Surender Kumar vs M/S. Phoenix Arc Private Limited
2017 Latest Caselaw 6324 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.942/2017

%                                                10th November, 2017

SURENDER KUMAR                                             ..... Appellant
                          Through:       Mr. Nitin Mittal, Advocate.
                          versus

M/S. PHOENIX ARC PRIVATE LIMITED                         ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.40462/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.40463/2017 (for condonation of delay)

2. For the reasons stated in the application, delay of 65 days

in re-filing the appeal is condoned.

C.M. stands disposed of.

RFA No.942/2017

3. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the judgment of the Trial Court dated 23.3.2017 by which

the trial court has decreed the suit of the respondent/plaintiff for a sum

of Rs.9,33,833.84/- along with interest at 9% per annum.

Respondent/defendant/asset reconstruction company was the assignee

of the creditor and the appellant/defendant was the borrower who had

failed to repay the loan amount.

4. The facts of the case are that the respondent/plaintiff

pleaded that the appellant/defendant approached the erstwhile the

Royal Bank of Scotland which was successor of ABN Amro Bank for

grant of a personal loan and the appellant/defendant was granted

personal loan on 18.7.2008 of an amount of Rs.7,98,589/- repayable in

60 monthly installments of Rs.20,492/-. It was pleaded that the

appellant/defendant failed to repay the amount and adhere to financial

discipline and therefore the amount as claimed has become due from

the appellant/defendant. It was further pleaded that in terms of

notification of Reserve Bank of India, ABN AMRO Bank was

permitted to be substituted as the Royal Bank of Scotland N.V in the

second schedule of the Reserve Bank of India Act, 1934 and the Royal

Bank of Scotland vide a deed of assignment dated 30.4.2012 assigned

the loan amounts/debts to the respondent/plaintiff and the

respondent/plaintiff therefore was entitled to the suit amount inasmuch

as the appellant/defendant failed to pay the same in spite of the final

demand notice dated 22.1.2014.

5. The appellant/defendant contested the suit and raised

various objections. It was pleaded that the respondent/plaintiff had no

privity of contract with the appellant/defendant. It was also pleaded

that the assignment deed relied upon by the respondent/plaintiff dated

30.4.2012 was not duly registered and hence could not be relied upon.

On merits, the appellant/defendant stated that the signatures of the

appellant/defendant on the loaning documents were of the

appellant/defendant, but, the signatures were taken on blank papers

and no consideration was ever passed to the appellant/defendant from

the Royal Bank of Scotland.

6. After pleadings were complete, the trial court framed the

following issues:-

"i. Whether plaintiff has locus standi to file present suit? OPP ii. Whether suit has been properly valued for the purpose of court fees and jurisdiction? OPP iii. Whether present suit is within limitation? OPP iv. Whether this court has territorial jurisdiction to entertain this suit?

OPP

v. Whether defendant had paid the loan amount as alleged? OPD vi. Whether plaintiff is entitled for recovery of suit amount as prayed?

OPP vii. Whether plaintiff is entitled for the interest over the suit amount, if so, at what rate and for what period? OPP viii. Relief."

7. Respondent/plaintiff proved its case through PW-1 Sh.

Hari Om and who was the duly authorized person of the

respondent/plaintiff. The documents which are proved by the

respondent/plaintiff are as under:-

      Sl. No. No. of Exhibits    Details of Documents
      1.      Ex.PW1/A           Photocopy of certificate issued by RBI on
                                 19.03.2010
      2.        Ex.PW1/B         Plaint
      3.        Ex.PW1/C         Attested photocopy of Board Resolution
      4.        Ex.PW1/D         Photocopy of official Gazatted of India
      5.        Ex.PW1/E1        Loan Application
      6.        Ex.PW1/E2        Loan Agreement
      6.        Ex.PW1/E3        Promisory Note
      7.        Ex.PW1/F         Photocopy of deed of assignment dated
                                 30.04.2012
      8.        Ex.PW1/G1        Copy of legal notice dated 22.01.2014
      9.        Ex.PW1/G2        Postal receipt dated 23.01.2014

10. Ex.PW1/F (Colly) Copy of statement of Ledger Account and calculation of due amount along with Certificate under Section 2A of Banker Book Evidence Act and 65-B of Evidence Act

Appellant/defendant examined himself as DW-1.

8. Trial court has held that there was privity of contract of

the appellant/defendant with respondent/plaintiff as

respondent/plaintiff had succeeded in the debts of Royal Bank of

Scotland under the assignment deed Ex.PW1/F dated 30.4.2012. Trial

court has also held that the respondent/plaintiff was entitled to the suit

amount inasmuch as appellant/defendant admitted to his signatures on

the documents and the case of the appellant/defendant that the

documents were signed in blank could not accepted. Trial court has

also held that the amount due as was claimed in the suit stood proved

in terms of the statement of account which was certified under the

Bankers Books Evidence Act, 1891 as also under Section 65-B of the

Indian Evidence Act, 1872 and which statement of account was

proved as Ex.PW1/H (colly). Accordingly, trial court decreed the suit

against the appellant/defendant for recovery of moneys.

9. Learned counsel for the appellant/defendant firstly argued

that the trial court has wrongly decided issue no. 5 and which was that

the appellant/defendant had repaid the loan amount, inasmuch as, this

issue was deleted on an application filed by the appellant/defendant.

In my opinion, even if this technical error is there in the impugned

judgment that the trial court has decided an issue although it was

struck off, the same would however not mean that the findings on

other issues would not operate as against the appellant/defendant.

This first contention urged on behalf of the appellant/defendant is

therefore rejected.

10. The second argument which is urged on behalf of the

appellant/defendant was that the assignment deed proved as Ex.PW1/F

dated 30.4.2012 could not be looked into as it was not registered and

therefore the assignment deed was hit by Section 17(1) of the

Registration Act, 1908. However, in my opinion this argument is also

a frivolous argument because the requirement of registration of a

document under Section 17(1) of the Registration Act is if the

document pertains to an immovable property. The assignment deed in

question pertains to debts which are a movable property and therefore

Section 17(1) of the Registration Act does not apply. This argument

of the appellant/defendant is therefore rejected.

11. Finally it was argued by the appellant/defendant that the

statement of account proved in the suit through the witness of the

respondent/plaintiff could not be looked at as this witness had no

personal knowledge of the statement of account. Once again this

argument in my opinion is misconceived because the statement of

account was duly proved and which statement of account is certified

under the Bankers' Books Evidence Act and also under Section 65-B

of the Indian Evidence Act. Once the statement of accounts is certified

under the Bankers' Books Evidence Act, Courts have to presume that

the said statement of account is correct as per the original ledger

account maintained by the bank and therefore it cannot be argued by

the appellant/defendant that the statement of account cannot be looked

at allegedly on the ground that the witness had no personal knowledge

of the entries. There is no requirement of a witness to prove a

statement of account certified under the Bankers' Books Evidence Act

to have personal knowledge of the entries because proving of a

statement of account is a proof of the fact that the statement of account

is regularly maintained by the bank in the regular course of its

business. This argument of the appellant/defendant is also therefore

rejected.

12. It is therefore seen that appellant/defendant having

availed the loan amount way back in the year 2008 is misusing the

judicial process for frivolously denying the entitlement of the

respondent/plaintiff. Such dishonest people must be dealt with heavy

hands. Accordingly, this appeal being without merit is dismissed and

the appellant/defendant is visited with costs of Rs.25,000/- and which

costs shall be deposited by the appellant/defendant with the website

www.bharatkeveer.gov.in within a period of six weeks from today,

failing which Registry will list the matter in Court for appropriate

directions as against the appellant/defendant for recovery of costs.

NOVEMBER 10, 2017                           VALMIKI J. MEHTA, J
Ne/AK