Delhi High Court
Icici Bank Ltd vs Kamal Kumar on 28 February, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28th February, 2017
+ FAO 2/2016 & CM No.113/2016
ICICI BANK LTD ..... Appellant
Through: Mr. Punit K. Bhalla, Adv.
versus
KAMAL KUMAR ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. Learned counsel for the appellant seeks dispensation of the
service of notice on the respondent on the ground that the impugned
order was passed by the learned Trial Court before service of notice on
the respondent. The Trial Court record has been perused. Considering
that the impugned order was passed before service of notice on the
respondent, the notice to the respondent in this appeal is dispensed
with and the appeal is taken up for hearing.
2. The appellant instituted a suit for recovery of Rs.8,08,491/-
against the respondent on the ground that the appellant advanced a
loan of Rs.4,40,000/- to the respondent for purchase of car make
RITZ/VDI. The loan was repayable in 60 monthly instalments of
Rs.9,900/- each. The respondent executed credit facility application,
deed of hypothecation and irrevocable power of attorney in favour of
the appellant. The respondent defaulted in making the payment of the
monthly instalments and, therefore, the appellant recalled the loan
vide notice dated 3rd December, 2014 and thereafter, instituted a suit
for recovery on 24th January, 2015. The appellant also sought an ex
parte order for appointment of the Receiver along with suit.
3. Vide order dated 27th January, 2015, the Trial Court issued
notice of the suit and the application for appointment of the Receiver
to the respondent for 17th March, 2015. Aggrieved against the non-
appointment of the Receiver, the appellant approached this Court in
FAO No.49/2015 which was allowed by this Court vide judgment
dated 29th May, 2015 and this Court appointed the Receiver to take
over the possession of the vehicle from the respondent.
4. Vide order dated 12th August, 2015, the Trial Court held that
substantial cause of action arose out of Delhi as respondent is resident
of Gurgaon; credit facility application, deed of hypothecation and
irrevocable power of attorney were not executed in Delhi;
disbursement did not take place within its territorial jurisdiction and
substantial part of the cause of action arose at the place where the
respondent's bank was situated.
5. Learned counsel for the appellant submits that the loan was
disbursed from the plaintiff's office at Videocon Tower, Jhandewalan,
New Delhi; loan was repayable at Videocon Tower, Jhandewalan,
New Delhi, credit facility application, deed of hypothecation and
irrevocable power of attorney were executed at Delhi and the same has
been specifically mentioned in the documents. Reliance is placed on
the judgment of this Court in ICICI Bank v. Astha Kumar, (2015)
224 DLT 651 in which this Court set aside the similar order passed by
the learned Trial Court.
6. The Trial Court record has been perused. In para 24 of the
plaint, the appellant has specifically pleaded that the loan was
disbursed from the plaintiff's office at Videocon Tower, Jhandewalan
Branch, New Delhi and it was repayable at the same address. Para 24
of the plaint is reproduced hereunder:-
"That the loans was disbursed from the office of the
plaintiff situated at Videocon Tower, Jhandewalan,
New Delhi. The loan is repayable at Videocon
Tower, Jhandewalan, New Delhi. The said branch is
situated under the jurisdiction of police station
paharganj and as majority of cause of action has
taken place under the territorial jurisdiction to try
and entertain the present suit."
7. Deed of hypothecation dated 28th January, 2017 specifically
records the place of execution as Delhi. Relevant portion of the same
is reproduced hereunder:-
"1.A DETAILS OF PLACE AND DATE OF
EXECUTION OF THIS DEED
At: DELHI in the State of DELHI
Date: The 28 day of JAN, Two Thousand and 11."
8. The original irrevocable power of attorney dated 3rd February,
2017 records that the same was executed in Delhi. Relevant portion of
the same is reproduced hereunder:-
"IN WITNESS WHEREOF I/we, the Borrower/s,
has/have executed these present at VI, Delhi (place) on
this 3rd day of Feb (month), 2011."
9. In ICICI v. Astha Kumar, (supra) this Court set aside a similar
order passed by the Trial Court holding that Trial Court at the initial
stage is required to accept the veracity of assertions made in the plaint.
This case squarely covered by the principles laid down in ICICI v.
Astha Kumar, (supra).
10. This Court is of the view that the averments made by the
appellant in the plaint and the documents showing the place of
execution within the jurisdiction of the Trial Court were sufficient to
issue notice to the respondent.
11. The appeal is allowed and the impugned order is set aside. The
appointment of the Receiver passed by this Court on 29th May, 2016 is
also restored. The Trial Court shall recommence the proceedings and
issue notice to the respondent.
12. The Trial Court record be returned back forthwith and the
matter be listed before the Trial Court on 1st April, 2017.
13. Copy of this judgment be given dasti to learned counsels for the
parties under signature of Court Master.
FEBRUARY 28, 2017 J.R. MIDHA, J.
ak
