Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 404/2020
Lodged on : 21.01.2020
Admitted on : 21.01.2020
Decided on :04.03.2023
Duration : 03Y 01M 11D
COMMERCIAL SUIT NO. 404 of 2020
CNR NO. :MHCC-0100-2374-2020
Exh.33
Union Bank of India
A body corporate
Constituted under the Banking Companies
(Acquisition and Transfer of Undertakings)
Act, 1970 having its Central Officer at
Union Bank Bhavan, 239, Backbay
reclamation, Nariman Point, Bombay
400 021 and and having htier Branch at,
Acharya Mahapragya Vidhya Nidhi
foundation Building, 32, Dadi Seth Agyari,
Kalbadevi Road, Mumbai 400 002.
Through Their Constituted attorney,
Mr. Kamal Narayan Rai, Asst. Gen. Manager ...Plaintiff
Versus
Mr. Samruddha Pandharinath Pable
Prop.M/s. PTP Enterprises
having its registered office at Shop No.6,
Rock Enclave CHS Ltd, 1st Floor, Hindustan
naka, Charkop, Kandivali 400 067. ...Defendant
Appearance:
Adv. Misbah Ansari i/b Adv. Jamshed Ansari for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 04th March 2023
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2 Judgment in Com. Suit No. 404/2020
J U D G M E N T
(Delivered on : 04.03.2023)
This is a suit filed by the plaintiff for the recovery of the
amount of Rs.11,46,402.65ps. along with interest at the rate of 12.50%
per annum 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 nationalized bank, registered under the
Banking Companies (Acquisition & Transfer of Undertaking) Act, 1970
and having its registered office at Nariman Point, Mumbai and having
branch office at Kalba Devi Road, Mumbai. The suit is filed by the
plaintiff bank through the Power of Attorney Holder namely Mr. Kamal
Rai. The defendant had taken a loan. The defendant applied and
availed the Term Loan of Rs.35,00,000/ on 06.02.2015 under scheme
of CGTMSE and the plaintiff bank has been sanctioned loan. The
defendant has executed the documents in favour of the plaintiff bank
i.e. demand promissory note, letter of continuity, agreement on rate of
interest, letter of undertaking, term loan agreement in favour of
plaintiff and the borrower duly signed the documents.
3. The plaintiff further submitted that as per the terms and
conditions mentioned in the documents, the defendant has agreed to
repay the loan amount along with interest. The defendant has defaulted
in repayment of outstanding amount. On several occasions, the plaintiff
called upon the defendant to repay the said amount but despite the
defendant failed to repay and his account has become irregular. The
defendant is liable to pay the interest over the said amount of
Rs.11,37,057.05ps. On 23.11.2019, the plaintiff has served notice to the
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3 Judgment in Com. Suit No. 404/2020
defendant pursuant to default in making repayment of due amount and
called upon him to pay the outstanding amount of Rs.11,46,402.65ps.,
but the defendant has failed and neglected to fulfill his legal obligations
and repayment of the loan amount. The defendant is a willful defaulter.
Therefore, the plaintiff has filed the present suit to recover the sum of
Rs.11,46,402.65ps. from the defendant along with interest at the rate of
12.50% per annum from the date of the filing of the suit. Plaintiff also
claimed the relief of declaration that there is valid and subsisting
hypothecation and all the goods and assets plaintiff has right to sale the
property.
4. The Writ of Summons was issued to the defendant through
paper publication. It was duly served to the defendant. The defendant
failed to appear before the Court. Hence, in view of order passed on
18.11.2021, the suit was proceeded exparte against the defendant.
5. In support of pleading, the plaintiff bank has examined its
Power of Attorney Holder namely Mr. Anand Kumar at Exh.7. The
plaintiff also placed on record documentary evidence along with list
Exh.8. The documentary evidence are at Exh.9 to 31. The evidence
closure pursis filed by the plaintiff is at Exh.32.
6. 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:
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4 Judgment in Com. Suit No. 404/2020
POINTS FINDING
1) Whether plaintiff bank proves
that an amount of
Rs.11,46,402.65ps. is outstanding
from the defendant?
In the affirmative
2) Whether plaintiff is entitled to
recover an amount of
Rs.11,46,402.65ps. from the
defendant? If yes, at what rate of
interest ?
In the affirmative.
At the rate of 13.75% per annum
on the principal amount.
3) What order and decree? As per final order.
R E A S O N S
7. Heard Learned Advocate Misbah Ansari i/b Adv. Jamshed
Ansari for 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 has sanctioned the loan of Rs.35,00,000/ to the
defendant on 06.02.2015. The defendant has executed various
documents in favour of plaintiff bank in order to secure the loan, but
the defendant has defaulted in repayment of the outstanding amount.
According to the plaintiff, the total amount of Rs.11,46,402.65ps. is
outstanding from the defendant. In the present case, the defendant has
not filed any Written Statement on record. The defendant has not
contested the suit. The defendant has not denied or disputed the
averments made by the plaintiff in the plaint. Therefore, an inference
can be drawn that the averment made by the plaintiff in the plaint were
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5 Judgment in Com. Suit No. 404/2020
deemed to have been admitted by the defendant.
9. In support of the pleading, the plaintiff bank examined its
Power of Attorney Holder namely Mr. Anand Kumar at Exh.7. This
witness is the Bank Manager of the plaintiff bank and who is holding
the Power of Attorney of the plaintiff bank. This witness has signed the
plaint and he is aware about the contents of the plaint. The evidence of
PW1 Mr. Anand Kumar is in consonance with the averment made in the
plaint. PW1 has reiterated the averment made in the plaint. This
witness has specifically deposed that on the request of the defendant,
the plaintiff bank has sanctioned the loan of Rs.35,00,000/ to the
defendant and the defendant has executed various document in favour
of the plaintiff bank in order to secure the said loan. According to this
witness, the defendant is liable to pay the total amount of
Rs.11,46,402.65ps. This witness has also proved the documentary
evidence at Exh.9 to 31. The evidence of this witness is not subjected to
the crossexamination. The defendant failed to take crossexamination
of the PW1. Therefore, the evidence tendered by this witness remained
unchallenged. Hence, I have no reason to disbelieve the version of PW1.
10. The oral evidence of the plaintiff is supported by the
documentary evidence produced by the plaintiff at Exh.9 to 31. Exh.7 is
the Power of Attorney executed by the bank in favour of PW1. Exh.9 to
11 is the loan application and sanction letter of the plaintiff bank. Said
document bears the signature of the defendant. Exh.12 is the original
Demand Promissory Note, Exh.16 is Original Term Loan Agreement and
Exh.20 is undertaking. Aforesaid documentary evidence tendered by the
plaintiff itself shows that on the request of the defendant, the plaintiff
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bank has sanctioned the loan in favour of the defendant and the
defendant has executed various documents in favour of the plaintiff
bank for securing the said loan. The documentary evidence tendered by
the plaintiff was not challenged by the defendant. Therefore, the
evidence of the plaintiff cannot be disbelieved.
11. In the present case, the oral as well as documentary
evidence tendered by the plaintiff was not challenged by the defendant.
Therefore, the plaintiff was constrained to issue a legal notice to the
defendant for making payment. The copy of demand notice at Exh.24
also shows that the notice was issued to the defendant for making
payment of the outstanding amount. The Statement of Account filed on
record at Exh.26 by the plaintiff shows that the amount of
Rs.11,46,402.65ps. is outstanding from the defendant. Thus, the oral as
well as documentary evidence shows that the amount of
Rs.11,46,402.65ps. is outstanding from the defendant. Therefore, the
plaintiff bank is entitled to recover the said amount from the defendant
along with interest.
12. So far as the rate of interest is concerned, the plaintiff has
claimed interest at the rate of 12.50% per annum. The copy of Sanction
letter shows that the agreed rate of interest between the parties is
13.75% per annum. Therefore, the plaintiff bank is entitled to recover
the outstanding amount of Rs.11,46,402.65ps. from the defendant
along with interest at the rate of 13.75% per annum. Hence, I answer
point no. 1 in affirmative and point no. 2 accordingly.
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7 Judgment in Com. Suit No. 404/2020
13. In the light of above discussion, it is concluded that the
plaintiff has sufficiently proved that the defendant has failed to repay
the loan amount to the plaintiff bank. Therefore, the plaintiff bank has
left with no other option but to take legal recourse by filing the present
suit for the recovery of the outstanding amount. The plaintiff has
sufficiently established that the total amount of Rs.11,46,402.65ps. is
outstanding from the defendant. Hence, the plaintiff is entitled to
recover the said amount from the defendant along with interest at the
rate of 13.75% per annum on the principal amount. The plaintiff is also
entitled to claim the relief of declaration that there is valid and
subsisting Hypothecation on all Goods, Book debts both present and
future and Assets and the Plaintiff has right to sell the same for recovery
of the amount outstanding. Therefore, the suit needs to be decreed.
Hence, I pass the following order:
ORDER
1) Commercial Suit No. 404 of 2020 is decreed with costs.
2) The defendant do pay an amount of Rs. 11,46,402.65ps
(Rs. Eleven Lakhs Fourty Six Thousand Four Hundred
Two Nine and Sixty Five Paise Only) to the plaintiff
bank along with interest at the rate of 13.75% per
annum on the principal amount from the date of filing
of the suit till realization within three months from the
date of this order.
3) It is hereby declared that there is valid and subsisting
Hypothecation on all Goods, Book debts both present
and future and Assets and the Plaintiff has right to sell
the same for recovery of the amount outstanding.
4) Defendant to bear the cost of the suit.
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5) Court fee, if any, be refunded to the plaintiff as per rule.
6) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 04.03.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 04.03.2023
Typed on : 04.03.2023
Signed on : 06.03.2023
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9 Judgment in Com. Suit No. 404/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
06.03.2023 5.15 p.m. Mahesh S. Lugade
Stenographer
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
04.03.2023
Judgment/order signed by P.O on 06.03.2023
Judgment/order uploaded on 06.03.2023
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