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2016 Supreme(Del) 3472
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
ICICI BANK LTD. – Petitioner
Versus
BALJEET SINGH & ANOTHER – Respondents
CM (M) No. 530 of 2016
Decided On : 15-09-2016
For the Petitioner: Mr. Punil K. Bhalla.
Adherence to the procedure stated in the Civil Procedure Code is essential, and the trial court's inquiry into discrepancies mentioned in the documents was deemed illegal and irregular.
Headnote:
Loan Recall Notice - Recovery Suit - Order 40 Rule 1 CPC - [Order 40 Rule 1 CPC] - The court set aside the impugned order and directed the trial court to issue summons to the defendants and proceed with the adjudication of the suit in accordance with the procedure stated in Civil Procedure Code. The court also appointed a receiver to take possession of the vehicle and directed the receiver to file a report with the trial court within one week of taking possession of the vehicle.
Fact of the Case:
The petitioner filed a suit for recovery of a loan amount. The trial court, instead of issuing summons to the respondent, went into an inquiry about various averments made in the plaint on merits.
Finding of the Court:
The impugned order was set aside, and summons were directed to be issued to the defendants. A receiver was appointed to take possession of the vehicle.
Issues: The trial court's jurisdiction and its inquiry into various discrepancies mentioned in the documents.
Ratio Decidendi: The trial court's inquiry into the discrepancies mentioned in the documents was deemed illegal and irregular. The court emphasized the need to adhere to the procedure stated in the Civil Procedure Code.
Final Decision: The impugned order was set aside, and the trial court was directed to issue summons to the defendants and proceed with the adjudication of the suit in accordance with the procedure stated in Civil Procedure Code. A receiver was appointed to take possession of the vehicle.
JAYANT NATH, J.
1. By the present petition, the petitioner seeks to impugn the order dated 29.04.2016. The petitioner filed a suit for recovery of Rs. 3,42,724.60/-. It is urged that the respondent had approached the petitioner for grant of a loan of Rs. 8,90,000/- for purchase of vehicle namely “TOYOTA INNOVA” under Loan-cum-Hypothecation scheme. The respondent executed Credit Facility application, deed of hypothecation and irrevocable Power of Attorney in favour of petitioner bank. The respondent executed various documents and agreed to pay the loan in 36 equated monthly instalments. The petitioner sanctioned a loan of Rs. 8,90,000/- to the dealer, GALAXY AUTOMOBILES PVT. LTD.
2. Since there was default in repayment of the monthly instalment, the petitioner claims to have, in terms of the loan document, recalled the loan facility by sending a recall notice dated 20.01.2016. Thereafter, the present suit has been filed.
3. When the suit came up for hearing, the trial court instead of issuing summons to the respondent passed the following orders:-
“In the present case, it is evident that the dispatch proof/tracker’s report of the loan recall notice thereby foreclosing the account of the defendant has not been placed on record and in fact, what is present on record is the photocopy of LRN Bulk Register which is an internal register of the plaintiff bank and not the dispatch proof of the Postal and Telegraph Department or receipts thereof as claimed in the plaint. I may observe that it is by way of this notice that according to the plaintiff, the defendant was allegedly informed about the recall of the entire loan amount and entire remaining amount having fallen due so as to create a cause of action for filing the suit for the entire remaining outstanding loan amount including the future instalments. Any failure to inform and convey to the defendant, the recall of the loan facility and the total outstanding dues thereafter, the cause of action for filing the suit for the entire remaining loan amount, does not arise as the same would be restricted only to the outstanding dues as on date. In the present case the loan recall notice shows that as on the date, the defaulted amount is only 87,420/-which is below the Pecuniary Jurisdiction of this court. It is therefore necessary for the plaintiff to place before me the material to show the communication of the foreclosure notice to the defendant i.e. the dispatch/service proof/tracker’s report for which the Ld. Counsel seeks time.
Further, there are also certain glaring/visible discrepancies in the documents qua the pleadings which I note as under:
1. Why is there a difference in the outstanding amount as reflected in the plaint, the loan recall notice and the Statement of Account [I note that as per the plaint (para 9) a principal amount of Rs.3,03,581.40p is due and after adding the late payment penalties, cheque bouncing charges, interest for the month and interest on the instalments a total sum of Rs.3,42,724.60p is due; as per the loan recall notice on account of delay the arrears of Rs.87,420/- is due from the defendant whereas after the recall of the loan/credit facility, the amount dues is Rs.3,64,831/- as on 14.01.2016 and as per the Statement of Account a sum of Rs.3,60,104.64p is due].
2. Under what clause/law the overdue has been charged multiple times as reflected in the Statement of Account?
3. Whether the instalments as reflected in the Statement of Account include the interest? If yes, then under what clause/law the interest has been imposed on the instalments which were to mature in future and under what clause.
4. Information with regard to the total number of instalments/total amount deposited till the date of institution of the suit be also placed on record.
5. Whether the account of the defendant has been declared NPA (Non Performing Asset), if yes, on what day and whether any proceedings under the SARFAESI Act initiated thereafter?”
4. A perusal of the impugned ord
