Delhi District CourtState Bank Of India vs Sh. Bakoli on 12 August, 2015Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.




                     IN THE COURT OF SH. G. N. PANDEY
                    ADDITIONAL DISTRICT JUDGE­02 (NE)
                      KARKARDOOMA COURTS, DELHI


                                                CS No. 346/14
                                  Case I.D. Number : 02402C0261652013

        IN THE MATTER OF :­

        State Bank of India
        Uttam Nagar Branch
        New Delhi                                             ........ Plaintiff

                                       VERSUS

        Sh. Bakoli
        S/o Late Sh. Ram Lal
        B­13, Gali No. 7,
        Ambedkar Vihar,
        Johripur, Delhi­110094

        And Also at:­
        Sh. Bakoli
        S/o Late Sh. Ram Lal
        Mate/ Helper
        DDA Office, Shakarpur,
        Delhi­110092                                          ........ Defendant




      CS No. 346/14                                                                page 1 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


Date of Institution of suit      : 21.08.2013
Received in this Court           : 12.03.2014
Date of argument                 : 12.08.2015
Date of Judgment/Order           : 12.08.2015
Decision                         : Suit is decreed with cost


                      SUIT FOR RECOVERY OF Rs. 3,55,779/­

                                  J U D G M E N T­


1.      By this judgment, the suit of the plaintiff for recovery of Rs. 3,55,779/­

alongwith interest against the defendant is disposed off.

2.      Briefly stated, the plaintiff is a body corporate Constituted under theState Bank of India Act, 1955having branches throughout India and Sh. Arun

Kumar is the Branch Manager/ principal officer of Uttam Nagar branch and is

competent to institute the suit and depose before the court in view of General

Regulation of SBI Sub section (3), Section 50 of the SBI Act. As contended,

the defendant approached to the plaintiff vide application dt. 27.10.07 for loan

which was sanctioned and disbursed on 31.10.07 of Rs. 2,10,000/­. In

consideration, defendant executed on 31.10.07 following documents

voluntarily:­

(1)     Arrangement Letter regarding loan, rate of interest and repayment etc.

(2)     Personal loan agreement for Rs. 2,10,000/­, EMI and commencement

        etc.

        The defendant agreed to repay the loan amount alongwith interest but


      CS No. 346/14                                                            page 2 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


failed to adhere the terms and condition. The plaintiff is accordingly entitled

for charge in interest. The documents were revived by the defendant on

20.08.10 but failed to pay the outstanding dues despite request and legal notice

dt. 03.06.13. The cheque issued by defendant towards repayment of the loan

were dishonoured on presentation and complaint U/s 138 of theNI Actwas

also filed against him. As the defendant is liable to pay the due amount

alongwith interest, this suit is filed by the plaintiff against the defendant.

3.      In written statement, the defendant stated that suit is not maintainable

and the plaintiff has concealed the material facts. It is admitted that the

defendant was sanction loan of Rs. 2,10,000/­ on 31.10.07 vide his application

dt. 27.10.07 but only Rs. 1,00,000/­ was given to the defendant out of the

sanctioned loan and defendant paid Rs. 1,10,000/­ to Sh. V. P. Ojha, the then

Branch Manager by way of self payee cheque. The defendant further claimed

that 20 blank signed cheques were handed over to the branch Manager by the

defendant and therefore the defendant did not deposit any amount in the

account and cheque were dishonoured. The defendant also admitted the filing

of complaint U/s 138NI Actwhich has been decided by Ld. MM vide order

dt. 04.09.12 and defendant claimed that he has paid all the outstanding dues

amount alongwith Rs. 1,000/­ as cost before Ld. MM on 04.09.12. As claimed

by defendant, there is no cause of action for filing of the suit; the defendant

has paid all outstanding dues to the plaintiff as per the order of Ld. MM and



      CS No. 346/14                                                            page 3 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


this suit is liable to be dismissed. As stated, the defendant made one complaint

dt. 11.06.12 against Mr. V. P. Ojha, Branch Manager to SHO, Bindapur and

Crime branch and this suit is filed only to harass the defendant as defendant

already paid all outstanding amount as per the direction of Ld. MM. The

defendant further denied the relevant contentions of the plaintiff in the plaint

and prayed to dismiss the suit with cost.

4.      Replication to WS of the defendant was also filed by the plaintiff

whereby denying the contentions in the WS of the defendant, the plaintiff has

reiterated the averments made in the plaint. In view of the pleading of the

parties, following issues were framed vide order dated 03.06.2014:­

       (1)      Whether the plaintiff is entitled for decree of Rs.

       3,55,779/­ alongwith interest as prayed in the suit? ( OPP).

       (2)      Relief.

        The case was thereafter fixed for plaintiff's evidence.

5.      PW 1 Sh. M. C. Mulwani, Chief Manager, SBI Uttam Nagar, Delhi has

filed his affidavit by way of evidence Ex. PW1/A and deposed regarding the

case as mentioned in the plaint. The witness has deposed regarding the

relevant documents i.e. Ex. PW 1/1 is SBI regulation 76 & 77 of Central

Regulation Act, 1955, Ex. PW 1/ 2 is gazette notification, Ex. PW 1/ 3 is loan

application form, Ex. PW 1/ 4 is the arrangement letter dt. 31.10.07, Ex. PW 1/

5 is original personal loan agreement, Ex. PW 1/ 6 is revival letter dt.



      CS No. 346/14                                                            page 4 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


20.08.10, Ex. PW 1/ 7 is legal notice dt. 03.06.13, Ex. PW 1/ 8 and Ex. PW 1/

9 is postal receipts, Ex. PW 1/ 10 is internet generated postal tracking report

and Ex. PW 1/11 is the statement of account.

        As no other witness remained to be examined by the plaintiff, the PE

was closed and the case was fixed thereafter for defendants evidence.

6.      The Defendant filed his evidence by way affidavit Ex. DW1/1 and

examined himself as DW­1 in support of contentions and denying his liability.

As no other witness remained to be examined by the defendant, DE was

closed.

7.      I have heard the Ld. counsel for the parties and gone through the

relevant materials on record. I have also considered the relevant provisions of

law.

8.      Having drawn my attention to the pleadings of the parties, testimony of

witnesses and materials on records, it is submitted by learned counsel for the

plaintiff that the case of the plaintiff has been duly proved and plaintiff has

discharged the onus, the plaintiff is entitled for the amount as prayed in the

suit. It is further argued that the defence of the defendant is shame, vague and

fanciful, the defendant failed to pay the outstanding amount and is therefore

liable to pay the same along with interest. As contended, this suit is filed

within limitation. The Ld. Counsel for the plaintiff further prayed to decree

the suit in favour of the plaintiff and against the defendant.



      CS No. 346/14                                                            page 5 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


9.      The Ld. Counsel for the defendant on the other hand, having drawn

my attention to the testimony of the witnesses and documents on records

submitted that the plaintiff has failed to prove the case and discharge the onus.

It is argued that the plaintiff has filed this suit without any basis and cause of

action, plaintiff is not entitled for any relief and this suit is false. The Ld.

Counsel for the defendant further prayed to dismiss the suit with cost.

10.     I have given my thoughtful consideration to the submissions made on

behalf of the parties. My findings issue­wise are as under :­

Issue No. I

      (1)      Whether the plaintiff is entitled for decree of Rs.

      3,55,779/­ alongwith interest as prayed in the suit? ( OPP).

11.     The onus to prove the issue regarding entitlement for the amount

claimed in the suit was on the plaintiff. It is well settled that a suit has to be

tried on the basis of the pleadings of the contesting parties which is filed in

the suit in the form of plaint and written statement and the nucleus of the case

of the plaintiff and the contesting case of the defendant in the form of issues

emerges out of that. Being a civil suit, this suit is to be decided on the basis of

preponderance of probabilities.

        In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in

183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe

as under:­


      CS No. 346/14                                                            page 6 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


            "A civil case is decided on balance of probabilities. The

            balance of probabilities in the present case shows that the

            Power of Attorney Ex. PW3/1 and the Will Ex. P­1 were duly

            executed by the deceased Sh. Sohan Singh. The Power of

            Attorney is after all a registered Power of Attorney, and more

            importantly, the original title documents of the subject

            property are in the possession of the respondent No. 1 andwhich would not have been, if there was not to be any transfer

            of title in the suit property. Merely because two views are

            possible, this

            court would not interfere with one possible and plausible

            view which is taken by the court below, unless such view

            causes grave injustice. In my opinion, in fact, grave injustice

            will be caused not to the objectors/appellants but to the

            respondent No. 1 her father­in­law Sh. Sewa Singh, if the

            impugned judgment is set aside."In the case ofVishnu Dutt Sharma Vs. Daya Sapra, reported in (2009)

13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:'' 8. There cannot be any doubt or dispute that a creditor can

            maintain a civil and criminal proceedings at the same time.

            Both the proceedings, thus, can run parallel. The fact required

            to be proved for obtaining a decree in the civil suit and a

            judgment of conviction in the criminal proceedings may be


      CS No. 346/14                                                            page 7 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


            overlapping but the standard of proof in a criminal case vis­a­

            vis a civil suit, indisputably is different. Whereas in a criminal

            case the prosecution is bound to prove the commission of the

            offence on the part of the accused beyond any reasonable doubt,

            in a civil suit " preponderance of probability" would serve the

            purpose for obtaining a decree".In the cases ofVishnu Dutt Sharma Vs. Daya Sapra, reported in (2009)

13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183

(2011) DLT 418, it has been held that a civil case is to be decided on balance

of probabilities.12.Section 101of the Evidence Act, 1872 defines " burden of proof"which is reproduced as below:­

                          " 101. Burden of proof­ whoever desires any court to

                 give judgment as to any legal right or liability dependent on

                 the existence of facts which he asserts, must prove that those

                 facts exist.When a person is bound to prove the existence of

                 any fact, it is said that the burden of proof lies on that

                 person."Section 101of the Evidence Act has clearly laid down that the burden

of proving a fact always lying upon the person who asserts the facts. Until

such burden is discharged, the other party is not required to be called upon to


      CS No. 346/14                                                            page 8 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


prove his case. The court has to examine as to whether the person upon whom

the burden lies has been liable to discharge his burden. Until he arrives at such

conclusion he cannot proceed on the basis of weakness of other party.

Further,Section 58of the Indian Evidence Act contained that no fact need to

be proved in any proceedings which parties thereto or their agents agree to

admit at the herein, or which, before the hearing, they agree to admit by any

writing under their hands or which by any rule of pleadings enforce at the

time they are deemed to have admitted by their pleadings. As held in

judgment reported asUttam Chand Kothari Vs. Gauri Shankar Jalan, AIR

2007 Gau. 20, admission in the written statement cannot be allowed to be

withdrawn.13.     In the present case, the transaction between the parties is admitted

though the defendant denied the liability contending only that he has paid all

the outstanding dues alongwith cost of Rs. 1,000/­ pursuant to the order of Ld.

MM dt. 04.09.12. It is noted that plaintiff examined PW­1 Chief Manager of

the Uttam Nagar branch who proved the facts of the case against the defendant

and also the relevant documents. Even otherwise, the defendant has admitted

the factum of the taking loan claiming that only Rs. 1,00,000/­ was given to

him and he has paid Rs. 1,10,000/­ to the then Manager by way of self payee

cheque. Admittedly, the cheque issued by defendant were dishonoured and

defendant has not deposited any amount to the plaintiff bank.CS No. 346/14                                                            page 9 of 14
State Bank of India V/s BakoliSh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.14.     It is noted that onus to prove the defence and rebuttal the claim of the

plaintiff was upon the defendant. The testimony of PW­1 in one way or the

other remained un­impeached and un­controverted. There is nothing on record

either produced or proved by the defendant that he has paid Rs. 1,10,000/­ by

way of any self payee cheque to Sh. V. P. Ojha, the then Branch Manger. Infact

no steps was taken by defendant to prove such contentions nor any witness

was summoned from any bank to prove such encashment of self payee cheque.

The defendant has not proved any complaint on record as claimed by him nor

produced any other persons so cheated like him by Mr. V. P. Ojha or his

agents as well as the bank. Admittedly, the defendant has not deposited any

amount with the bank and the defendant failed to produce any documents

regarding terms and condition by virtue of which he was supposed to pay any

amount to the bank as claimed. Merely oral and bald averments are not

sufficient. Steps was not taken by defendant also to call any witness like V. P.

Ojha or his agent as claimed in the WS. The plaintiff has further proved the

statement of account regarding the due amount of the defendant which is Ex.

PW 1/11. There is no denial or dispute regarding other relevant material which

was deposed by PW­1 and the documents was proved as per law.15.     The defendant during cross examination admitted that he has availed

the loan which was repaid in installment ; the cheque issued by him is

dishonoured on presentation; he received the legal notice and compliant case



      CS No. 346/14                                                          page 10 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


U/s 138NI Actwas filed against him. The defendant was convicted in the

complaint case U/s 138NI Actand has paid fine of Rs. 1,000/­. Admittedly,

the defendant has not placed on record any NOC or no due certificate from

the plaintiff to show that he is not liable to make any payment and is

discharged from liability. The defendant claimed that he has paid Rs.

1,25,000/­ in total but even failed to give any date or amount paid by him.

Moreover, the statement of account Ex. PW 1/ 11 regarding due and

outstanding amount against the defendant is proved by plaintiff as per law and

defendant has not produced any other statement of account in support of

contentions and he has cleared all the dues and no amount remained payable

to the plaintiff. This court is of the considered opinion that there is nothing

proved on record by the defendant except the bald averments.16.     The branch Manager of the plaintiff examined himself as PW­1 and

also proved the relevant documents in support of contentions. Even otherwise,

the case of the plaintiff is admitted in one way or the other. During cross­

examination, the testimony of the plaintiff remained un­impeached and un­

controverted. This court does not find any reason to disbelieve the testimony

of the plaintiff and in fact nothing was proved by the defendant in support of

contentions or payment of due and outstanding amount to the plaintiff despite

service of the legal notice. The testimony of DW­1 was further shattered

during cross­examination regarding the repayment of the loan amount. The



      CS No. 346/14                                                          page 11 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


testimony of the DW­1 is neither reliable nor sustainable. As mentioned, the

suit has to be decided on the basis of preponderance of probabilities. In view

of the aforementioned discussions, this court is of the considered opinion that

the defendant failed to make the payment to the plaintiff despite service of the

legal notice and no payment was made by the defendant as claimed in the WS.17.      The pleadings of the parties and evidence on record reveals that the

defendant categorically failed to prove the contentions in view of the

pleadings. The ratio of judgment reported as 1982 (1) RCR 637 is squarely

applicable in the facts of this case. Further, as held inSubhra Mukharjee Vs.

Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the

allegation must prove it. The defendant failed to produce any oral or

documentary evidence to prove the contentions. Undisputedly, the burden lies

on the defendant to establish such facts. The plaintiff is accordingly entitled

for the recovery of the amount as prayed in the suit. This suit of the plaintiff is

also filed within the prescribed period of limitation.18.      I have gone through the judgment reported as (2003) 8 SCC 752. As

held:­

                   Whether a civil or a criminal case, the anvil of testing of

                " proved", " disproved" and " not proved" as defined inSection 3of the Indian Evidence Act, 1872 is one and the

                same. It is the valuation of the result drawn by the

                applicability of the rule contained inSection 3of the


      CS No. 346/14                                                          page 12 of 14
State Bank of India V/s Bakoli
           Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.Evidence Act, 1872that makes the difference. In a suit for

                possession of property based on title, if the plaintiff creates

                a high degree of probability of his title to ownership,

                instead of proving his title beyond any reasonable doubts,

                that would be enough to shift the onus on the defendant. If

                the defendant fails to shift back the onus, the plaintiffs

                burden of proof would stand discharged so as to amount to

                proof of the plaintiff's title.The present case being a civil one, the plaintiff could not

                be expected to prove his title beyond any reasonable doubt;

                a high degree of probability lending assurance of the

                availability of title with him would be enough to shift the

                onus the plaintiff's burden of proof can safely be deemed to

                have been discharged. In the opinion of this Court the

                plaintiff has succeeded in shifting the onus on the defendant

                and therefore, the burden of proof which lay on the plaintiff

                had stood discharged.The ratio of the judgment is squarely applicable in the facts and

circumstances of this case.19.     In view of the unrebutted testimony of the PWs and the materials on

record, this court of the considered opinion that the plaintiff has proved the

case against the defendant. It is further proved that defendant has failed to



      CS No. 346/14                                                          page 13 of 14
State Bank of India V/s Bakoli
            Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.


make due and outstanding payment to the plaintiff despite repeated request

and reminders and he is liable to make the payment. I thus do not see any

reason why the suit cannot be decreed. The plaintiff has prayed for grant of

pendente lite and future interest @ 22.5 % p.a. which seems to be excessive.

This court is inclined to grant simple interest @ 12 % p.a being reasonable

and as per prevalent market rate which shall meet the ends of justice. Issue

No. 1 is decided in favour of plaintiff and against the defendant.

Relief:­20.     In view of the aforesaid discussions and for the reasons recorded, the

suit of the plaintiff is decreed in the following manner:­(a)     Plaintiff is granted a decree for recovery of Rs. 3,55,779/­ alongwith

simple interest @ 12% p.a. from the date of filing of the suit till the date of

realization;(b)     Plaintiff is granted costs of suit.

21.     Decree sheet be drawn accordingly.

22.     File be consigned to record room.



 Announced in open Court
on this 12th day of August, 2015
                                                            G. N. Pandey
                                                     Addl. District Judge­02 (NE)
                                                      Karkardooma Courts, Delhi.



      CS No. 346/14                                                           page 14 of 14
State Bank of India V/s Bakoli