Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. Summary Suit No.290/2021
MHCC010010032020 Presented on : 20/01/2020
Registered on : 11/03/2021
Decided on : 02/12/2024
Duration : 04Y 10M 14D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT-25
SUMMARY SUIT NO.290 OF 2021
(CNR NO.MHCC01-001003-2020)
UBI (e-Corp Bank)
(CORPORATION BANK)
A Body Corporate constituted by and under the
provisions of the Banking Companies (Acquisitions
and Transfer of Undertaking) Act, 1980 having its
head office at Mangalore and also at Veena
Chamber, 21, Dalal Street, Fort, Mumbai,
Maharashtra – 400001, through the Manager, Fort
Branch.
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Versus
1. Sri Prakash Bapu Chimbalkar,
S. No. 16/1/91, Waghjal Nagar, Prerana
Hospital Lane, Ambamata Mandira Jawal,
Katraj, Pune – 411046, Maharashtra.
2. M/s Premier Ltd.,
58, Nariman Bhavan, 5th Floor, Nariman
Point, Mumbai 400 021 also at
Mumbai-Pune Road, Chinchwad,
Pune – 411019.
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] ..Defendants
Appearance :-
Learned Advocate Maya Majumdar for plaintiff.
None for defendants.
(Ex-parte)
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..2.. Summary Suit No.290/2021
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 02/12/2024.
J U D G M E N T
1 Instant suit is filed for recovery of amount. The plaintiff
bank has come with the case that plaintiff bank is a corporate body
constituted and established under the Banking Companies (Acquisition
and Transfer of Undertaking) Act, 1980, having its head office and
branch office as mentioned in cause title. Plaintiff is carrying on
business of bankers. Defendant No.1 is a borrower and defendant No.2
is a guarantor.
2 It is the case of plaintiff bank that the defendant No.1
approached the plaintiff bank for vehicle loan for purchase of brand
new Premier Rio + GLX (Petrol BS IV) car at the costs of Rs.7,02,812/-.
The defendant No.2 stood as a guarantor for the said loan. The plaintiff
bank sanctioned the loan on 20/03/2014 of Rs.6,32,000/- vide sanction
letter, thereby agreeing to the terms and conditions of the bank by
defendant No.1. The plaintiff bank has sanctioned loan at the interest
rate of 10.65% per annum. In consequence to the sanction of loan, the
defendant No.1 has executed documents mentioned in paragraph No.3
of the plaint. It is further contended by the plaintiff that the said loan
was disbursed to defendant No.1, but he failed and neglected to repay
the monthly installments regularly. Defendant No.1 has paid the last
installment on 30/03/2019. The plaintiff Bank had requested defendant
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..3.. Summary Suit No.290/2021
No.1 to regularize the loan account, but he failed to pay loan
installments which resulted the account to be classified into Non
Performing Asset (NPA) on 22/04/2019. Despite repeated reminders
and request, defendant No.1 failed to regularize the loan account. It is
the contention of plaintiff that defendant No.1 is in due of amount of
Rs.2,86,416/- as on 22/11/2019. Plaintiff has issued notice on
09/12/2019 calling upon defendants to pay the balance amount, but in
vain. Hence, plaintiff filed this suit for recovery of balance amount of
Rs.2,86,416/-.
3 The summons were served upon the defendants, but they
failed to appear before the Court, therefore, as per order in
roznama
dated 09/06/2022, suit proceeded ex-parte against the defendants.
4 During the course of argument, plaintiff came to know that
defendant No.2 is under liquidation and moratorium is running against
defendant No.2. Hence, plaintiff filed an application for proceeding
against defendant No.1 only, keeping its right reserved to proceed
against defendant No.2 as and when the moratorium against defendant
No.2 is set aside. Consequently, plaintiff is permitted to proceed against
defendant No.1 only.
5 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that it advanced
loan to defendant No.1 of Rs.6,32,000/- ?
Affirmative
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..4.. Summary Suit No.290/2021
POINTS FINDINGS
2 Does the plaintiff prove that defendant
No.1 failed to repay the loan as agreed ?
Affirmative
3 Does the plaintiff prove that it is entitled
to charge interest as prayed for ?
Partly Affirmative
4 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
5 What order ? As per final order.
REASONS
6 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied upon various
documents (Exhibit-10 colly to 23 colly) under list (Exhibit-09). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :-
7 The evidence of authorized person of plaintiff remain
unchallenged. The record discloses that defendant No.1 has executed
the loan document in favour of the bank, availed the loan facility, but
failed to repay the loan installment amount as agreed. Plaintiff bank has
filed loan application (Exhibit-10 colly), Credit Sanction letter
(Exhibit-11 colly) of Rs.6,32,000/-, Agreement for Term Loan of
Rs.6,32,000/- (Exhibit-12 colly), Agreement for hypothecation (Exhibit-
13 colly), letter of undertaking/declaration (Exhibit-14 colly) alongwith
various legal notices and their respective replies. The default of
defendant No.1 shows that he has deliberately avoided to pay the loan
amount, thus, the plaintiff bank is entitled for recovery of the same. As
per the Statement, the plaintiff bank has adjusted auction amount of
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..5.. Summary Suit No.290/2021
Rs.50,000/- against the loan amount, leaving behind Rs.2,41,674/- as
on 24/01/2020. Hence, plaintiff is entitled for recovery of
Rs.2,41,674/- with interest from 25/01/2020.
8 The defendant No.1 remained absent though served, matter
proceeded ex-parte which is sufficient to draw an inference that
defendant No.1 has not repaid the due amount and committed default.
The plaintiff bank having business of banking is based on public fund,
therefore, the plaintiff bank is entitled to recover the due amount from
the defendant No.1 as prayed for. In view of above discussions, I answer
point Nos.1 and 2 in affirmative.
9 So far as interest is concerned, plaintiff is claiming interest
at the rate of 10.65% per annum from defendant No.1, to me, it appears
to be exorbitant. No doubt plaintiff has suffered loss in business and
profit, due to failure to repay the amount by the defendant No.1. Had it
been paid to the plaintiff as per demand, it would have invested and
would have earned profit therefrom. Therefore, I am of the view that
plaintiff is entitled for interest at the rate of 9% per annum from
25/01/2020, till its full realisation. In view of above discussions, I
answer point No.3 in partly affirmative.
10 It is a suit where defendant No.1 is a borrower and
defendant No.2 is a guarantor, therefore, plaintiff is entitled to recover
the due amount from defendant Nos.1 and 2 jointly and severally. As
defendant No.2 is under liquidation and moratorium is running against
it, plaintiff may proceed against defendant No.1 severally to recover the
amount and may proceed against defendant No.2 as and when
defendant No.2 become active, if loan amount is not recoverable from
defendant No.1 fully.
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11 As the plaintiff bank is made constrained to file the suit for
recovery of loan amount, therefore, defendant No.1 is liable to pay the
costs of suit. In the result, I answer point No.4 accordingly and proceed
to pass the following order :-
ORDER
1. Summary Suit No.290 of 2021 is hereby partly
decreed with costs.
2. Plaintiff do recover an amount of Rs.2,41,674/- from
defendant No.1 alongwith interest at the rate of 9%
per annum from 25/01/2020, till realisation of entire
amount.
3. Summary Suit No.290 of 2021 stands disposed of
against defendant No.2.
4. Court fees, if any, be refunded as per rule.
5. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 02/12/2024 C.R. No.84
Dictated on : 02/12/2024.
Draft checked on : 02/12/2024.
Signed by HHJ on : 03/12/2024.
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..7.. Summary Suit No.290/2021
“Certified to be true and correct copy of the original signed order”.
03/12/2024
at about 4.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 02/12/2024
Order signed by Hon'ble Judge on : 03/12/2024
Order uploaded on : 03/12/2024
at about 4.45 p.m.
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