Delhi High Court
Icici Bank Ltd vs Astha Kumar & Anr on 15 September, 2016
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.09.2016
+ CM(M) 222/2016
ICICI BANK LTD ..... Petitioner
Through Mr.Punit K.Bhalla Advocate
versus
ASTHA KUMAR & ANR ..... Respondents
Through Mr.M.S.Kaushik, Adv. for R-1 & R-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
CM No. 8413/2016 (exemption)
Allowed subject to all just exceptions.
CM(M) 222/2016
1. By the present petition, the petitioner seeks to impugn the order dated
21.12.2015 passed by the trial court.
2. The plaintiff has filed a suit for recovery of Rs.3,00,936.56 stating
that the respondents are the borrowers of the bank and have availed loan
facility from the plaintiff under its Car Loan Scheme. It is averred in the
plaint that total sum of Rs.5 lac was disbursed for the purchase of the vehicle
and the said loan was to be repaid in 60 equated monthly instalments of
Rs.11315 each.
3. It is averred that the defendants failed to discharge their liability and
CM(M)222/2016 Page 1
defaulted in making the regular equated monthly instalment. The plaintiff
issued a notice on 13.01.2015 recalling/foreclosing the entire loan agreement
and in spite of receiving notice, the defendants have failed to make the
payment of the termination amount. Hence, the said amount of
Rs.3,00,936.56 has been claimed as per statement of account dated
04.02.2015.
4. It is also averred that the court has territorial jurisdiction to try the
present suit as the agreement was executed between the parties at ICICI
Bank Limited having its office at 2nd Floor, Videocon Tower, Block-E1,
Jhandewalan Extn, New Delhi.
5. When the matter was filed, the trial court without issuing summons in
the case vide order dated 16.04.2015 held that this court has no territorial
jurisdiction to try the suit and directed the plaintiff to file the same before
the court of competent jurisdiction.
6. In an appeal being FAO No.214/2015 dated 06.11.2015, this court set
aside the aforesaid order of the trial court holding that at this stage a cause of
action is shown to arise within the territorial jurisdiction of this court and
that the trial court has erred in concluding and observing that the loan
agreement and the attendant documents do not appear to have been executed
at Videocon Tower, Jhandewalan Extn., New Delhi. This court held that this
aspect was a matter for trial and the trial court could not have, at the
threshold, returned the plaint on a mere impression. The matter was
remanded back. The trial court has now passed the impugned order.
7. Instead of proceeding with the adjudication of the suit and issuing
summons to the defendants, the trial court has now passed the following
order:
CM(M)222/2016 Page 2
"..........Hence, the suit filed by the plaintiff for recovery of
aggregate amount of Rs.2,83,075.69p without service of the
Recall Notice would be premature. I may note that what has
been placed on record is only the photocopy of the Bulk
Dispatch Register of the plaintiff and not the original dispatch
proof of the Postal Department alongwith the Tracker Report.
The plaintiff is directed to place on record the dispatch proof
and the service report i.e. Tracker Report of the Indian Post and
Telegraph Department confirming the service upon the
department since only thereafter the total amount of
Rs.2,83,075.69p become due, failing which the default liability
of the defendant qua the plaintiff is limited to Rs.27,865/- only
(below Pecuniary Jurisdiction of this Court) and not the entire
aggregate amount of Rs. Rs.2,83,075.69p.
Lastly the Statement of Account filed by the plaintiff
which is an electronic from does not appear to be compatible
with the demand being raised so as to create jurisdiction
(pecuniary) within this court. The overdue charges have been
levied multiple times on the same cheque not only in the same
month but are also reflected multiple times in each succeeding
month. It is also not clear as to how the interest on the future
EMIs which contain the principle as also the basic interest
could have been claimed. On the face of it, there is some
confusion which needs to be cleared and hence the Authorised
Representative of the plaintiff shall file an affidavit and inform
this court as to how many instalments have already been
received and how many instalments have been fallen due till the
date of filing of the suit and the amount thereof. He shall also
inform whether the instalment/EMI amount which have been
fallen due, contains only the principal amount or the added
interest as per the loan agreement and further in case if it
includes only the interest, then how the interest on the future
instalments which were yet to fall due, have been included at
this stage."
8. The learned counsel appearing for the respondents submits that the
respondents had paid the entire loan amount. However, for the purpose of
CM(M)222/2016 Page 3
adjudication of the present petition, this contention does not help the
respondents. This is an issue which has to be gone into by the trial court.
9. A perusal of the impugned order shows that the said order has been
passed after the appeal filed before this court was disposed off. The purpose
why the direction has been given is not valid.
10. The Civil Procedure Code has been enacted to govern the procedure
of the Civil Court. The code is exhaustive on all matters specifically dealt
with by it. Normally, a judge cannot disregard the said enactment. The code
binds all courts so far as it goes.
11. The Privy Council in the case of Gokul Mandar v. Pudmanund
Singh, (1902) ILR 29 Calcutta 707 held as follows:
"They will further observe that the essence of a Code is to be
exhaustive on the matters in respect of which it declares the
law, and it is not the province of a Judge to disregard or go
outside the letter of the enactment according to its true
construction."
12. Similarly, the Supreme Court in Rasiklal Manikchand Dhariwal &
Anr. v. M.S.S.Food Products, (2012) 2 SCC 196, held as follows:
"93. The doctrine of proportionality has been expanded in
recent times and applied to the areas other than administrative
law. However, in our view, its applicability to the adjudicatory
process for determination of 'civil disputes' governed by the
procedure prescribed in the Code is not at all necessary. The
Code is comprehensive and exhaustive in respect of the matters
provided therein. The parties must abide by the procedure
prescribed in the Code and if they fail to do so, they have to
suffer the consequences. As a matter of fact, the procedure
provided in the Code for trial of the suits is extremely rational,
reasonable and elaborate. Fair procedure is its hallmark. The
courts of civil judicature also have to adhere to the procedure
CM(M)222/2016 Page 4
prescribed in the Code and where the Code is silent about
something, the court acts according to justice, equity and good
conscience. The discretion conferred upon the court by the
Code has to be exercised in conformity with settled judicial
principles and not in a whimsical or arbitrary or capricious
manner. If the trial court commits illegality or irregularity in
exercise of its judicial discretion that occasions in failure of
justice or results in injustice, such order is always amenable to
correction by a higher court in appeal or revision or by a High
Court in its supervisory jurisdiction."
13. Order 4 Rule 1 CPC provides that a suit is to be instituted by
presenting a plaint. Order 5 Rule 1 CPC provides that when a suit has been
duly instituted, summons may be issued to the defendant to appear and
answer the claim and to file the written statement of his defence. Issues are
framed under Order 14 CPC, based on material propositions of facts and law
where parties are at a variance and on which the right decision of the case
appears to depend. A suit cannot normally be rejected at the initial stage
except as stated under Order 7 Rule 11 CPC which provides for rejection of
a plaint where, it does not disclose a cause of action; relief claimed is
undervalued; relief claimed is properly valued, but the plaint is written upon
paper insufficiently stamped or where the suit appears from a statement in
the plaint to be barred by any law.
14. In the present case, the trial court instead of issuing summons to the
respondents, has gone into an exercise which normally a defendant would
perform. It seeks to adjudicate upon issues other than which fall under Order
7 Rule 11 CPC. It has questioned the statement of account filed by the
petitioner and also sought an affidavit of the competent officer explaining as
to how overdue charges have been imposed and also sought other details. It
CM(M)222/2016 Page 5
directed the petitioner to place on record the dispatch proof of the recall
notice. Personal presence of the officer is also sought.
15. The procedure so adopted is unknown to law. As held by the
Supreme Court in the case of Anil Rishi v. Gurbakash Singh, (2006) 5 SCC
558, the burden of proving the facts lies on the party who substantially
asserts the affirmative of the issue and not the party who denied it. The court
held as follows:
"8. .........The suit will fail if both the parties do not adduce
any evidence, in view of Section 102 of the Evidence Act.
Thus, ordinarily, the burden of proof would be on the party who
asserts the affirmative of the issue and it rests, after evidence is
gone into, upon the party against whom, at the time the question
arises, judgment would be given, if no further evidence were to
be adduced by either side."
16. The impugned order has gone into a roaming inquiry on the merits
and demerits of the facts and averments made by the petitioner in the plaint.
It is for the petitioner to prove its case. The procedure adopted is illegal and
irregular. The order occasions failure of justice.
17. The impugned order is set aside. Summons be issued to the
defendants returnable for a date to be fixed forthwith by the trial court.
Thereafter, the trial court may proceed with the adjudication of the suit in
accordance with the procedure stated in Civil Procedure Code. The petition
stands disposed of.
JAYANT NATH, J.
SEPTEMBER 15, 2016/v
CM(M)222/2016 Page 6
