Delhi High Court
State Bank Of India vs Rajesh Singh on 16 November, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA Nos. 914/2016 & 915/2016
% 16th November 2017
+ RFA No. 914/2016
STATE BANK OF INDIA ..... Appellant
Through: None.
versus
RAJESH SINGH ..... Respondent
Through: None.
+ RFA No. 915/2016
STATE BANK OF INDIA ..... Appellant
Through: None.
versus
PAWAN KUMAR ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM Appl. No. 43750/2016 (delay of 230 days) in RFA No. 914/2016
Respondent has not appeared in spite of service by publication.
There is therefore no opposition to this application and which is
allowed and delay of 230 days in filing the appeal is condoned.
Respondent is proceeded ex-parte. It is noted that
respondent/defendant was also ex-parte before the trial court.
CM stands disposed of.
RFA No. 914/2016
1. This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908 (CPC) by the appellant/plaintiff/bank
impugning the judgment of the trial court dated 7.12.2015 by which
the trial court has dismissed the suit filed by the appellant/plaintiff
bank for recovery of Rs.9,93,685/-. The suit has been dismissed
although respondent/defendant proceeded was ex-parte, and therefore,
respondent/defendant had not filed written statement or led evidence.
The suit has been dismissed on a single ground that statement of
account filed by the appellant/plaintiff/bank as Ex.PW1/7 was not
certified as per Section 65-B of the Indian Evidence Act, 1872.
2. The facts of the case are that the respondent/defendant
was granted by the appellant/plaintiff/bank a loan for purchasing a
vehicle namely "Mahindra Xylo" bearing registration no.
DL1YC8198. A loan of Rs.7,25,000/- was sanctioned in terms of the
loan agreement dated 24.1.2012 and which was to be repaid in 84
equated monthly installments of Rs.12,798/- each.
Respondent/defendant has however failed to pay the loan amount and
regularly monthly installments, and therefore the subject suit was filed
after serving a legal notice dated 26.11.2014.
3. Para 7 of the impugned judgment which refers to various
documents being proved by the appellant/plaintiff/bank reads as
under:-
"7. In order to prove its case, plaintiff has examined Sh. A.K.
Chauhan, as PW-1, who tendered his evidence by way of affidavit and
proved on record his affidavit Ex.PW-1/A. PW-1 reiterated the averment
made in the plaint in his examination in chief. PW-1 further exhibited the
documents, i.e. true copy of State Bank of India Notification dated 27-3-
1987 exhibited as exhibit PW1/1 in his affidavit (the same is de-exhibited
and marked as mark A being the photocopy). Loan application form dated
11-2-2012 as Ex.PW 1/2, the appraisal of car loan dated 11-2-12 as
Ex.PW1/3, Arrangement letter dated 11-2-2012 as Ex.PW1/4, Loan cum
hypothecation agreement dated 11-2-2012 as Ex.PW1/5, invoice of the car
and the registration certificate & other documents as Ex.PW1/6 (Colly),
true copy of the statement of account as Ex.PW1/7, Legal notice dated 26-
11-2014 along with postal receipts as Ex.PW1/8 and postal envelope
containing the legal notice dated 26-11-2014 as Ex.PW1/9."
4. As already stated above, the suit has been dismissed by
holding that the statement of account Ex.PW1/7 is not certified as
required under Section 65-B of the Indian Evidence Act.
5. In my opinion, trial court has erred in dismissing the suit
on the ground of non-certification of the statement of account under
Section 65-B of the Indian Evidence Act inasmuch as an objection as
to mode of proof of a document, unless the same is taken, the same is
deemed to be waived in view of the judgment of the Supreme Court in
the case of R.V.E. Venkatachala Gounder Vs. Arulmigu
Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.
The respondent/defendant being ex-parte, the deposition of the
appellant/plaintiff's witness was not challenged as regards the mode of
proof of the statement of account as Ex.PW1/7. Once that is so, trial
court could not have held that the statement of account could not be
looked into because of Section 65-B of the Indian Evidence Act as
mode of proof of statement of account was not as per law viz. Section
65-B of the Indian Evidence Act .
6. In view of the above discussion, this appeal is allowed.
The impugned judgment of the trial court dated 7.12.2015 is set aside.
Suit of the appellant/plaintiff/bank is decreed for a sum of
Rs.9,93,685/- along with the pendente lite and future interest at 9% per
annum simple. Appellant/plaintiff will also be entitled to costs of the
suit. Decree sheet be prepared.
RFA No. 915/2016 & CM No. 43761/2016 (delay of 230 days)
7. This appeal will stand allowed by adopting the reasoning
given for allowing RFA No. 914/2016 and which judgment will apply
mutatis mutandis with respect to facts of the present case where the
loan was a loan of Rs. 7 lacs in terms of the loan agreement dated
24.1.2012 for purchase of a vehicle namely "Tata Indigo Manza"
bearing registration no. DL4CAL3764 and 84 equated monthly
installments were of Rs.12,357/- each. Suit is therefore decreed for a
sum of Rs.9,94,007.97 along with pendente lite and future interest at
9% per annum simple. Appellant/plaintiff will also be entitled to costs
of the suit. Decree sheet be prepared.
NOVEMBER 16, 2017/ib VALMIKI J. MEHTA, J
