ICICI BANK LTD. Vs. BIMLA DEVI JAJODIA

JUDGEMENT

(1.) Heard Mr. GN Shahewalla, learned senior counsel, assisted by Mr. R. De, learned counsel, appearing on behalf of the petitioner. Also heard Mr. AK Purakayastha, learned counsel, appearing for the respondent. Started with enthusiasm, grit and resolute with firmness in its belief that an execution process initiated for execution of a lawfully passed decree by the competent civil court, would take the petitioner-judgment debtor without any bumpy ride driving within the arena of the Executing Court without even satisfying the decree had backfired by driving the petitioner into a well of unfathomable depth and in order to rescue the said petitioner from the said well this is the effort. In order to explain such comparison, this court has to take note of the facts and figures on record in the form of petition supported by affidavit and the affidavit-in-opposition by the respondent in this delay condonation petition filed by petitioner for condonation of 1053 days delay in filing the connected Second Appeal against the judgment and decree dated 28.05.2011 passed in T.A.No. 170/2010 learned Civil Judge No. 2, Kamrup (Metro), Guwahati.

(2.) The present petitioner, ICICI Bank Ltd. who is the defendant in Title Suit No. 280/2006 in the court of the learned Munsiff No. 3, Kamrup (Metro), Guwahati, was filed by the respondent, as the plaintiff. The respondent is a business lady and requires vehicles to carry goods. Accordingly she intended to purchase a vehicle and the present petitioner through its Branch at Bhangagarh, G.S. Road, Guwahati extended a loan of Rs. 2,70,000.00 to the respondent to purchase a vehicle, which was purchased on 26.2.2004. As per the terms and conditions of the Hire Purchase Scheme, the respondent was supposed to repay the loan in 23 equal monthly installments of Rs. 13,102.00. The respondent handed over 23 numbers of postdated cheques to the petitioner, which were drawn on Standard Chartered Grind lays Bank. Some of the cheques were utilized by the petitioner Bank. However, the respondent came to know that the Bank did not encash the cheques pertaining to the installment Nos. 10, 11 and 12 because of the fact that the name of the Standard Chartered Grindlays Bank was changed to Standard Chartered Bank. The petitioner Bank asked the respondent to issue fresh cheques for installment Nos. 10, 11 and 12. On insistence, the respondent issued three numbers of cheques afresh and instructed the petitioner Bank to encash the remaining cheques. However, the petitioner Bank did not encash the cheques for installment Nos. 13, 14 and 15 and returned the cheques to the respondent. The respondent thereafter issued three cheques afresh. Installment Nos 16 and 17 fell due and the respondent gave two numbers of fresh cheques against installment Nos. 16 and 17.

(3.) Likewise, for the installment Nos. 18 and 19, the same episode repeated. The petitioner bank did not come forward as per the practice followed earlier to ask her to issue fresh cheques. The petitioner bank served a notice on the respondent demanding payment of Rs. 39,306.00 being the total dues against installment Nos. 20, 21, 22 and 23. The petitioner bank on 30.1.2006 repossessed the vehicle of the respondent and owing to such repossession by the bank she had to hire vehicles to run her business for which the petitioner sustained loss at the rate of Rs. 1,000.00 per day. Pleading so, the respondent filed a suit praying inter alia for mandatory injunction directing the petitioner bank to return her vehicle and also to return 4 numbers of unused cheques which she handed over to the petitioner as against payment of installment Nos. 20 to 23. It was also prayed for a declaration that the termination of her agreement with the petitioner bank as illegal and void.