ORDER

% 15.01.2024 [Physical Hearing/Hybrid Hearing (as per request)] CM Appl.2431/2024

1. Allowed, subject to the appellant filing legible copies of the annexures, at least three (3) days before the next date of hearing.

RFA(COMM) 10/2024 & CM Appls.2432-33/2024

2. This appeal is directed against the judgment and decree dated 04.07.2023 passed by the learned District Judge (Commercial)-02, Central District, Tis Hazari Courts, Delhi.

3. Via the impugned judgment and decree, the respondent’s/plaintiff’s suit has been decreed for Rs. 23,74,848/- along with interest at the rate of 6% per annum from the date of filing of the suit till realization of the sum from the appellant/defendant/Bank.

4. The central issue that arises for consideration in the appeal is: whether the learned District Judge is right in concluding that the appellant/defendant/bank erred in calculating processing charges at the rate RFA(COMM) 10/2024 1/3 of 1.2% and imposition of service tax on the sanctioned loan amount.

4.1 It is not in dispute that the appellant/defendant/bank had sanctioned loan amounting to Rs. 20 Crores. It is also not in dispute that the appellant/defendant/bank had disbursed only Rs. 2,64,00,000/-

5. The learned District Judge has concluded that the processing charge at the rate of 1.20% and service charge at the rate of 14% could have been calculated only on the disbursed amount i.e., Rs. 2,64,00,000/-.

6. It is the contention of the learned counsel for the appellant/defendant/bank that the terms and conditions agreed to between the parties envisaged the calculation of processing charge and imposition of service charge on the total sanctioned amount and therefore, there is an error in the impugned judgment.

6.1 Besides this, it has been pointed out that because the mortgage that had to be created vis.-a-vis. collateral security was not perfected, the amount disbursed was Rs. 2,64,00,000/- as opposed to Rs. 3,67,00,000/- sought by the respondent/plaintiff.

6.2 In support of this plea, our attention has been drawn by the learned counsel for the appellant/defendant/bank to a communication dated 28.10.2015 addressed on behalf of the respondent/plaintiff to the predecessor-in-interest of the appellant/defendant/bank. Since the said communication is brief, the relevant part is extracted hereafter:

“28.10.2015 To Corporation Bank Vaishali Branch Ghaziabad, Uttar Pradesh RFA(COMM) 10/2024 2/3 Subject: Regarding disbursement of Term Loan of M/s Angel Promotors Pvt. Ltd. Sir/Mam, We have applied to UPSICD for creating charge on term loan of Rs. 20 crores. The process of creating charge will take time; hence we request you to kindly disburse Rs. 3,67 crores for the time being. We shall be highly grateful to You.

Sd/- Authorised Signatory.” [Emphasis is ours]

7. According to us, the matter requires examination.

8. Issue notice to the respondent/plaintiff via all permissible modes including email.

9. Meanwhile, there shall be a stay on the operation of the impugned judgment and decree dated 04.07.2023.

10. List the matter on 03.05.2024.

11. Parties will act based on the digitally signed copy of the order.

RAJIV SHAKDHER, J AMIT BANSAL, J JANUARY 15, 2024/pmc Click here to check corrigendum, if any 3/3 RFA(COMM) 10/2024