* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 19.11.2015 % Judgment delivered on: 17.12.2015 + RFA 56/2014 KOTAK MAHINDRA BANK LTD. ..... Appellant Versus ANUJ KUMAR TYAGI ..... Respondent Advocates who appeared in this case:

For the Petitioner: Ms P. Rungta and Mr. Prashant Singh, Advocates.

For the Respondent:

CORAM:

HON'BLE MR. JUSTICE RAJIV SHAKDHER RAJIV SHAKDHER, J

1 This is an appeal preferred against the judgment and decree dated 16.09.2013, passed by the learned Additional District Judge (In short the ADJ). By virtue of the impugned judgement, the appellant‟s suit for recovery has been dismissed on the sole ground that it is barred by limitation.

1.1 The learned ADJ has come to this conclusion based on a perusal of the statement of accounts (Ex. PW1/9) filed by the appellant, which is dated 31.10.2009. As per the said statement of account, the last transaction with the respondent took place on 11.08.2008. The learned ADJ thus, concluded, that since, the suit was filed on 20.07.2012, it was “hopelessly” barred by limitation.

1.2 Since the respondent, during the course of the proceedings, chose not to appear before the trial court, he was proceeded ex parte, after the appellant‟s witness had been partially cross-examined.

1.3 A perusal of the impugned judgement shows that the trial court has taken recourse to Section 3 of the Limitation Act, 1963 (in short the 1963 Act) in deciding the issue pertaining to limitation.

2. The appellant being aggrieved, has approached this court by way of the instant appeal.

3. In order to adjudicate upon the appeal, the following brief facts are required to be noticed.

3.1 The respondent had approached ICICI Bank Ltd. in July, 2007, for grant of credit facility to purchase a TATA INDICA Vehicle. The respondent‟s request was considered and, accordingly, on 13.07.2007, he was sanctioned a loan in the sum of Rs. 3.28 lacs. The respondent, in this behalf, executed a credit facility application form, on even date i.e.

13.07.2007 (hereafter referred to as the loan agreement).

3.2 As per the loan agreement, the respondent was required to repay the sum borrowed, in 59 Equated Monthly Instalments (EMIs), amounting to Rs. 7544/- each. The first due date, as stipulated in the loan agreement, was

10.08.2007, with the date of maturity indicated as 10.06.2012.

3.3 The repayment clause contained in the loan agreement provided that the due date would be the tenth day of each successive month. The respondent also paid one instalment as an advance, which also amounted to a sum of Rs. 7544/-. Additional security in the form of four post dated cheques, was also given. The respondent also hypothecated the subject vehicle in favour of ICICI Bank Ltd., by executing an unattested deed of hypothecation. Furthermore, an irrevocable power of attorney was also executed in favour of ICICI Bank Ltd.

3.4 It appears that the loan account became irregular, as the respondent failed to adhere to the financial discipline in the payment of the EMIs. Since, the respondent, failed to regularize the account, a loan recall-cum- demand notice dated 26.06.2012 was issued to him, which was posted on 29.06.2012. By virtue of the said recall-cum-demand notice, the loan agreement was terminated and the respondent was called upon to repay the entire outstanding amount, and handover possession of the subject vehicle.

3.5 As, the respondent, failed to oblige, a suit for recovery was instituted against him. It is pertinent to note, that in the interregnum, ICICI Bank Ltd. had assigned the loan to an entity by the name of Asset Reconstruction Company (India) Ltd., which in turn, assigned the loan account, pertaining to the respondent vide assignment deed dated 31.12.2009, to the appellant herein.

3.6 It is, therefore, in this background that the appellant instituted the instant suit against the respondent, on 20.07.2012. It appears, that the respondent, despite being served in the suit, initially did not file his written statement, which