Delhi District CourtM/S Icici Bank Ltd vs Sweety Verma on 5 July, 2021IN THE COURT OF SHRI MAN MOHAN SHARMA,\n     DISTRICT JUDGE (COMMERCIAL COURT)-06,\n                CENTRAL DISTRICT\n            TIS HAZARI COURTS, DELHI\n\nIN THE MATTER OF :-\n\n                CS (Commercial) No. 1169/2020\n\nM/s ICICI Bank Ltd.\nHaving its Registered Office at:\nICICI Bank Tower, Near Chakli Circle,\nOld Padra Road, Vadodara 390007,\nGujarat, India.\nInter alia having its branch office at:\nE­Block, Videocon Tower,\nJhandewalan Extension\nNew delhi­110055\nThrough its Authorized Representative\nMr. Anuj Jain\n                                                      .....Plaintiff\n                            VERSUS\nSweety Verma\nW/o Sh. Dudheshwar Kumar Verma,\n(Borrower)\nR/o #G­3/1, 3rd Floor, Sector­11, Rohini,\nNew Delhi­110085\n                                                     .....Defendant\n\n      Date of Institution             : 07.08.2020\n      Date of Reserve of Judgment     : 17.03.2021\n      Date of Judgment                : 05.07.2021\n\nJUDGMENT1. The plaintiff has instituted a suit for recovery of\n       ₹8,82,316.28 (Rupees Eight Lakh Eighty Two Thousand\n       Three Hundred Sixteen and Twenty Eight Paisa only)\n       against the defendant on 07.08.2020 but the physical fileCS (Comm.) No. 1169/2020                             Page 1 of 12had been received on 17.08.2020.Plaintiff's Case2. Briefly stated the case of the plaintiff is that it is a body\n      corporate under the provisions of theCompanies Act1956.\n      The suit has been instituted through its authorized\n      representative Shri Anuj Jain.3. The defendant approached the plaintiff for grant of a loan\n      for purchase of a vehicle. The plaintiff acceded to the\n      request of the defendant and sanctioned him a loan. The\n      relevant particulars of the credit facility sanctioned by the\n      plaintiff to the defendant are as under:Loan Account no.                LADEL00036526587\n              Date of execution of            23.10.2017\n              documents\n              Make and Model of the           HONDA CITY/VX MT\n              vehicle                         IVTEC\n              Registration number of          DL-1CX-4475\n              vehicle\n              Equated Monthly                 Rs.19,425/-\n              Installment (EMI)\n              Rate of Interest                8.76%Number of EMIs                  604. Subsequently the defendant approached the plaintiff for\n      grant of a Top Up Loan against the security of the above\n      vehicle. The plaintiff acceded to the request of the\n      defendant and sanctioned the said top up loan. The\n      relevant particulars of the credit facility sanctioned by the\n      plaintiff to the defendant are as under:Loan Account no.                SPDEL00038020954CS (Comm.) No. 1169/2020                               Page 2 of 12Date of execution of          22.10.2018\n               documents\n               Make and Model of the         HONDA CITY/VX MT\n               vehicle (as Security)         IVTEC\n               Registration number of        DL-1CX-4475\n               vehicle (as Security)\n               Equated Monthly               Rs.10,676/-\n               Installment (EMI)\n               Rate of Interest              15.99%Number of EMIs                365. For both the loans the defendant executed various\n      documents for a valuable consideration which included(i).   Credit Facility Application form;(ii). Deed of Hypothecation;(iii). Irrevocable Power of Attorney6. After making certain payments, the defendant defaulted in\n      repayment in both the loan accounts and therefore, the\n      loans have been recalled vide recall notice dated\n      26.09.2019 calling upon him to make the payment of\n      amount outstanding. Despite being duly notified the\n      defendant did not come forward to pay the outstanding\n      amount constraining the plaintiff to institute the instant\n      suit.7. In the first loan account the defendant is liable to pay\n      ₹6,47,731.41 (Rupees Six Lakh Forty Seven Thousand\n      Seven Hundred Thirty One and Forty One Paisa only) and\n      in the second loan account i.e. Top-up loan the defendant is\n      liable to pay ₹2,34,584.87 (Rupees Two Lakh Thirty Four\n      Thousand Five Hundred Eighty Four and Eighty SevenCS (Comm.) No. 1169/2020                                 Page 3 of 12Paisa only). The consolidated sum payable to the plaintiff\n      by the defendant is ₹8,82,316.28 (Rupees Eight Lakh\n      Eighty Two Thousand Three Hundred Sixteen and Twenty\n      Eight Paisa only).8. The plaintiff has prayed that the suit be decreed in the sum\n      of ₹8,82,316.28 (Rupees Eight Lakh Eighty Two\n      Thousand Three Hundred Sixteen and Twenty Eight Paisa\n      only) with interest @8.76% per annum on the sum of ₹\n      ₹6,47,731.41 (Rupees Six Lakh Forty Seven Thousand\n      Seven Hundred Thirty One and Forty One Paisa only) and\n      with interest @ 16% per annum on the sum of\n      ₹2,34,584.87 (Rupees Two Lakh Thirty Four Thousand\n      Five Hundred Eighty Four and Eighty Seven Paisa only)\n      from the date of institution of the suit till the realisation of\n      the amount. Cost of the suit has also been prayed for.Service of the Defendant9. The process had been sent to defendant and he had been\n      served through electronic mode as recorded in the minutes\n      of proceedings dated 27.11.2020.         Despite service the\n      defendant did not cause appearance\n                        Plaintiff's Evidence10.In its evidence, the plaintiff has examined only one witness\n      i.e. Sh. Anuj Jain, its Authorized Representative, as PW-1.11.PW1 tendered his oral evidence contained in affidavit\n      Ex.PW1/A He tendered the following documents in\n      evidence:-Documents                   Exhibits\n             Copy of Power of Attorney                Ex.PW1/1CS (Comm.) No. 1169/2020                                Page 4 of 12Credit Facility Application           Ex.PW1/2 &\n                                                   Ex. PW1/2A\n             Deed of Hypothecation                  Ex.PW1/3\n             Copy of Power of Attorney              Ex. PW1/4\n             Copy of Loan Recall Notice             Ex.PW1/5\n             Post Receipt of legal notice            Mark-X\n             Statement   of     Account             Ex.PW1/6\n             (LADEL00036526587)\n             Statement    of            Account     Ex.PW/6A\n             (SPDEL00038020954)\n             Certificate u/s 2A of the Bankers      Ex.PW1/7\n             Books Evidence Act\n             Certificate under Section 65-B of      Ex.PW1/8Indian Evidence Act, 187212.The plaintiff evidence has been closed on 17.03.2021.Arguments13.I have heard the submissions advanced by Ms. Barkha\n      Sharma, ld. counsel for the plaintiff.14.Ld. counsel for plaintiff has submitted that the subject\n      matter of the suit is a commercial dispute within the\n      meaning ofsection 2(c) (i)and other applicable provisions\n      of theCommercial Courts Act, 2015.15.The plaintiff is a bank. The evidence of its sole witness has\n      been based upon the records maintained by the bank in the\n      ordinary course of its banking business.16.The testimony of the plaintiff's witness has remained\n      unchallenged and un-impugned as the defendant has not\n      come forward to defend the suit despite being duly served.17.The suit is within the limitation. There is no legal\n      impediment that the suit cannot be decreed in favour of theCS (Comm.) No. 1169/2020                              Page 5 of 12plaintiff.18.The plaintiff has relied upon the judgment rendered on\n      31.01.2018 by the Hon'ble High Court of Delhi in RFA\n      No. 297/2015 titled'M/S ICICI Bank Limited versus\n      Kamini Sharma & Another' wherein on the similar facts\n      the suit of the plaintiff has been decreed. Thus, the plaintiff\n      is entitled to a decree with costs.Appreciation of Evidence & Arguments19. On a meaningful reading of the plaint, the suit is\n      apparently within the provisions of theCommercial Court\n      Act, 2015and the transaction, which is subject matter of\n      the suit, is squarely covered by the definition of a\n      commercial dispute within the meaning ofsection 2(c)of\n      the Act.20.The summons which has been sent to the defendant in this\n      case have been the summons for the settlement of issues.\n      The summons did not put the defendant on a caveat that in\n      case of his non-appearance the averment in the plaint shall\n      be deemed to be admitted. Thus, even when the defendant\n      has not come forward to contest the suit and has been\n      proceeded as ex-parte, the plaintiff is still liable to prove\n      its case on pre-ponderance of probabilities.21. PW- 1 has tendered his oral evidence which is contained\n      in his affidavit Ex. PW1/A. A question may arise here that\n      PW1 is not privy to the execution of various documents on\n      which the cause of action has been founded upon by the\n      defendant. On this aspect the Ld. Counsel for the plaintiff\n      has placed strong reliance on judgment passed onCS (Comm.) No. 1169/2020                               Page 6 of 1231.01.2018 by our own High Court in RFA No. 297/2015\n      titled'M/S ICICI Bank Limited versus Kamini Sharma &\n      Another'. The sum and substance of the facts of the said\n      case are similarly placed as the facts in the case under\n      consideration.22.PW1 has tendered in evidence his Power of Attorney as\n      Ex. PW1/1. A presumption about its due execution and\n      authentication emanates undersection 85of the Indian\n      Evidence Act.23.The authority to sue on behalf of the plaintiff has been\n      stated in clause 1 of Ex. PW1/1 and in many of its various\n      clauses other incidental and ancillary powers have been\n      vested in favour of PW1.24.One pertinent question that may arise is whether the power\n      to give evidence can be delegated. The answer has to be in\n      negative in view of the lawlaid down bythe Hon'ble Apex\n      Court inMan Kaur (Dead) by LRs vs. Hartar Singh\n      Sandhwa(2010) 10 SCC 512.25. The evidence in this case is primarily documentary. The\n      documents tendered in evidence by the plaintiff are the\n      documents maintained by a bank in the ordinary course of\n      its business. Though the exceptions cannot be ruled out,\n      but generally taking a judicial notice of the banking\n      business, these documents can be considered to be duly\n      executed in due course of the business and capable of\n      binding the parties into a contractual relationship.26.A civil case proceeds on the doctrine of pre-ponderance of\n      probabilities and not on proof beyond reasonable doubt.CS (Comm.) No. 1169/2020                               Page 7 of 12There is no denying the fact that non-appearance of\n      defendant cannot be taken as a circumstance against him to\n      draw an inference that it tantamount to an admission of the\n      case of the plaintiff, as there may be thousand and one\n      reasons for his non-appearance, and the Court cannot\n      speculate into the reasons for his non-appearance on some\n      analogy based on certain conjectures and surmises. Yet, it\n      is the settled law that in any trial absolute certainty is a\n      myth and the law has provided for working solution in the\n      form of doctrine of pre-ponderance of probabilities.\n      Placing reliance upon the judgment cited by the plaintiff\n      and on the strength of the pronouncement made therein\n      there is enough room to take the documents tendered by\n      the plaintiff on their face value without any demur.27.Thus, appreciating the evidence tendered by the plaintiff it\n      is clear that the defendant had approached the plaintiff\n      bank and executed Ex.PW1/2 & Ex.PW1/2A seeking a\n      credit facility. The bank acceded to the request and\n      consequent upon the same the defendant executed various\n      loan documents viz. Ex.PW1/3 and Ex.PW1/4. The\n      defendant made various payments but later on failed to\n      adhere to the financial discipline. The various transactions\n      have been recorded in the statement of account Ex.PW1/6\n      and Ex.PW1/6A, maintained by the plaintiff in the\n      ordinary course of its business. The same being electronic\n      records have been accompanied with certificates under theBankers' Books Evidence Act and the Indian Evidence Actrespectively. As such they are admissible in evidenceCS (Comm.) No. 1169/2020                             Page 8 of 12without production of the originals or the production of the\n      computer system.28.The plaintiff has also served a notice Ex.PW1/5 upon the\n      defendant calling upon him to clear the outstanding in his\n      account. Due to non-compliance of its terms on the part of\n      the defendant, the plaintiff took legal recourse by filing the\n      instant suit for recovery.29.The loan has been disbursed to the defendant. The suit has\n      been instituted on 07.08.2020 and the same is therefore\n      within the prescribed period of limitation.30.The plaintiff has claimed the suit amount in the first loan,\n      the components of which have been stated in Ex. PW 1/6\n      as under:Particulars                                   Amount ₹\n      Principal outstanding                         593949.40\n      Late Payment Penalty                          5069/-\n      Cheque bouncing charges                       2340/-\n      Interest for the month                        3566.80\n      Prepayment charges                            35,043.01\n      Interest on pending installments              7,763.20\n      Total                                         6,47,731.4131.The plaintiff has also claimed the suit amount in the\n      second/Top-up loan, the components of which have been\n      stated in Ex. PW 1/6A as under:Particulars                               Amount ₹\n       Principal outstanding                     2,10,269/-\n       Late Payment Penalty                      1,651/-\n       Cheque bouncing charges                   4,696/-\n       Interest for the month                    432/-\n       Prepayment charges                        12,405.87\n       Interest on pending installments          5,131/-\n       Total                                     2,34,584.87CS (Comm.) No. 1169/2020                                Page 9 of 1232.The plaintiff is entitled to the outstanding principal and\n      interest. It is also entitled to the late payment penalty and\n      cheque bouncing charges as the same have been\n      occasioned due to the acts and omissions of the defendant.\n      The same flow from the contractual relationship as per the\n      terms and conditions settled and part forming of the loan\n      documents. However no right to claim the pre-payment\n      charges has been established by the plaintiff for the reason\n      that it is case of recall of the loan on the part of the\n      plaintiff and not a foreclosure on the part of the defendant.\n      Thus, the plaintiff is not entitled to the same.33.The plaintiff has claimed interest w.e.f. 06.02.2020.         It\n      was incumbent upon the plaintiff to capitalize the interest\n      in the suit amount as on the date of filing and he ought to\n      have paid the court fee accordingly. Thus, the plaintiff is\n      entitled to interest only from the date of institution of the\n      suit. The plaintiff is entitled to interest @ 8.76% per\n      annum and 15.99% per annum respectively on the first\n      and the second/Top-up loans which is the contractual rate\n      of interest and the same appears to be just and proper in\n      the contemporary business milieu, risk factors involved\n      and other attendant circumstances. The interest accrued till\n      the date of decree shall be part of the decreetal amount.34.Thus, the suit of the plaintiff is liable to be decreed in\n      terms as stated above.ORDER35.The suit of the plaintiff is decreed in the sum ofCS (Comm.) No. 1169/2020                                 Page 10 of 12₹6,12,688.40 (Rs. Eight Lakh Thirty Five Thousand One\n      Hundred Sixty Seven and Forty only) with simple interest\n      @ 8.76% per annum and in the sum of Rs.2,22,179/- (Rs.\n      Two Lakh Twenty Two Thousand One Hundred Seventy\n      Nine only) with simple interest @ 15.99% per annum from\n      the date of institution of the suit i.e. 07.08.2020 till\n      realization of the entire amount. The interest accrued till\n      the date of decree shall be part of the decreetal amount.36.The plaintiff shall be entitled to the costs of the suits as\n      well as per the rules. Certificate of counsel fee (if any\n      submitted) be taken into reckoning while computing the\n      costs. Balance Court Fee, if any, be deposited by the\n      plaintiff within 30 days of the decree.37.Decree shall be drawn accordingly.38.It is necessary to mention here that the final arguments in\n      this matter were heard on 17.03.2021 but the final\n      judgment could not be passed for the reasons recorded in\n      minutes of proceedings dated 09.04.2021, 17.04.2021 and\n      05.05.2021. Thereafter, all the matters were adjourned en-\n      bloc in view of the directions of the Hon'ble High Court of\n      Delhi in the wake of COVID-19 pandemic.Copy of the Judgment39.In compliance of the provisions of theOrder XX Rule 1 of\n      the Code of Civil Procedure(as amended up-to-date by theCommercial Courts Act, 2015) a copy of this judgment be\n      issued to all the parties to the dispute through electronic\n      mail, if the particulars of the same have been furnished, or\n      otherwise.CS (Comm.) No. 1169/2020                              Page 11 of 1240.File be consigned to the Record Room.Announced through Cisco                           Digitally signed\nWebex Platform on 05.07.2021.       MANMOHAN\n                                                  by MANMOHAN\n                                                  SHARMA\n                                    SHARMA        Date:2021.07.09\n                                                  13:27:52 +0530\n                                  (Man Mohan Sharma)\n                           District Judge (Commercial Court)-06\n                           Central District, Tis Hazari Courts,DelhiCS (Comm.) No. 1169/2020                                Page 12 of 12