ICICI BANK LTD Vs. ASHOK SHARMA

JUDGEMENT

(1.) A suit for recovery was filed by the Appellant/Plaintiff - ICICI Bank Ltd. (hereinafter "Plaintiff Bank") for a sum of Rs.5, 96, 913/- against the Respondent/Defendant, Mr. Ashok Kumar (hereinafter, "Defendant") under Order XXXVII CPC. The said suit was dismissed vide judgment dated 7th May, 2015 against which the present Appeal has been filed. Notice was issued in the Appeal on 25th August 2015. Initially the Defendants were unserved as no process fee was filed. However, thereafter the Defendants were unserved as they had left the place. Steps were then taken for serving the Defendants through publication. Service was finally recorded as having been completed by the order of the Registrar dated 12th February 2018.

(2.) The case in brief of the Plaintiff Bank is that the Defendant is proprietor of M/s. Fibro Insulation. He approached the Plaintiff Bank for grant of overdraft credit facility (hereinafter, "OD facility") in August, 2007 to meet his normal business requirements. The said OD facility to the tune of Rs.5 Lakhs was sanctioned by the Plaintiff Bank. The Defendant agreed to repay the same in terms of the overdraft facility agreement along with interest "@ 1.75% per annum over/below the sum of the ICICI Bank Benchmark Advance Rate and the Cash Credit Risk Premium prevailing on each day that such OD Facility remains outstanding (the "Applicable Rate")". Apart from the said interest, the interest tax and other statutory levies, if any, were also to be paid by the Defendant. The Defendant maintained a current account with the Plaintiff Bank. Over a period it was noticed that the Defendant did not maintain the financial discipline required for availing of the OD facility and accordingly, the Plaintiff Bank called upon the Defendant to exit from the said facility. The Defendant also defaulted from repayment for several months and this resulted in the Plaintiff Bank recalling the OD facility by sending over draft recall notice dated 9th December, 2013. The Defendant did not reply to the said notice. As per the Plaintiff Bank, the Defendant was liable to pay a sum of Rs.5, 96, 913/- as on 1st December, 2013. The subject suit was then filed praying for recovery of the outstanding sum along with interest @ 18% per annum from the date of filing of the suit till its realisation.

(3.) On 6th June, 2014, upon hearing learned counsel for the Plaintiff Bank the suit was treated as an ordinary suit for recovery instead of the suit under Order XXXVII CPC. Upon summons being issued, the same were received back with the report that the Defendant had left the given address. Since the Trial Court found that it was not possible to serve the Defendant through ordinary process, service by publication was permitted. On 23rd January, 2015, since none appeared for the Defendant, he was proceeded ex-parte. The Plaintiff filed evidence of Mr. Bhaskar Mishra, Authorized Representative of the Plaintiff Bank as PW-1. The following documents were exhibited by the said witness.