Shri Srikrishan vs Punjab National Bank
2010 Latest Caselaw 5897 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                     RFA No.554/1999

 %                                             24th December, 2010

 SHRI SRIKRISHAN                                           ...... Appellant


                                   Through:    None

                             VERSUS

 PUNJAB NATIONAL BANK                                      .... Respondent

Through: None CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. This case is effective item no.3 in the regular list and no one has

appeared in the matter although it is 11.00 AM. This case is on the regular

board of this court since 6.12.2010. No one appeared for the appellant on

27.7.2009 as also on 1.5.2009. I have therefore perused the record and am

disposing of the appeal.

2. The facts of the case are that the respondent bank filed a suit against

the appellant/defendant for recovery of dues on account of non-payment of

loan taken by the appellant for construction of a house. The loan was

RFA No 554/1999 Page 1 granted on 6.6.1987 when the necessary documents were executed. The

appellant mortgaged the property being property no.258 measuring 120 sq.

yards out of Khasra No. 628/468 to 480 situated in the abadi village

Sultanpur Majra, Delhi. A registered mortgage deed was also executed. The

appellant who was an employee of the bank got a concessional rate of

interest in terms of the mortgaged deed, however, the mortgaged deed

provided that in case the appellant ceased to be an employee of the bank

then normal commercial rates of interest would be charged. The relevant

findings of the trial court whereby the dues have been proved against the

appellant are contained in paras 8 and 9 of the impugned judgment and

which read as under:-

"8. Admittedly, the plaintiff Bank advanced a loan of Rs.88,500/- to the defendant for construction of a house on his said plot which was sanctioned vide letter dated 14.3.87 Ext. PW1/1. The defendant has admitted while appearing as DW-1 that he took a loan of Rs.88,500/- and in his cross -examination he has admitted that a sanction letter was duly received from the head office when his housing loan was sanctioned. Admittedly, the defendant executed the promissory note Ext.PW1/2, letter of waiver Ext.PW1/3, affidavit Ext.PW1/7, letter of authority Ext. PW1/8, irrevocable power of attorney Ext.PW1/9 and agreement Ext.PW1/10 in favour of erstwhile New Bank of India on 6.6.87 and the defendant also executed a simple mortgage deed of his sale plot No.258 measuring 120 sq. yds, consisting of khasra No.628/468 to 480 situated in Village Sultanpur Majra in favour of erstwhile New Bank of India on 9.6.87 duly registered with Sub-

Registrar to secure the said loan vide Ext. PW1/6. The plaintiff Bank has specifically pleaded in para Nos. 7 & 8 of the plaint regarding execution of these documents by the defendant in favour of plaintiff Bank and in the corresponding para of the written statement, the defendant has not denied the execution of these documents at all and merely pleaded that para Nos.7 & 8 of the plaint regarding executing of these documents by the

RFA No 554/1999 Page 2 defendant in favour of plaintiff bank and in the corresponding para of the written statement, the defendant has not denied the execution of these documents at all and merely pleaded that para Nos.6 & 7 of the plaint are matter of record. Moreover, at the time of conducting the admission and denial, the defendant has admitted his signatures on these documents and while appearing as DW-1, defendant did not state in his examination-in-chief that these documents were not executed by him. Besides this, the plaintiff examined PW-1 Madan Mohan Kapoor who remained posted as Manager/Lean Officer at Nangloi branch Delhi, from January, 1994 to June, 1997 and proved the sanction letter Ext.PW1/1 and the said document executed by the defendant in favour of the plaitntiff Bank. PW-1 has also proved the letters Ext.PW1/11 and Ext.PW1/12 dated 1.5.97 by which defendant wrote to the plaintiff Bank that he was dismissed employee of erstwhile New bank of India. He has also proved letters Ext.PW1/13 and Ex.PW1/14 dated 9.2.96 and 12.7.96 respectively, by which defendant assured the plaintiff Bank to clear all the dues in his accounts. He also proved the acknowledgement of debts Ext.PW1/15, Ex.PW1/16 and Ext.PW1/17 dated 30.12.91, 30.12.94 and 1.6.95 by which defendant confined the balance amount in his said Housing Loan account with the plaintiff Bank. Plaintiff has also examined PW-2 Rajinder Pd. Bhatnagar who was proved the legal notice Ext.PW2/2 dated 18.5.98 sent to the defendant through its Counsel and postal receipt Ext.PW2/3, UPC Ext.PW2/4. He has also proved the certified copy of statement of account Ext.PW2/5 showing a debit balance of Rs.1,09,525/- against the defendant. This copy of statement of account is duly certified copy as prescribed under the provisions of Bankers Books of Evidence Act and is per-se admissible and in this regard I am supported by a Division Bench Judgment of our Hon'ble High Court in the case The Punjab National Bank Ltd. Vs. Vinod Kumar AIR 1957 Punjab (Delhi Bench) 257.

9. The Ld. counsel for the defendant has argued that rate of interest as agreed was 5% p.a. and not @ 16.77% p.a., and as such plaintiff Bank cannot charge interest more than the settled rate of interest. It is correct that in the promissory note Ext.PW1/2 and mortgage deed Ext.PW1/6 the rate of interest is mentioned @ 5% p.a., with quarterly rest. However, in the loan sanctioned letter Ext.PW1/1 dated 14.3.87 at page 10 it is provided that if the borrower employees ceased to be in the employment of the Bank, either by registration or dismissal etc.,

RFA No 554/1999 Page 3 before the adjustment of the loan, commercial rate of interest prevailing at the relevant time (presently 17.5%) shall be charged on the amount outstanding in the loan account. Plaintiff has specifically pleaded in para No.6 of the plaint that the said loan was sanctioned vide sanction letter dated 14.3.87 and this fact has not been denied at all by the defendant in the corresponding para of the written statement and merely mentioned that para No.6 is a matter of record. Furthermore, the defendant has admitted in his cross-examination that when his loan was sanctioned, a sanction letter was duly received from the Head Office. So, this all shows that defendant has been in the knowledge of this fact that he will have to pay the commercial rate of interest in case he ceased in the employment of the Bank. It has also been admitted by the defendant that he has been terminated from the service of the plaintiff Bank and he has not pleaded that he has challenged his dismissal in any Court of law but merely pleaded that he has made representation to the Higher Authorities of the Bank. Mere making a representation to the Higher Authorities of the Bank does not mean that his termination order has been withdrawn/cancelled/recalled. Besides this, the defendant has admitted his signatures on the balance confirmation letters Ext.PW1/17 dated 1.6.95 and Ext.PW1/16 dated 30.12.94. Besides this, PW-1 proved these documents and the defendant has not cross-examined PW-1 on these counts. He has also not denied the contents or execution of these documents while appearing as DW-1. He was removed from service on 16.1.93 and balance confirmation by said documents was done by the defendant after his termination vide document Ext.PW1/17 and Ext.PW1/16 dated 1.6.95 and 30.12.94 and the balance confirmed by the defendant after applying interest by the plaintiff at the enhanced rate of interest. This shows that the defendant was aware of the fact that he is to pay interest @ 16.77% p.a., with quarterly rest and not at the concessional rate of interest at 5% p.a. Therefore, it is amply proved by the plaintiff Bank that the plaintiff Bank is entitled to prevailing rate of interest @ 16.77% p.a., with quarterly rests from the defendant. Therefore, the plaintiff Bank will be entitled to Rs.1,09,525/- with interest @ 16.77% p.a., with quarterly rest from the defendant along with cost of the suit. Hence, this issue is declared in favour of the plaintiff Bank and against the defendant."

3. A reading of the aforesaid paras show that the appellant was liable and

RFA No 554/1999 Page 4 there is nothing illegal or perverse in the findings of the trial court to set

aside the same. The suit was also within limitation because the loan was

granted on 6.6.1987 and a chain of acknowledgment of debts were executed

which were duly proved and exhibited being dated 30.12.1991 (Ex.PW1/15),

30.12.1994 (Ex.PW1/16), 1.6.1995 (Ex.PW1/17) , 9.2.1996 and 12.7.1996

(Ex.PW1/13 and Ex.PW1/14). The suit has been filed on 29.5.1998 and is

clearly within limitation. No grounds are made out for setting aside the

impugned judgment and decree.

4. The appeal is therefore dismissed, leaving the parties to bear their own

costs. Trial court record be sent back.

Interim orders stand vacated.

DECEMBER 24, 2010                                   VALMIKI J. MEHTA, J
ib




RFA No 554/1999                                                         Page 5