Icici Bank Ltd v. Shyam Sunder Sharma

judgment/order is set aside.

¶22The suit is decreed for the sum of Rs.56,400/- with interest @ 8% per annum from 30th September 2011 till date. 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.

¶23The appeal is allowed in the above mentioned terms. Pending application stands 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 662/2015 & CM No.21796/2018 M/S ICICI BANK LIMITED ..... Appellant Through: Punit K. Bhalla, Advocate. versus SHYAM SUNDER SHARMA .....Respondent Through: CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (ORAL) 1. The present appeal arises out of the impugned judgment/order dated 3rd June, 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 26th April, 2011 was not filed by the Bank. 2. In the present appeal, notice was issued on 7th October, 2015. Thereafter, the appeal was admitted vide order dated 17th February, 2016. Initially, the Respondent/Defendant (hereinafter, "Defendant"), remained unserved due the process fee not being filed, but thereafter it was because there was "no such person" at the last known address. Thus, steps were taken to serve the Defendant through publication. Service was finally recorded as having been completed as per the order of the Registrar dated 9th November, 2017. Brief Background 3. The Defendant approached the Plaintiff bank for financing of the purchase of a vehicle under loan-cum-hypothecation scheme for a sum of Rs.3,05,000/-. The Defendant agreed to repay the loan amount in 58 equal monthly instalments (hereinafter, "EMI") of Rs.7,188/-. The loan was duly sanctioned and was disbursed on 17th February, 2007 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 SANTRO/XL bearing registration No. DL2CAD7003. 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. 3,18,124.16/-. 5. In the suit, summons were issued on 5th July, 2011 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. On 19th April, 2012 the Defendant appeared before the court in person. He filed a memo dated 2nd April, 2012 duly signed by him to the following effect: "It is submitted as under:- 1. That the above noted case is pending disposal before this Hon"ble court, and is fixed for 15.5.2012. 2. That as per orders of the Hon"ble Court, the receiver Sh. Praveen Yadav has taken the vehicle in possession. The orders were passes on 22.9.2012 by the Hon"ble Court. 3. That the applicant is regd. owner of the vehicle. He has settled the matter with the plaintiff/bank. He paid one instalment on 25.5.2011 and the applicant/defendant has to pay a sum of Rs.1,65,000/-. The applicant wants to pay the same in instalments. The case is likely to be compromised. His father died and could not pay the instalments. Now he is ready to pay the amount. It is therefore prayed that the vehicle may be returned to the applicant and he be allowed to pay the amount in instalments after settlement/compromise or pass any other order which the Hon"ble Court may deem fit and proper" 6. He thus made a statement that he is ready to settle the dispute with the Plaintiff bank and is ready to pay the amount in instalments. Accordingly, the Court directed that the matter be placed before the Mediation Cell to settle the matter. However, mediation failed between the parties. Thereafter, the Defendant stopped appearing before the court. The Plaintiff, on 26th September, 2012, filed an application under Order XXXIX Rule 6 CPC seeking leave to sell the