Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Com. Suit No.1308/2021 -: 1 :- Judgement
MHCC010019122020
Presented on : 12.02.2020
Registered on : 27.11.2021
Decided on : 03.07.2024
Duration : YY: MM: DD
04: 04 : 21
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 1308/2021
Exhibit-19
Kotak Mahindra Bank Ltd.,
A banking company within the meaning of
Section 5(c) of the Banking Regulation Act,
1949 (10 of 1949) and Incorporated under the
Companies Act, 1956 and having office at: 27,
BKC, C27, G-Block, Bandra Kurla Complex,
Bandra (East), Mumbai- 400 051. ... Plaintiff.
V/s.
1.Vardayini Logistics (Borrower),
Address: Office No. 504, 5th Floor, Concorde,
Plot No. 66, Sector 11, CBD Belapur, Navi
Mumbai 400 614.
2. Rakeshchand Dubey (Proprietor)
Address: Raghunath Apartment Flat No. 101,
Plot No. 36-37, Sector 14, CBD Belapur, Navi
Mumbai 400 614. ... Defendants.
CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA. D. KEDAR
(COURT ROOM NO.14)
DATE : 03.07.2024
-: Appearances: -
Ld. Adv. Abhishek Bhaduri for the plaintiff.
Defendant’s Ex-parte.
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Com. Suit No.1308/2021 -: 2 :- Judgement
JUDGMENT
The present suit has been filed by the plaintiff for recovery of
sum of Rs.7,95,940.83/- as on 21.02.2019 together with interest @
13.95% per annum with monthly rests on Rs.7,95,940.83/- from the
date of filling of the suit till its full realization.
2. Briefly stated facts of the case are as under: -
The plaintiff is a Banking Company incorporated and existing
under the laws of Federal Republic of Germany Deutsche Bank. The
plaintiff is engaged in the banking business including extending various
types of loan facilities.
3. The defendant No.1 is a Proprietorship Firm (Borrower), and
defendant No.2 is the Proprietor of defendant No.
4. It is submitted that, the defendant No.2 on behalf of the
defendant No.1, approached to the plaintiff’s bank with request for
business loan of Rs.15 Lakhs
vide application dated 03.05.2014.
Considering the request, the plaintiff by sanction letter dated
21.05.2014 and upon execution of various documents in favour of the
plaintiff sanctioned Business Installments Loan of Rs.15 Lakhs to the
defendants. Defendants agreed to repay the said loan amount in 36
equated installments of Rs.51,230/- plus interest @ 13.95% per annum
with monthly rest with repayment with commencing from 05.07.2014.
5. On availing loan facilities, defendants were irregular in making
the payment of loan amount. Despite numerous reminders, letters and
phone call, the defendants failed to regularize the account Thereafter,
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Com. Suit No.1308/2021 -: 3 :- Judgement
the plaintiff had issued demand notice dated 26.03.2019 through its
advocate to the defendants, thereby calling upon them to make the
payment of outstanding amount. In spite of receiving notice, the
defendants failed and neglected to pay the outstanding amount.
6. Thereafter, the plaintiff filed Pre-Institution Mediation
Application on14.05.2019, but the defendants failed to appear. Hence,
the Secretary DLSA, Mumbai has issued Non-Starter Report dated
16.11.2019. Hence, the suit for recovery of above said amount.
7. Despite of service, defendants failed to appear, hence, matter
proceeded Ex-parte against them
vide order dated 21.03.2022.
8. In support of its claim, the plaintiff has examined PW-1 Sanjay
Pawar, Authorized Representative of the plaintiff’s bank at Exh.7. The
plaintiff got proved documents through this witness filed along-with list
Exh.8. The plaintiff has filed Evidence Closing Pursis at Exh.18.
9. Heard the learned Advocate for the plaintiff. Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows: -
Sr. No. Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of
Rs.7,95,940.83/- as on 21.02.2019
together with interest @ 13.95%
per annum with monthly rests on
Rs.7,95,940.83/- from the date of
filling of the suit till its full
realization, as claimed?
Partly Yes.
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Com. Suit No.1308/2021 -: 4 :- Judgement
2. What Order and Decree? As per final order.
REASONS
As to point no.1:
11. The plaintiff has examined PW-1 Sanjay Pawar. He deposed as
per the contents of the plaint averments. Hence, I do not want to
reproduce the same to avoid the repetitions. The plaintiff has filed copy
of copy of Resolution dated 29.08.2023 (Exh.10), thereby witness be
authorised to depose on behalf of the plaintiff’s bank. The testimony of
witness remained unchallenged.
12. Defendants have obtained Business Loan Facility of Rs.15 Lakhs
from the plaintiff’s bank. At that time, defendants have executed certain
documents such as; Deed of Assignment dated 24.03.2022 (Exh.9);
Business Instalment Loan application dated 03.05.2014 (Exh.11);
Original Letter of Sanction dated 21.05.2014 (Exh.12); Business
Instalment Loan Agreement dated 21.05.2014 (Exh.13); Original
Electronic Clearing Service (Debit Clearing) Mandate From dated
21.05.2014 (Exh.14). However, the defendants were irregular in
making payment of installments. In spite of repeated reminders, the
defendants failed to clear the outstanding dues. Thereafter, the plaintiff
has issued Demand Notice dated 26.03.2019 (Exh.15 Colly). As per the
Statement of Account, Certificate under Section 65-B and relevant
certificates under Bankers Book of Evidence (Exh.16 Colly.) and
Particulars of Claim (Exh.17), there is an amount of Rs.7,95,940.83/- is
due upon the defendants.
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Com. Suit No.1308/2021 -: 5 :- Judgement
13. It is further to be seen that, the plaintiff issued Pre-Institution
Mediation notice in view of mandate of Section 12-A of the Commercial
Courts Act on 14.05.2019. In spite of notice, the defendants failed to
appear before Mediation Centre. Thus, the Secretary DLSA Mumbai has
issued non-starter report dated 16.11.2019. Hence, the period during
which the parties remained occupied with the pre-institution mediation;
such period shall not be computed for the purpose of limitation under
the Limitation Act. The defendants have made the last payment on
30.11.2016. Period of six months and two days occupied for the pre-
institution mediation. Hence, the suit lodged on 12.02.2020 is well
within limitation.
14. On the basis of oral and documentary evidence the plaintiff duly
proved that the defendants are liable to pay principal amount of
Rs.7,95,940.83/-. So far as rate of interest is concerned, I am of the
view that looking to the nature of business transaction and current bank
rate of interest, if the defendants are directed to pay the interest @ 9%
p.a., then it will sub-serve the purpose. Thus, in view of my above
discussion, I answer to point No.1 in partly affirmative.
AS To POINT NO.2.
15. In view of my above discussions, I pass the following order;
ORDER
1. Commercial Suit No.1308/2021 is decreed with Costs.
2. Defendants do pay jointly and severally an amount of Rs.7,95,940/-
together with interest @ 9% per annum from the date of filing of suit
till its full realization.
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Com. Suit No.1308/2021 -: 6 :- Judgement
3. Decree be drawn up accordingly.
4. Commercial Suit No.1308/2021 disposed of accordingly.
(Virendra D. Kedar)
District & Addl. Sessions Judge,
City Civil & Sessions Court,
Date:.03.07.2024 Mazgaon, Gr. Mumbai
(C.R. No.14)
Dictated on : 03.07.2024
Transcribed on : 03.07.2024
Signed on : 03.07.2024
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Com. Suit No.1308/2021 -: 7 :- Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 04.07.2024 NAME OF STENOGRAPHER
TIME: 01.30 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
03.07.2024
JUDGMENT/ORDER signed by P.O.
on
03.07.2024
JUDGEMENT/ORDER uploaded on 04.07.2024
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