Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 451/2020
Lodged on : 12.02.2020
Admitted on : 05.08.2020
Decided on : 07.01.2023
Duration : Y M D
2 10 21
COMMERCIAL SUIT NO. 451 of 2020
CNR NO. : MHCC010019032020
Exh.10
Canara Bank, a body corporate
constituted and functioning under the
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970,
having its Head Office at 112, J.C. Road,
Bangalore, Karnataka State and having
one of their branch office at 10
Homji Street, Fort, Mumbai – 400 023. ...Plaintiff
Versus
M/s. Sharma Tours and Travels
A Proprietary concern, through its
Proprietor Mr. Nishant Ashok Sharma
Aged 34 years, Indian Inhabitant
at 304 Dolly Chambers, Brahma Kumari
Marg, Colaba, Mumbai – 400 005.
And also at
36/13 CPO's Quarter, Pilot Bunder,
Near Afghan Church, Colaba. ...Defendant
Appearance:
Adv. Ms. Sujata Dahigaonkar for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 7th JANUARY 2023
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2 Judgment in Com. Suit No. 451/2020
J U D G M E N T
(Delivered on : 07.01.2023)
This is a suit filed by the plaintiff bank against the
defendant for the recovery of the amount of Rs.5,44,213.35ps along
with interest at the rate of 10.75% per annum with monthly rests from
the date of filing of the suit till realization.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a body corporate constituted under the
Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970
having its Head Office at Bangalore and one of its branch office
amongst others known as Canara Bank, Fort branch at Fort, Mumbai.
The defendant approached the plaintiff bank for a term loan of
Rs.6,86,000/ . The defendant agreed to execute several security
documents in favour of the plaintiff. In consideration of the documents
executed by the defendant, the plaintiff sanctioned term loan of
Rs.6,86,000/ to the defendant on 14.09.2015 for purchase of vehicle.
As per the terms of the sanction of loan, it was agreed to repay the said
loan in 83 monthly installments. The defendant executed the
documents in favour of the plaintiff namely Loan Application Form,
particulars of the assets and liabilities, Sanction letter, Deed of
Hypothecation of vehicle and receipt dated 14.10.2015 and letter of
authority to debit the monthly installment.
3. The plaintiff bank further submitted that the bank granted
and disbursed the said loan of Rs.6,86,000/ to the defendant in
consideration of defendant promising to repay the said loan and
interest. However, the defendant has failed to repay the said loan
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3 Judgment in Com. Suit No. 451/2020
amount. Therefore, the plaintiff sent notice through his Advocate on
13.12.2018 calling upon him to make the payment of outstanding
amount. At the foot of the account, there is now due of
Rs.5,44,213.35ps as on 09.02.2020 together with interest. According to
the plaintiff, the total amount of Rs.5,44,213.35ps is outstanding from
the defendant. Hence, the plaintiff is constrained to file the said suit for
the recovery of the amount of Rs.5,44,213.35ps against the defendant
along with interest at the rate of 10.75% per annum from the date of
filing of the suit till realization.
4. The suit summons was duly served to the defendant
through paper publication in two newspapers. The defendant failed to
appear before the Court, though served with the suit summons. Hence,
as per order passed on 13.12.2022, the suit was proceeded exparte
against the defendant.
5. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff bank proves
that an amount of Rs.5,44,213.35ps
is outstanding from the defendant?
In the affirmative
2) Whether plaintiff bank is entitled
to recover an amount of
Rs.5,44,213.35ps from the
defendant? If yes, at what rate of
interest ?
In the affirmative.
At the rate of 11.25% per annum
on the principal amount.
3) What order and decree? As per final order.
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4 Judgment in Com. Suit No. 451/2020
R E A S O N S
6. In order to substantiate the claim, the plaintiff bank has
examined its Senior Manager namely Sharanprit Singh at Exh.6. The
plaintiff also placed on record the documentary evidence i.e. Original
Loan Application Form at Exh.8/1, Sanction letter at Exh.8/2, Loan
Agreement and Delivery Letter at Exh.8/3, Receipt dated 14.10.2015 at
Exh.8/4, Particulars of Assets and Liabilities at Exh.8/5, Authority
Letter at Exh.8/6, Recall Notice at Exh.8/7, Statement of Account at
Exh.8/8. The evidence closure pursis of the plaintiff is at Exh.9.
7. Heard Learned Advocate Ms. Sujata Dahigaonkar for the
plaintiff at length.
As to Point Nos.1 & 2
8. It is the case of the plaintiff that on the request of the
defendant, the plaintiff bank has advanced a loan of Rs.6,86,000/ to
the defendant for purchasing the vehicle. The defendant failed to
comply the terms and conditions stipulated in the security documents.
As a result of which, the account has become irregular. According to the
plaintiff, an amount of Rs.5,44,213.35ps is outstanding from the
defendant. At the outset, it is to be noted that the present suit is not
contested by the defendant. Though the suit summons was duly served
to the defendant, the defendant failed to appear before the Court and
resisted the claim of the plaintiff. Therefore, one can say that the
averments made by the plaintiff in the plaint were not challenged by the
defendant.
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5 Judgment in Com. Suit No. 451/2020
9. According to the plaintiff, the defendant has obtained the
loan on 14.09.2015 and the present suit is filed by the plaintiff on
12.02.2020. The Statement of Account shows that the part payment
was made in the year 20182019. Therefore, the limitation for filing the
suit will further extend for the period of three years from the date of
last part payment. In short, the period of limitation will extend from
16.11.2019 for the period of three years. Admittedly, the suit is filed on
12.02.2020. In my view, the present suit is filed by the plaintiff within
the period of three years from the last part payment.
10. P.W.1 i.e. plaintiff bank's Senior Manager namely
Sharanpreet Singh is examined at Exh.6. He has reiterated all the facts
pleaded in the plaint in his claim affidavit. He has specifically deposed
that the defendant received an amount of Rs.6,86,000/ from the
plaintiff bank and the defendant executed various documents in favour
of the plaintiff bank. According to this witness, an amount of
Rs.5,44,213.35ps is outstanding against the defendant. The aforesaid
evidence of the plaintiff's witness is not subjected to crossexamination.
Therefore, I have no reason to disbelieve the version of the plaintiff.
11. The plaintiff has also filed on record the original documents
executed by the defendant at Exh.8/1 to 8/8. Exh.8/1 is the loan
application form of the defendant in which the defendant requested the
plaintiff bank for advancing the loan of Rs.6,86,000/ to the defendant.
Exh. 8/2 is the Sanction letter which shows that on the request of the
defendant, the plaintiff bank has sanctioned the loan of Rs.6,86,000/
to the defendant and the period of repayment is 83 EMI. The said
sanction letter also shows the signature of the defendant and wherein
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6 Judgment in Com. Suit No. 451/2020
the defendant has acknowledged and accepted the terms and conditions
of the sanction. Exh.8/3 is the Hypothecation Agreement which shows
that the defendant by executing composite hypothecation agreement
hypothecated the vehicle by way of first charge in favour of the bank.
Exh.8/5 is the particulars of Assets and Liabilities. It bears the signature
of the defendant, which is not challenged by the defendant. The
Statement of Account at Exh.8/8 also shows that an amount of
Rs.5,44,213.35ps is outstanding from the defendant. The plaintiff also
placed on record the copy of notice at Exh.8/7, which shows that before
filing of the suit, the plaintiff bank sent notice to the defendant and
demanded due amount from the defendant. The aforesaid documentary
evidence tendered by the plaintiff was also not challenged by the
defendant.
12. All the documents produced by the plaintiff along with list
Exh.7 goes to establish that the plaintiff advanced a loan of
Rs.6,86,000/ to the defendant and the defendant has executed various
documents in favour of the plaintiff bank. Admittedly, the suit
proceeded exparte against the defendant. The plaintiff's claim is
supported by the documentary evidence. Therefore, the claim of the
plaintiff needs to be accepted. The plaintiff by leading oral as well as
documentary evidence sufficiently proved that an amount of
Rs.5,44,213.35ps is outstanding from the defendant. Hence, the
plaintiff is entitled to recover the said amount from the defendant.
13. So far as the rate of interest is concerned, the plaintiff has
claimed interest at the rate of 10.75% per annum on the principal
amount from the date of suit till realization. Sanction letter as well as
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other documentary evidence tendered by the plaintiff goes to show that
agreed rate of interest in between both the parties is 11.25% per
annum. As per agreed terms between the parties, the defendant is liable
to pay interest at the rate of 11.25% per annum on the principal
amount. Hence, I hold that the rate of interest at the rate of 11.25% per
annum would be just and proper to be awarded on the principal
amount. In short, the plaintiff is entitled to recover an amount of
Rs.5,44,213.35ps along with interest at the rate of 11.25% from the
date of filing of the suit till realization. Hence, I answer point no. 1 in
affirmative and point no. 2 accordingly.
14. In view of discussion and finding on point nos. 1 and 2, it is
held that the plaintiff is entitled to recover the outstanding amount of
Rs.5,44,213.35ps from the defendant along with interest at the rate of
11.25% per annum on the principal amount from the date of filing of
the suit till its realization. The plaintiff is also entitled to recover the
cost of the suit from the defendant. Hence, the suit needs to be decreed.
Hence, I pass the following order:
ORDER
1) Commercial Suit No. 451 of 2020 is decreed with costs.
2) The defendant do pay an amount of Rs.5,44,213.35ps
(Rs. Five Lakhs Forty Four Thousand Two Hundred
Thirteen and Thirty Five paise Only) to the plaintiff
bank along with interest at the rate of 11.25% per
annum on the principal amount from the date of filing
of the suit till its realization within three months from
the date of this decree.
3) Defendant shall bear the cost of the suit.
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4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 07.01.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 07.01.2023
Typed on : 07.01.2023
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9 Judgment in Com. Suit No. 451/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
09.01.2023 4.00 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
07.01.2023
Judgment/order signed by P.O on 09.01.2023
Judgment/order uploaded on 09.01.2023
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