Delhi High Court
Hdfc Bank Limited vs Mohd. Shafeeq on 13 July, 2015
Author: Rajiv Shakdher
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 441/2015
HDFC BANK LIMITED ..... Appellant
Through: Mr Rajinder Mathur, Adv.
versus
MOHD SHAFEEQ ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 13.07.2015
CM No. 11937/2015 (Exemption)
1. Allowed subject to just exceptions.
CM No. 11938/2015 (Condonation of delay)
2. This is an application seeking condonation of delay of 3 days in filing
the appeal. For the reasons given therein the application is allowed and the
delay is condoned.
3. Application stands disposed of.
RFA 441/2015
4. This is an appeal preferred against the judgement and decree dated
25.03.2015, passed by the Additional District Judge-I, Karkardooma Courts,
Delhi. By virtue of the impugned judgement the appellant's suit, which was
initially filed as a summary suit, under Order 37 of the Code of Civil
Procedure, 1908 (in short the CPC), which was later on converted into an
ordinary suit, was dismissed.
5. Briefly, the case of the plaintiff, before the trial court, was that a loan
in the sum of Rs. 3.10 lacs was sanctioned in favour of the respondent for
purchase of a Tata Safari vehicle, bearing registration no. DL 3C W-3967.
As per the terms, according to the appellant, the loan amount had to be paid
in 36 Equal Monthly Instalments (EMI). Each EMI was of a sum of Rs.
11,285/-.
5.1 The appellant claimed that the defendant had executed the necessary
documents, which included the loan agreement and a promissory note.
According to the appellant, since the respondent did not adhere to the
financial discipline, a legal notice was issued to him, which is, dated
20.10.2009.
5.2 By the said legal notice, the loan was fore-closed and the entire loan
amount was recalled. The respondent was, accordingly, called upon to pay
the loan amount with interest and attendant charges.
6. It is in this background that the appellant says that the aforementioned
suit was instituted against the respondent.
7. The respondent, in his written statement, broadly, took the defence
that the signatures found on the loan agreement, as well as the loan
application dated 28.04.2007 (Ex. C-1), were not his. It was also contended,
that the loan amount was never received by him. Furthermore, the
respondent claimed that the vehicle in issue was, in fact, purchased by the
respondent from the previous owner, Ms Shashi Arora. For this purpose,
cash receipt-cum-sale letter (Ex. DW-1/1) was produced and proved.
8. The trial court has returned the following findings of fact. First, that
the loan amount was never received by the respondent. Second, that the
cash receipt-cum-sale letter (Ex. DW-1/1) was proved by DW-2; who was a
witness to the execution of the said document. Third, that the alleged loan
amount was, in fact, even according to the appellant, disbursed to its Direct
Selling Agent (DSA) and not to the respondent. Fourth, that the appellant
had not examined an expert witness to prove the signatures of the
respondent on the loan documents.
9. Mr Mathur, learned counsel for the appellant, says that since the loan
documents and other attendant documents were signed by the respondent,
the finding returned by the trial court was perverse and deserves to be
reversed. Further it was submitted by the learned counsel that the
documents pertaining to the vehicle clearly indicated that the vehicle was
hypothecated to the appellant.
10. After having considered the matter at some length, according to me,
this is a unique case wherein the appellant, which is a bank, seeks to recover
money from the respondent i.e. the purported borrower, without proving that
the amount was actually received by him. During the course of the
argument, Mr Mathur has conceded that the amount was disbursed by the
appellant to its DSA. On being further queried, Mr Mathur candidly
accepted that neither the DSA was impleaded as a party nor was he
examined as a witness.
11. If, the stand taken by the appellant is to be believed, surely the DSA,
in the very least, should have been examined which could have perhaps
established that the amount received by him had actually been paid to the
borrower i.e., the respondent. Ruefully no such step was taken by the
appellant. This, according to me, is a fatal error, which, to my mind, has
resulted in appellant's situation reaching such a pass. On the other hand,
the respondent has proved the document (Ex. DW-1/1) via the testimony of
DW-2.
11.1 This brings me to the argument advanced by Mr Mathur that not only
the loan documents bore signatures of the respondent but also that the
Registration Certificate (RC) pertaining to the subject vehicle indicated that
it was hypothecated to the appellant.
11.2 In my view, the submissions of the appellant made in this behalf have
been correctly dealt with by the trial court by applying the principle of
preponderance of probability. The trial court after weighing the evidence,
accepted the stand of the respondent that after purchasing the subject vehicle
directly from the vendor i.e. Ms Shashi Arora, he had applied for a loan to
the appellant amounting to Rs. 2 lacs via, one, Mr Jain (i.e. the DSA) for the
purposes of investing the money in his business, and that, Mr Jain (i.e. the
DSA) took his signatures on certain papers which were not filled up and also
collected copies of identity documents, as well as, the registration certificate
book.
11.3 In my view, no fault can be found with the appreciation of the stand
taken by the parties before the trial court, based on the evidence available on
record.
12. In these circumstances, I am of the view that no interference is called
for with the judgement of the trial court. Accordingly, the impugned
judgement is sustained.
13. The appeal is, consequently, dismissed.
RAJIV SHAKDHER, J
JULY 13, 2015
kk
