Final Order 1

Order Details: Ex-parte Judgement
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MHCC010004982020
Presented on :13012020
Registered on : 25022020
Decided on : 25032021
Duration : Y1 M2 D12
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO.403 OF 2020
Bank of India
A body corporate constituted under the ]
provisions of Banking Companies ]
(Acquisition & Transfer of Undertakings) ]
Act, V of 1970, having its Head Office ]
at Star House, C5,"G" Block, BandraKurla ]
Complex, Bandra (East), Mumbai400 051 ]
and having its one of the Branch office at ]
1st Floor, Tirthankar Apartment, 294 ]
S.K. Bole Marg, Dadar (W), Mumbai400 028; ]
known as “Dadar West Branch” through ]
their Authorized Officer/Chief Manager, ]
Mr. R.D. Kujur, Age:51 years ]...Plaintiff
V/s
1. M/s. Das Caterers ]
A Proprietorship Firm, Indian Inhabitant of, ]
Having its Office address at: Room No.2, ]
Baba Singh Chawl, Vasari Hill, S.V.Road, ]
Goregaon (West), Mumbai400 062 ]
2. Mr. Shivram Kamal Das ]
Age:33 years ]
A Proprietor of M/s. Das Caterers ]
An adult, Indian Inhabitant of, having its office ]
address at:Room No.2, Baba Singh Chawl, ]
Vasari Hill, S.V. Road, Goregaon (West), ]
Mumbai400 062; and having his Residential ]
address at: 407, 'A' Wing, Aradhana Shopping ]
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Centre, Zakeria Road, Malad (West), ]
Mumbai400064; and Having also another ]
address at: S/o Mr. Kamal Das, at: Ward 13, ]
Gram Rajuahi, Post Matras, Matras, Madhubani]
Bihar847 402 ]..Defendants
APPEARANCE:
Ld. Adv.Priya Nigwekar for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 25th March, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks recovery of amount from
defendants for Rs.9,55,203.55 (Rupees Nine Lakhs Fifty Five Thousand
Two Hundred and Three and Fifty Five Paise Only) and further interest
at the rate of 10.85% p.a. plus Penal Interest @ 2.00% till final payment
and realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The defendant No.1 is a Proprietorship Firm in Catering
business. The defendant No.1 through defendant No.2 had applied for
Cash Credit Facility with the plaintiff against hypothecation of book
debts of Rs.8,00,000/ (Rupees Eight Lakhs Only) for business purpose.
The cash credit facility was sanctioned by the plaintiff for Rs.8,00,000/
against hypothecation of book debts vide Sanction Letter bearing
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No.DDW/ADV/SRM/201617 dated 06.08.2016 to the defendants. The
cash credit facility was recorded in Account No.001530110000083. The
defendants had executed the following documents:
(a) [L434] Demand Promissory Note dated 10.08.2016 of
Rs.8,00,000/.
(b) [L435] Bearer Letter dated 10.08.2016 of Rs.8,00,000/
(c) [L515] Non Relation with any Director of Bank dated
10.08.2016
(d) [L516] Multipurpose Document dated 10.08.2016 of
Rs.8,00,000/
(e) [IFD010] Hypothecation Cum Loan Agreement dated
10.08.2016 of Rs.8,00,000/
3. The plaintiff had disbursed the cash credit facility and the
same was utilized by the defendants. The defendants had failed and
neglected to regularize the account. The account of the defendants is
out of order since long. The account of the defendants was declared by
the plaintiff bank as Non Performing Asset (NPA) on 30.06.2017. The
plaintiff had issued notice to the defendants on 16.10.2017. Inspite of
the notice, the amount is not paid by defendants. The plaintiff again
had issued notice through its Advocate on 25.06.2019.
The plaintiff accordingly had prayed for recovery of
amount of Rs.9,55,203.55 and further interest at the rate of 10.85%
p.a. plus Penal Interest @ 2.00% till final payment and realization.
4. The defendants had not appeared in the suit. The suit
proceeded exparte against defendants.
5. The following points arise for my determination with my
findings thereon and the reasons to follow :
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SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of amount of Rs.9,55,203.55
and further interest at the rate of
10.85% p.a. plus Penal Interest @ 2.00%
till final payment and realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
6. Heard learned Advocate Priya Nigwekar for the plaintiff.
7. The plaintiff in support of its case had examined PW No.1
Rashmi Dinesh Kujur at Exh.03. The witness for the plaintiff had
reiterated all the contentions raised by the plaintiff in the plaint. The
plaintiff had relied upon following documents (Exh.04):
Sr.No. Date Particulars Exh.
1 Authority Letter 5
2 01.08.2016 Application 6 colly
3 06.08.2016 Sanction Letter bearing
Ref.No.DDW/ADV/SRM/201617
7 colly
4 10.08.2016 [L434] Demand Promissory Note of
Rs.8,00,000/
8
5 10.08.2016 [L435]Bearer Letter of
Rs.8,00,000/
9
6 10.08.2016 [L515]Non Relation with any
Director of bank
10
colly
7 10.08.2016 [L516] Multipurpose Document of
Rs.8,00,000/
11
colly
8 10.08.2016 [IFD010]Hypothecation Cum Loan
Agreement of Rs.8,00,000/
12
colly
9 16.10.2017 Notice u/s.13(2) of Sarfaesi
Act,2002 of defendants Nos. 1 & 2
13
colly
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10 25.06.2019 Office copy of Advocate Notice 14
colly
11 Statement of Account alongwith I.T.
Certificate
15
colly
12 27.06.2019 Particulars of Claim 16
8. The witness for the plaintiff Rashmi Dinesh Kujur
specifically stated that on 01.08.2016 the defendant No.1 through
defendant No.2 had applied for availing cash credit facility against
hypothecation of book debts for Rs.8,00,000/. The facility was
sanctioned on 06.08.2016 by the plaintiff. The amount was credited to
the account of defendant bearing No.001530110000083. The
defendants had executed the following documents:
(a) [L434] Demand Promissory Note dated 10.08.2016 of
Rs.8,00,000/ (Exh.08)
(b) [L435] Bearer Letter dated 10.08.2016 of Rs.8,00,000/
(Exh.09)
(c) [L515] Non Relation with any Director of Bank dated
10.08.2016 [Exh.10 colly]
(d) [L516] Multipurpose Document dated 10.08.2016 of
Rs.8,00,000/ [Exh.11 colly]
(e) [IFD010] Hypothecation Cum Loan Agreement dated
10.08.2016 of Rs.8,00,000/ [Exh.12 colly]
9. The defendants were irregular in repayment of loan
amount. It is contended that in respect of receiving the notice, the
amount is not repaid by the defendants. The plaintiff bank had issued
letters and further had issued notice to the defendants. The evidence of
the plaintiff clearly shows that the amount of Rs.1,93,611.62 was
deposited in the account of the defendant No.1 bearing
No.001530110000083. The amount was utilized by the defendants but
was not repaid by them to the plaintiff.
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10. The defendants though served with writ of summons
Exh.02 have failed to appear in the suit. The defendants had not
countered the allegations made by the plaintiff in the plaint. The
defendants had refrained from contesting the suit and had impliedly
admitted that they have no answer to the contentions of the plaintiff in
the plaint. The contentions raised by the plaintiff in the plaint have
gone unchallenged.
11. The plaintiff through its evidence of PW No.1 Rashmi
Dinesh Kujur and the documents had shown that the cash credit facility
of Rs.8,00,0000/ was sanctioned to the defendants. After that the
defendants had executed the documents marked at Exh.08 to Exh.12
colly.
12. It is specifically contended that the amount is not repaid by
the defendants. The evidence of PW No.1 Rashmi Dinesh Kujur shows
that the amount of Rs.7,57,719.70/ is the outstanding amount as on
26.06.2019. The evidence further shows that balance amount is
Rs.9,55,203.55/ towards the defendants. The plaintiff is entitled to
recover the same. The plaintiff had claimed the interest of 10.85.% p.a.
plus penal interest @2.00% till the final payment.
In circumstances of the case, it would be appropriate to
direct the defendants to pay to the plaintiff a sum of Rs.9,55,203.55
(Rupees Nine Lakhs Fifty Five Thousand Two Hundred and Three and
Fifty Five Paise Only). The defendants are further be directed to pay to
the plaintiff the interest at the rate of 10.85% per annum on the
principal amount of Rs.7,57,719.70 (Rupees Seven Lakhs Fifty Seven
Thousand Seven Hundred and Nineteen and Seventy Paise Only) from
the date of filing of suit till its realization. Hence, I answered point No.1
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“in Affirmative.”
In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The defendants are directed to pay to the plaintiff a sum of
Rs.9,55,203.55 (Rupees Nine Lakhs Fifty Five Thousand Two Hundred
and Three and Fifty Five Paise Only). The defendants are further
directed to pay to the plaintiff the interest at the rate of 10.85% per
annum on the principal amount of Rs.7,57,719.70 (Rupees Seven Lakhs
Fifty Seven Thousand Seven Hundred and Nineteen and Seventy Paise
Only) from the date of filing of suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date:25.03.2021 Gr.Bombay at Mumbai.
Dictated on : 25.03.2021
Transcribed on : 09.04.2021
Signed by H.H.J.on : 09.04.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.04.2021 at 1.35 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
25.03.2021
Judgment/order signed by P.O. on 09.04.2021
Judgment/order uploaded on 20.04.2021
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