M/S Icici Bank Limited v. Niharika Chhabra

judgment/order is set aside.

¶18The suit is decreed for the sum of Rs.7,34,704.27/- with interest @ 8% per annum from date of filing suit till date of payment. The payment shall be made by the Defendant within 12 weeks, failing which the Defendant would be liable to pay 12% interest per annum on the decretal amount, from the expiry of 12 weeks till the date of payment.

¶19The appeal is allowed in the above mentioned terms. Pending applications stand disposed of.

PRATHIBA M. SINGH, J. Judge MAY 23, 2018/dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 23rd May, 2018 + RFA 401/2015 & CM No.21791/2018 M/S ICICI BANK LIMITED ..... Appellant Through: Punit K. Bhalla, Advocate. versus NIHARIKA CHHABRA .....Respondent Through: None. CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (ORAL) 1. The present appeal arises out of the impugned judgment/order dated 18th February, 2015 by which the suit for recovery filed by the Appellant/Plaintiff bank (hereinafter, "Plaintiff bank") was dismissed. The judgement of the Trial Court dismissed the suit on the ground that the original loan recall notice dated 11th February, 2014 was not filed by the Bank. 2. In the present appeal, notice was issued on 25th May, 2015. Initially the Respondent/Defendant (hereinafter, "Defendant") was unserved as no process fee was filed. However, thereafter, the Defendant was unserved as she had left the place. Steps were taken for serving the Defendant through publication. Service was finally recorded as having been completed by the order of the Registrar dated 9th November, 2017. Brief Background 3. The Defendant (hereinafter, "Defendant") approached the Plaintiff bank for financing of the purchase of a vehicle under loan-cum- hypothecation scheme for a sum of Rs.7,25,000 /-. The Defendant agreed to repay the loan amount in 60 equal monthly instalments (hereinafter, "EMI") of Rs.15,870/- each. The loan was duly sanctioned and was disbursed on 15th April, 2013 to the dealer from whom the vehicle was to be purchased by the Defendant, after deducting usual processing fee and stamp duty charges. All the loan documents were executed by the Defendant. 4. Upon payment by the bank to the dealer, the Defendant secured a loan for the Vehicle Ford FIESTA bearing registration No. HR-72A-7180. Initially the Defendants made several payments but thereafter various cheques which were issued by the Defendant for payment of the instalments, were dishonoured/returned unpaid with the remarks "Refer to drawer/insufficient funds". The Plaintiff bank then filed a suit for recovery for the sum of Rs.7,34,704.27/- 5. In the suit, summons were issued on 20th May, 2014 and on the same date, the Trial Court appointed a representative of the Plaintiff bank as receiver with the direction to take possession of the vehicle from the Defendant along with an undertaking that the Receiver would keep it in safe custody and that the Plaintiff bank would not sell the vehicle without permission of the Court. Repeated attempts were made to serve the Defendant, and finally, the Defendant was served through publication. Meanwhile, as per the report dated 29th August, 2014, the vehicle was duly seized by the court Receiver and kept in the yard of ICICI Bank Ltd at Gurgaon. 6. The Defendant appeared through counsel before the Trial Court on multiple occasions as recorded in orders dated 20th September, 2014 7th November, 2014, 22nd November, 2014, 1st December, 2014, and 17th December, 2014. On 1st December, 2014, on the submission of the Defendant that there is possibility of settlement in the matter, it was referred to the National Lok Adalat, however on 6th December, 2014, the Judge, National Lok Adalat recorded that there was no settlement in the matter. On 17th December, 2014, on the submission made by the counsels for the parties, the Trial Court referred the matter to the Mediation Centre at the Tis Hazari Courts, but to no avail. The Defendant stopped appearing before the Trial Court thereafter and on 3rd February, 2015 the Defendant was proceeded ex-parte. The Plaintiff bank led evidence by way of affidavit of Sh. Laxman Gaur, the authorized representative as PW-1. The said PW-1 exhibited, along with his affidavit, the following documents: (i) Ex.PW-1/1 - Power of Attorney authorizing him to depose; (ii) Ex.PW-1/2 - the Original Credit Facility application form along with the terms and conditions of the loan; (iii) Ex.PW-1/3 - Unattested deed of Hypothecation; (iv) Ex. PW-1/4 - I