan
so that the bank is able to secure more interest. I have not
prepared the statement of account filed in the account. (Vol.
it was system generated and I had taken the printout). It is
wrong to suggest that the statement of account is not
showing the correct outstanding balance. It is further wrong
to suggest that there might be some technical default in
system at the time of generation of statement of account. It
is further wrong to suggest that some payments made by the
defendant have not reflected in the statement of
account…...”
12. Nothing material has come on record during cross of PW-1, to
discredit the case of the plaintiff. Neither any evidence was led by the defendant to
prove her defence that she has made the part payment of loan amount with interest
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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nor any documentary proof has been filed which shows that the statement of
account is not showing the true transactions and was prepared contrary to RBI rules
and regulations. Except the bald averment made in WS, nothing has been
established by the defendant on record that the statement of account is incorrect. In
the absence of any documentary proof, the plea of the defendant that the statement
of account is incorrect is clearly an afterthought and therefore, the submissions
made in WS in this regard cannot be entertained.
13. The second defence taken by the defendant that the plaintiff bank had
obtained the signature on blank documents and despite repeated requests copy of
said documents with ledger was not provided to them. During cross of PW-1, she
specifically denied the suggestion that defendant was made to sign blank document
at the time of grant of loan without explaining the terms and conditions of the loan.
The relevant cross of PW-1 in this regard is reproduced below:
“……It is further wrong to suggest that the defendant was
made to sign blank document at the time of grant of loan
without explaining the terms and conditions of the loan.
…...”
14. Perusal of the document i.e. Loan Sanction letter Ex.PW1/C reveals
that the rate of interest is 0.0% over base rate (BR) presently 10.50% p.a. with
monthly rests or at such other rate/s of interest applicable from time to time and
nothing has been filled with pen and same is a printed document on which both the
defendants have signed. The contents of the plaint and documents proved on
record by PW-1 appear to be of an unimpeachable character. Also, once a person
signs a document voluntarily, he/she cannot subsequently escape his/her liability
and plead that he/she had signed blank documents. Even If he/she signs any
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 9 of 15
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blank document, he/she does so at his/her own peril. Reliance can be placed on
the judgment in
Corporation Bank Vs. Sushil Enterprises & ors. 2003 VIAD
Delhi 467 dt. 16.5.2007 wherein it was held that:
“Nobody is expected to sign the documents
without reading it or when it is blank and if he
does so he does at his own risk and the very fact
that the plaintiff Bank has disbursed the loan
amount and defendants had availed it also shows
that the documents were valid and duly executed”.
15. It was further held that :
“The admission of signatures of the defendant No.
1 upon the documents in question raises a
presumption that the documents were duly filled in
when these were signed. Had the defendants not
availed the loan amount and had the payment of
the machinery purchased by defendant No. 1 not
been made by the plaintiff, the aforesaid plea of
signing the documents when these were blank
might have cut ice, not otherwise”.
16. In view of the above case law and the fact that the defendant no.1
and 2 have signed at relevant space in the loan application as borrower and have
also executed the Loan Agreement Ex.PW1/D, this plea of the defendant no.1
that she had signed blank document is not sustainable. Further, this plea is not
sustainable in view of the fact that defendant no.1 have not led any evidence nor
filed any documentary proof along with the WS to prove that at the time of
signing the documents, the same were blank and have been filled later on. The
defendant no.1 has neither disputed the execution of loan documents such as
Agreement Ex.PW1/D; Balance and Security Confirmation letter dated
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 10 of 15
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31.08.2020 Ex.PW1/F; Notice dated 20.08.2022 Ex.PW1/G and Account
Statement Ex.PW1/H nor has disputed the loan account bearing no.
60607511000067 and 60606261000017. Even if, it is presumed that the signatures
of the defendant were obtained on blank document, still the defendant no.1 cannot
deny the existence and execution of the documents. Defendant no.1 has also denied
the issuance and receipt of the documents in a mechanical manner. As already
observed, once the defendant has admitted that she has signed on blank loan
papers, the court fails to understand as to how the defendant had denied the
contents, execution, custody of all the documents relied upon by the plaintiff. Thus,
the plea of the defendant no. 1 that she has signed on blank papers clearly is vague
and evasive.
17. Another plea taken by the defendant no.1 that bank charged
exorbitant interest against RBI Rules. Once the defendant has admitted that she
has taken the loan from the plaintiff bank, she is liable to repay the loan amount.
The onus was upon the defendant to have proved as to how the amount claimed
is exorbitant according to her and she is not liable to pay the same. It is a settled
law that every trial is a search of truth and the purpose and objective of trial is to
secure a fair and impartial administration of injustice between the parties to the
litigation.
18. As per the application Ex.PW1/B, the defendant no. 1 and 2 had ap-
plied for home loan and one Sh. Ram Ratan Rathi had signed the application as
guarantor. The photograph of Sh. Ram Ratan Rathi is affixed on the form meant
to be signed by guarantor and Sh. Ram Ratan Rathi has also signed the same as
guarantor along with defendant no. 1 and 2 as borrower. The top loan form is
also part of document Ex.PW1/B as per which the defendant no. 1 and 2 have
both applied for top up loan on 18.01.2018. The application was made for an
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 11 of 15
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amount of Rs.2,90,000/-. The defendant no. 3 Sh. Amit Chabbra is the guarantor
in this top up loan.
19. As far as initial home loan is concerned, the guarantor is
Sh. Ram Ratan Rathi. The said Sh. Ram Ratan Rathi has not been impleaded as
a party to the present proceedings. But the guarantor of the top up loan i.e.
Sh. Amit Chabbra is impleaded as defendant no. 3 and thus, as Sh. Amit
Chabbra is the guarantor only in respect of top up loan of Rs.2,90,000/-, the
liability of defendant no. 3 is only to the extent of top up loan pertaining to loan
account no. 60606261000017 and not as far as account bearing no.
60607511000067. The Sanction letter Ex.PW1/C dated 12.10.2012 is signed by
both defendant no. 1 and 2 as well as Sh. Ram Ratan Rathi pertaining to home
loan, however, Sh. Ram Ratan Rathi has not been impleaded as a party to the
present suit. The agreement of home loan is Ex.PW1/D signed by both defen-
dant no. 1 and 2. The balance and security confirmation letter Ex.PW1/F is
signed by defendant no. 1 and 2. Similarly, one letter Ex.PW1/M, dated
01.09.2023 has been written by defendant no. 1 to the Branch Manager in which
she has sought time to make the payment against the loan account. Ex.PW1/E
are the property document i.e. sale deed etc. The loan account statement is
Ex.PW1/H. As per the statement of account of loan bearing no.
60607511000067, an amount of Rs.10,60,205/- was disbursed on 19.12.2012.
Thereafter, further amount of Rs.96,627/- was disbursed on 04.02.2023. Further,
an amount of Rs.96,618/- was disbursed on 09.09.2013. Again an amount of
Rs.1,14,309/- was disbursed on 31.07.2014. Again an amount of Rs.96,617/-
was disbursed on 13.04.2015. As per this account statement, an amount of
Rs.11,88,188/- is outstanding balance as on 18.11.2022. As per this statement of
account, this amount of Rs.11,88,188/- includes the penal interest as well as nor-
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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mal interest uptill 30.07.2022. Whether any payment has been made after
18.11.2022 has not been reflected in the statement of account. Account bearing
no. 60607511000067 has been declared NPA on 12.08.2022 on which date the
due outstanding principal amount was Rs.11,88,188/-. Thereafter a payment of
Rs.1908.54/- was made on 17.11.2022 which was adjusted against the interest
and again the outstanding balance is Rs.11,88,188.80/- and thus, the plaintiff is
entitled to an amount of Rs.11,88,188/- as principal amount against the account
bearing no. 60607511000067.
20. Now coming to the loan account bearing no. 60606261000017. The
statement of account reveals that an amount of Rs.2,89,988/- was disbursed on
30.01.2018. Normal and penal interest has been levied by plaintiffm, as the
defendant is not making regular payment, though, they have made some part
payments. As per plaintiff, this account was declared NPA on 27.12.2023.
However, the statement of account filed regarding loan account bearing no.
60606261000017 is reflecting uncharged interest of Rs.2619.47 on 29.12.2022
on which date there is an outstanding balance of Rs.2,59,710.47 which includes
normal as well as penal interest upto 30.07.2022, but, thereafter certain pay-
ments which has been made by the defendant i.e. payment of Rs.11,575.20/-
and Rs.5091.46/- has been adjusted against the interest and outstanding amount
as on 29.12.2022 is Rs.2,59,710.47. Plaintiff is thus, entitled to Rs.2,59,710.47
as principal as far as loan account bearing no. 60606261000017 is concerned.
Issue no.(i) is accordingly decided in favour of plaintiff and against
the defendant.
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 13 of 15
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Issue no. 2-
Whether the plaintiff is entitled to any interest? If so, at what rate
and for which period? OPP.
21. The onus to prove this issue is upon the plaintiff. The plaintiff bank
has claimed a sum of the payment of the total outstanding amount in all accounts
is Rs.16,48,507.27/- along with interest (i.e. 10.95% per annum w.e.f.
27.12.2023) from the date of filing of suit till its realisation. Plaintiff has
included the interest in the amount claimed as per books of accounts maintained
by it with respect to each separate loan account, which is tabulated hereunder:
Account No. Dues amount as on
27.12.2023 and rate of
interest
Principle amount Interest and other
charges amount
60607511000067 Rs.13,69,267.66/- @
10.95%
Rs.11,88,188.80/- Rs.1,81,078.86/-
60606261000017 Rs.2,89,853.07/- @
10.95%
Rs.2,59,710.47/- Rs.30,142.60/-
22. No document was pointed out by the counsel for plaintiff during
arguments wherein interest @ 10.95% was agreed between the parties against
loan account bearing no. 60607511000067 and 60606261000017. As already
observed the outstanding amount of Rs.13,69,267.66/- against Loan
60607511000067 includes the interest levied till 27.12.2023. Similarly, an
outstanding amount of Rs.2,89,853.07/- against Loan 60606261000017 includes
interest till 27.12.2023. Though, the above said stated amount has been claimed
as interest, but, the period of interest has not been stated as per Order VII Rule
2A CPC amended by Commercial Courts Act, 2015.
23. The defendants have availed the loan and is bound to repay the
same along-with interest. Interest of justice would be served if defendants are
directed to pay interest @ 9% per annum on the abovesaid principal amount.
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
Page 14 of 15
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Thus, plaintiff is entitled to interest @ 9% per annum on the principal amount of
Rs.14,47,899.27 w.e.f. 01.08.2022 till its realisation. It is also clarified that if the
defendant has made any payment after 30.07.2022, the same is also liable to be
adjusted and the benefit of the same is to be given to the defendant.
Issue no. (iii) is thus, decided in favour of plaintiff and against the
defendants, accordingly.
Issue No.3 Relief
24. In view of findings on the above issue, the suit of the plaintiff Bank
is hereby decreed in its favour and against the defendant no.1, 2 and 3 for a
principal amount of Rs.14,47,899.27 (i.e. Rs.11,88,188.80/- towards account
no.60607511000067 and Rs.2,59,710.47/- towards account
no.60606261000017) along with interest @ 9% per annum on the principal
amount of Rs.14,47,899.27 w.e.f. 01.08.2022 till its realisation. It is clarified
that the liability of defendant no. 3 shall be only to the extent of
Rs.2,59,710.47/- against loan account bearing no. 60606261000017 alongwith
interest @ 9% per annum on the said amount w.e.f. 01.08.2022 and the plaintiff
can execute the decree against the defendant no. 3 only in respect of loan
account bearing no. 60606261000017. Any payment made by the defendant after
31.07.2022 is liable to be adjusted. Costs of the suit to the extent of court fees
and Rs.20,000/- as litigation cost are also awarded to the plaintiff as per law.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court. (Kiran Bansal)
On 19th day of October, 2024 District Judge, Commercial Court-02,
Shahdara, Karkardooma, Delhi
19.10.2024
CS(COMM) NO.
48/2024
BANK OF INDIA Vs.
Mrs. Kavita Ghai
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