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2024 Supreme(Del) 636
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, Tara Vitasta Ganju, JJ.
Kulbhushan Sachdev - Appellant
Versus
Icici Bank Limited & Anr. - Respondents
RFA(COMM) 288 of 2023, CM APPL.63407 of 2023 CM APPL. 63440 of 2023
Decided On : 19-03-2024
Mr. Ashwani Garg and Mr. Sameer Garg, Advocates, for the Petitioner.
Dr. Hemant Gupta, Mr. Shivang Jain,Ms. Payal Gupta, Ms. NitikaaGupthaand Ms. Alpana Singh, Advocates for R-1.
IMPORTANT POINT
The court emphasized the importance of enforcing security interest and ruled that the Bank was entitled to claim the outstanding amount without recovering the vehicle.
Headnote:
Limitation - Recovery of Loan - Code of Civil Procedure, 1908 - Insolvency & Bankruptcy Code, 2016 - [CS(COMM) No.2157/2021] - [Code of Civil Procedure, 1908, Insolvency & Bankruptcy Code, 2016] - The court discussed the limitation period for filing the suit, the interpretation of the Loan Recall Notice, and the appellant's liability as a co-applicant. The court also emphasized the importance of enforcing security interest and dismissed the appeal.
Fact of the Case:
The Bank filed a suit seeking recovery of a loan for a vehicle. The appellant contested the suit on grounds of limitation, liability, and recovery of the vehicle.
Finding of the Court:
The court found that the suit was not barred by limitation and the appellant was liable as a co-applicant. It also ruled that the Bank was entitled to claim the outstanding amount and was not required to recover the vehicle before proceeding with the claim.
Issues: Limitation, Liability of the appellant, Recovery of the vehicle
Ratio Decidendi: The suit was within limitation as per the Supreme Court order. The appellant was a co-applicant and liable for the loan. The Bank was entitled to claim the outstanding amount without recovering the vehicle.
Final Decision: The appeal was dismissed.
JUDGMENT
Vibhu Bakhru, J.
1. The appellant (defendant no.2 in the suit) has filed the present appeal impugning the judgment and decree dated 04.08.2023 (hereafter the impugned judgment) delivered by the learned Commercial Court decreeing an amount of Rs.3,44,854/- along with simple interest at the rate of 9% per annum from the date of filing of the suit (that is, from 03.07.2021) till the realization of the said amount. Additionally, the learned Commercial Court had also awarded costs in favour of respondent no.1 (plaintiff in the suit and hereafter referred to as the Bank).
2. The Bank had instituted the said suit [CS(COMM) No.2157/2021] seeking recovery of Rs.3,44,854/- along with pendente lite and future interest at the rate of 24% per annum. The Bank claimed that respondent no.2 (defendant no.1 in the suit and hereafter the Company) had approached it for grant of a loan of a sum of Rs.6,23,000/- for purchasing a vehicle - Maruti Swift Dzire VDI. It claimed that the Company had executed a Credit Facility Application as well as Car Loan Agreement for availing the said loan. The said loan was granted and was secured by the vehicle purchased by the Company. The said loan along with interest was required to be repaid in 68 (sixty-eight) equated monthly installments (EMIs) of Rs.13,008/- each with one EMI to be paid in advance.
3. The Bank did not take any steps for pre-institution mediation and filed the suit along with an urgent application for appointment of a receiver ex-parte. Although, the said application was allowed, the Bank did not recover the vehicle. The appellant was not arrayed as a defendant in the suit as originally filed. However, the Bank filed an application under Order I Rule 10 of the Code of Civil Procedure, 1908 seeking to implead the appellant as defendant no.2 in the suit on the ground that he was a co-applicant along with the Company for availing the auto loan. The learned Commercial Court issued notice of the impleadment application on 12.07.2022. The said application for impleadment was not contested and accordingly, it was allowed by an order dated 02.12.2022. By the said order, the appellant was also granted time to file his Written Statement. Thereafter, the amended memo of parties filed by the Bank was also taken on record. However, neither the appellant nor the Company filed their written statements and were proceeded against ex parte. Absent any contest, the learned Commercial Court accepted the Bank's claim and passed the impugned judgment and decree.
SUBMISSIONS
4. The learned counsel appearing for the appellant has assailed the impugned judgment on several fronts. First, he submitted that ICICI Bank could not proceed against the appellant as it had taken no steps to recover the vehicle from the Company. He submitted that the proceedings under the Insolvency & Bankruptcy Code, 2016 in respect of the company had been initiated before the National Company Law Tribunal (NCLT) and an Interim Resolution Professional (IRP) had been appointed. Therefore, the Bank was required to make its claim before the IRP or the learned NCLT. Second, he submitted that the appellant was a guarantor and was not responsible for the liability of the Company, which is under the CIRP (Corporate Insolvency Resolution Process). He submitted that the statement of accounts filed by the Bank indicated that it had already recovered a sum of Rs.7,48,583/-. The said account also indicated that the total recoverable amount was Rs.8,52,350/- and therefore at best the Bank could recover the remaining amount after adjustment of the amount of Rs.7,48,583/-. Lastly, he submitted that the suit against the appellant was barred by limitation. He submitted that the Company had defaulted in payment of EMI on 03.04.2019, as stated in the plaint, therefore, the cause of action for filing the suit arose on the said date. However, the application for impleading the appellant was moved before the learned Commercial Court on 12.07.2022, which was bey
